George W. Bollman & Co.

In the Matter Of GEORGE W. BOLLMAN & COMPANY and WOOL HAT WORKERS LOCAL 99, AFFILIATED WITH THE UNITED HATTERS, CAP & MILLINERY WORKERS INTERNATIONAL UNION, AND WITH THE AMERICAN FEDERATION OF LABOR Case No. C-1517.-Decided February 17, 1941 Jurisdiction : hat manufacturing industry. Unfair Labor Practices. In General: held: that certain employees were not supervisory employees and that the respondent was not responsible for their 'anti-union activities; anti- union activities of a physician, who is one of three to whom the respondent sent injured employees, held not attributable to the respondent Discrimination: alleged discriminatory discharge of three employees, dismissed. Practice and Procedure : complaint dismissed. Mr. Geoffrey J. Cunniff , for the Board. Drinker, Biddle ci Reath, by Mr. Lewis H. Van Dusen, Jr., of Philadelphia, Pa., for the respondent. Syme c0 Simons, by Mr. Maurice Abrams, of Philadelphia, Pa., for the Union. Mr. Harry Cooper, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Wool Hat Work- ers Local 99, affiliated with the United Hatters, Cap & Millinery Workers International Union, and with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region - (Philadelphia, Pennsylvania), issued its complaint, dated January 18, 1940, against George W. Bollman & Company, Adams- town, Pennsylvania, 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 accompany- 29 N. L. R. B., No. 115. 663 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing notice of hearing were duly served upon the respondent and the Union. Concerning the unfair labor practices, the complaint alleged, in substance, (1) that the • respondent had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; and (2) that the respondent, on or about August 25, 1939, discharged Luther Dietrich, Robert Beck, and John Klassen, because of their membership and activity in the Union. On January ,26, 1940, the respondent filed an answer to the complaint, denying that it had engaged in the unfair labor practices alleged in the com- plaint, and alleging that Luther Dietrich, Robert Beck, and John Klassen were discharged because the respondent was informed and believed that they were guilty of dishonesty in connection with the performance of their work. Pursuant to notice, a hearing was held in Reading, Pennsylvania, from February 5 to 9, 1940, before Webster Powell, the Trial Exam- iner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. At the close of the Board's case and at the close of the hearing the respondent moved that the complaint be dis- missed. The Trial Examiner denied this motion at the close of the Board's case, reserved ruling upon it at the end of the hearing, and granted the motion in his Intermediate Report. At the end of the hearing, counsel for the Board moved that the pleadings be con- formed to the proof as regards dates, spelling of names, and similar matters. This motion was granted without objection. During the course of the hearing the Trial Examiner made numerous other rulings on motions and on objections to the admission of evidence, and in "his Intermediate Report the Trial Examiner ruled upon mo- tions as to which he had reserved ruling during the hearing. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 20, 1940, the Trial Examiner filed his Intermediate Re- port, copies of which were served upon the Company and the Union, finding that the respondent had not engaged in any unfair labor practices affecting commerce and recommending that the complaint be dismissed. Thereafter the respondent and the Union filed excep- tions to the Intermediate Report and the Union filed a brief in sup- port of its exceptions. The respondent filed a brief in support of the Trial Examiner's recommendations. Pursuant to request therefor by the Union and notice served upon the parties, a hearing for the GEORGE W.. BOLLMAN, & COMPANY 665 purpose of oral argument was held before the Board in Washington, D. C., on August 1, 1940. The respondent and the Union were represented by counsel who participated in the argument. The Board has considered-the exceptions to the Intermediate Re- port and, save as the exceptions are consistent with the findings of fact, conclusions of law, 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 The respondent, George W. Bollman & Company, is a copartner- ship, consisting of George W. Bollman, Fred G. Bollman, Paul W. Bollman, Richard G. Bollman, and George C. Bollman, organized under the laws of Pennsylvania, and having its office and plant in Adamstown, Pennsylvania. It is engaged in the manufacture, sale, and distribution of ladies' hat bodies and men's finished hats. Among other raw materials, the respondent uses wool, dyestuffs, chemicals, silk, trimmings, linings, and paper. Approximately 75 per cent of these raw materials are transported to the respondent's plant from points outside the State of Pennsylvania. Annually the respondent's products have a value of more than $1,000,000. Of such products, 75 per cent are transported from the respondent's plant to and through States other than the State of Pennsylvania. II. THE' ORGANIZATION INVOLVED Wool Hat Workers Local 99, affiliated with the United Hatters, Cap & Millinery Workers International, Union, and with the Amer- ican Federation of Labor, is a labor organization admitting to its membership production employees of the respondent. - III. THE ALLEGED UNFAIR LABOR PRACTICES A. Alleged interference, restraint, and coercion In 1938 the Union made an unsuccessful attempt to organize the respondent's employees. In May,1939 the Union -began another organizational campaign and, by the first part of August 1939, had obtained about 250 applications for membership from the respondent's employees. On July 10, 1939, George C. Bollman, one of the two principal partners in charge of production and the general business of the re- spondent, learned of the Union's organizing campaign. Upon the advice of counsel, Bollman conferred with the respondent's various 666 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD supervisory, employees during the following day and instructed them, in substance, not to interfere with organizational efforts among the employees and not to discuss with employees the matter of labor organizations. On September 1 Boliman reiterated these instructions to'the supervisory employees. In the latter part of July or early in August 1939 John Klassen, a night presser, solicited another employee to join the Union in the plant during working hours. This employee reported the solicitation to Rudolph Brossman, the night foreman . Klassen testified that Brossman then questioned him concerning his solicitation of the em- ployee, instructed him to cease solicitation for the Union during working hours since such activity was improper, and added that "it wasn't very wise if [Klassen ] considered [his] job worth anything." In his testimony, Brossman, in substance, denied having made these remarks, or having spoken to Klassen about unions. We credit Brossman's testimony in this regard, as did the Trial Examiner. Stella Spitler, an employee , testified that in July 1939, during work- ing hours, Henry Dietrich, her "boss" told her that he had seen her at a meeting of the Union, and warned her that she might lose her job because of such activity. Spitler further testified that on another occasion when she asked Dietrich for some thread, he asked her whether she wanted union-made thread and stated, "You had better take, the other kind, it is best in the long run." Dietrich denied hav- ing made the, remarks attributed to him by Spitler. We credit Dietrich's testimony in this regard, as did the Trial Examiner. More- over, we find, as did the Trial Examiner , that it is not clear from the record that Dietrich is a supervisory employee. Klassen and Luther Dietrich , a presser, testified concerning, cer- tain allegedly anti-union remarks made to them by Nathan Hause- knetch, an inspector in the - pressing department . The respondent disclaims responsibility for Hauseknetch's remarks. It appears that Hauseknetch is one of several inspectors in the men's finished hat department. There is a conflict in the testimony as to whether he exercised any authority over, or gave orders to, employees in the pressing division of that department. According to witnesses for the respondent , his duties merely consisted of inspecting hats, to see that they were properly pressed. If he found a hat creased or crooked, he would return it to the presser for repressing . If he con- sidered that hats needed repressing for other reasons, he would con- sult with the superintendent,, Wilbur Glass, and upon the latter's instructions, he would inform the pressers to repress the hats. A number of pressers testified that Hauseknetch gave them orders in the pressing department. Wilbur Glass, in his testimony, denied that Hauseknetch gave any, orders except with regard to repressing GEORGE W. BOLLMAN & COMPANY 667 and then only, upon his instructions, and testified that no employees worked under Hauseknetch. The Trial Examiner found that Hause- knetch had no authority to give orders to the pressers except regard- ing matters on which he had previously received instructions from the superintendent. We accept Wilbur Glass' testimony regarding Hauseknetch's position and authority and find, as did the Trial Examiner, that Hauseknetch is not a supervisory employee. We find that the respondent is not responsible for the remarks attributed to Hauseknetch by Klassen and Luther Dietrich. The record discloses considerable anti-union activity on the part of Fred Glass, a shipping-department employee and brother of Wil- bur Glass. Fred Glass' duties consisted of filling missing parts of orders in preparation for shipment. In the course of his duties he moved through various divisions of the men's finished hat depart- ment as well as other departments.- The evidence shows that in the course of delivering hats upon orders from Wilbur Glass, Fred Glass transmitted instructions from his brother to a number of employees, including a foreman in the finishing department, regarding the work to be done on such hats. There is also testimony that Fred Glass gave "orders" to certain employees. ' It does not appear, however, that employees to whom Fred Glass transmitted instructions or gave "orders" considered him to be a supervisory employee. Wilbur Glass testified that his brother had no authority of his own to give instructions to employees and Fred Glass testified that he gave no instructions on his -own authority. The evidence shows that some of Fred Glass' anti-union activity took place in the plant during working-hours. However, some solicitation in behalf of the Union also occurred during working hours. Nor-does it appear that any of the respondent's supervisory employees were aware of Glass' anti- union activity during working hours. We find, as did the Trial Examiner, that Fred Glass is not a supervisory employee. We fur- ther find that the respondent is not responsible for his anti-union activity, because of his asserted supervisory status or for any other reason. , The record also discloses that one Dr. Ziemer, a physician practic- ing in Adamstown, made a number of anti-union remarks to two of the respondent's employees. Dr. Ziemer is one of three physicians 1 to whom the respondent sends employees, who are injured in the course of their work, for treatment. The respondent does not pay Ziemer a salary or retainer, but pays him fees of not more than $200 annually for such treatment of employees. Dr. Ziemer is the family doctor of certain of the respondent's employees, as well as of George i Two of these physicians are the only physicians in Adamstown. The third is located at Reading, Pennsylvania. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Bollman, his father George W. Bollman, and his, brother Paul W. Bollman. Luther Dietrich testified that on one occasion ' when Dr. Ziemer made anti-union statements to' him, Ziemer spoke as follows : "I talked to the Bollmans this morning and they told me they might not say anything about it [the Union], but for him [sic ], that he should." Ziemer did not testify at the hearing . In their testimony, each of the five Bollman brothers who are active in the respondent's business,-and four-of whom are partners therein, in substance denied ever having any conversation with Ziemer about the Union . George C. Bollman testified that his father, who did not testify, was no longer active in the respondent's business, because of illness, and that he had no knowledge of organizational efforts by the Union among the em- ployees. Under all the circumstances, we find, as did the Trial Examiner, that Ziemer's anti -union activities are not attributable to the respondent. - There were , introduced in evidence a number of typewritten state- ments, reciting , in narrative form, and in the third person, certain al` leged conversations between Adam . Dietrich, an employee, and his foreman, Eugene Fritz , in which Fritz is alleged to have made anti- union remarks. According to the testimony of Earl Booth, district manager of the Union, Adam Dietrich orally reported such conversa- tions in July 1939 at meetings of the Union and Booth wrote down the reports. Thereafter, sometime between the middle of September and the middle of November , the statements were placed in their present typewritten form and Adam Dietrich affixed his signature to them to a meeting of the Union. Luther Dietrich, Adam Dietrich's' brother, corroborated Booth's testimony as to the signing of -the statements by Adam Dietrich . Adam Dietrich's testimony was eva- sive and unreliable . He admitted that the signatures looked like his, but denied or could not recall having made or signed the statements. He further denied that any foreman ever spoke to him about the Union and testified that he could not recall the conversations in ques- tion. The Trial Examiner found that "The manner in which the statements signed by Adam Dietrich were secured ; the length of time which elapsed between the' date they were given to Booth and the date they were signed ; the general -unreliability of Adam Dietrich's testimony ; and his denial that any foreman had ever talked to him on the subject of unions make it impossible to rely on these state- ments, and no credence is given to them. " We agree with the Trial Examiner and find that the statements cannot be relied-upon. We find, as did the Trial Examiner, that the respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. GEORGE W. BOLLMAN & COMPANY - 669 -B. Aleged discrimination in regard to hire and 'tenure of employment _ The complaint alleges that the respondent discharged Luther Dietrich, Robert Beck, and John Klassen, because of their member- ship and activity in the Union. In its answer the respondent alleges that these employees were discharged because the respondent believed that they were guilty of dishonesty in connection with the per-, formance of their work. - Prior to their discharge on August 25, 1939, Luther Dietrich had worked for the respondent off and on for 13 or 14 years, Beck steadily for over 5 years, and Klassen for about 1 year. At the time of his discharge each of these employees was engaged in pressing hats in the pressing department. Dietrich and Beck worked on the day' shift, as did two other pressers, James Brendle and Edwin Moyer. Klassen worked on the night shift, as did one other presser, Austin Hartranft. Dietrich, Beck, and Klassen were among the most active members of the Union. Dietrich was chairman, Beck was assistant to the chairman, and Klassen was secretary. Brendle and Moyer were also active members of the Union ; and Hartranft was a member. - There is no credible evidence, however, that the' respondent knew at the time of their discharge that Dietrich, Beck, and Klassen were members of the Union or active therein. Luther Dietrich testified that on the evening of August 24, he, Booth, and Earl Blimline, an employee, were distributing union leaflets on the main street of Adams- town when George C. Bollman drove up in his car, slowed down when he drew opposite the men, pulled over to the curb, looked at them, and continued on his way. Bollman denied the incident. Al- though both Blimline and Booth testified, neither of them was ques- tioned as to the occurrence. We credit Bollman's, denial as to this, as did 'the Trial Examiner. Beck testified that during the latter part of August he was distributing union leaflets in front of the respondent's plant and was seen doing so by Foreman Fritz and Paul Bollman, a partner in the respondent's business. Bollman denied ever having seen ' Beck distributing leaflets. Fritz did, not testify. There is no showing that the incident occurred prior to Beck's discharge. For some time prior to August 25, the pressers worked on a piece- rate basis and each-presser kept his own daily tally of the number of dozens of hats pressed by him and marked such number on his time card. In the middle or the latter part of July Superintendent Wilbur Glass suspected that discrepancies existed between the number. of hats reported by- the pressers as having been pressed by them and' the number actually pressed. His suspicions derived from the fact 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he observed a variance between the reports of the pressers and similar reports made by employees on the trimming lines, to which the pressed hats moved from the pressing department. Later that month Herbert Beam, the rack boy, who supplied the pressers with hats, confirmed Wilbur Glass' suspicions when he told him that he, Beam, thought that the pressers were reporting more dozens of hats than they were pressing. Glass and Beam then conducted a check on the pressers for 2 days and on July 25 Glass reported to George' C: Bollman that there were discrepancies between the pressers' re- ports and the number of hats pressed by them. Bollman told Glass to continue the check. Since discrepancies continued to appear, Boll- man, on August 1, ordered a more detailed check to be made. Glass instructed Beam and Night Foreman Brossman to keep track of the dozens of hats given to each presser, by shape and order number. The records kept by Beam and Brossman were transferred by Wilbur Glass daily to more permanent records, and Glass also noted on his records the number of hats reported to him by the pressers, as having been pressed by them. A 'systematic check was kept in this fashion from August 1 to 25, 1939, on the six pressers then in the respondent's employ. The pressers knew that they were being checked during this period. On August 25 George C. Bollman summoned Dietrich to his office, informed' him that the respondent's records showed that he was handing in "crooked reports" and asked for an explanation. Diet- rich denied having reported more hats than he had pressed and asked whether represses had been taken into account. Bollman replied in the affirmative and then discharged Dietrich. • Beck and Klassen were discharged by Bollman on the same day under similar circumstances. Glass' records, upon which George C. Bollman relied in discharging Dietrich, Beck, and Klassen, indicate that for the period from August 1 to 25, inclusive, Dietrich, Beck, and Klassen_ credited themselves vvith approximately 134, 90, and 40 dozen more hats, respectively, than were actually pressed by them.' During this period, according to Glass' records,, the three other pressers, Moyer, Brendle, and Hart- ranft, credited themselves with approximately 13, 4, and 4 dozen more hats, respectively, than were actually pressed by them. George C.- Bollman testified that it was a reasonable margin of error for a presser to credit himself on any one day with one dozen more hats 2 Glass' records contain'a mathematical error regarding the total number of bats pressed by Klassen on August 1. As a result of this error, Klassen is credited by Glass with hav- ing pressed more hats than the figures Indicate he did. Another mathematical error appears on the slip containing Brossman's original check of Klassen's work on August 24. By this error Klassen is credited with having pressed fewer hats than he did on that day. However, in discharging Klassen, Bollman relied on Glass' records which incorporate Brossman's error. Moreover, Brossman's error does not appear to have been deliberate. GEORGE W. BOLLMAN & COMPANY 671 than he pressed. Glass' records indicate that Moyer exceeded this reasonable margin of error on only 2 days, when he credited himself with 9 dozen and 21/2 dozen more hats, respectively, than he pressed ; Brendle, on only 2 days, on each of which days he credited himself with' 2 dozen too many hats; and Hartranft, on only 1 day, when he credited himself with 2 dozen too many hats. Dietrich, Beck, and Klassen, according to Glass' records, repeatedly exceeded the reason- able margin of error, in substantial amounts, as indicated by the totals noted above. - At the hearing the three discharged pressers denied having re- ported more hats than they had pressed and testified, apparently in explanation of the discrepancies' between their reports and the num- ber of hats pressed, as shown by Glass' records, concerning instruc- tions allegedly received by them and the other pressers to repress hats which, in their judgment, were defectively pressed' through no fault of their own, to take extra credit for such repressing, and to take extra credit whenever a die was changed for the pressing of a dozen or fewer hats. The respondent denies that any such instructions were given by it. It appears that pressers did not repress hats de- fectively pressed through.no fault of their own, unless the hats were delivered to them for repressing upon authorization by Glass and. Glass' records show credits for such represses as were authorized by him. Moreover, Glass' records show that on only one occasion, dur- ing the period of the check, was a die changed to press a dozen or fewer hats. Furthermore, although the other three pressers, accord- ing to the testimony of the discharged pressers, received the same instructions regarding the taking of extra credit, their reports as to, the" number of hats pressed by them do not differ substantially from the number shown by the respondent's check.- Under all the circum- stances, we find, as did the Trial Examiner, that it is impossible to credit the explanations offered by the three discharged pressers for the differences between their reports and the respondent's records. The Trial Examiner, who had the opportunity to observe the wit- nesses and judge of their credibility, found that the respondent relied in good faith upon the records compiled by Glass, in discharging Dietrich, Beck, and Klassen. In view of the facts that the records relied upon indicate that the discharged employees were dishonest in their work; that there is no showing of bad faith or anti-union motivation in the preparation and keeping of the respondent's rec- ords; that other employees, including Brendle and Moyer, who were also active in the Union, were not discharged; and that the respondent .is not shown to have, opposed or interfered with organization by the Union among its employees, we are of the opinion, as was the Trial Examiner, that the evidence does not sustain the allegations of the 672 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD complaint that the respondent discharged Dietrich, Beck, and Klas- sen because of their membership and activity in the Union. Since the allegations of unfair labor practices are not supported by the evidence, the complaint will be dismissed. 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. George W. Bollman & Company, Adamstown, Pennsylvania, is engaged in commerce, within the meaning of Section 2 (6) of the Act. 2. Wool Hat Workers Local 99, affiliated with the United Hatters, Cap & Millinery Workers International Union, and with the Amer- ican Federation of Labor, is a labor organization, within the meaning ,of Section 2 (5) of the Act. 3. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (1) or (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 com- plaint against the respondent, George W. Bollman & Company, Adamstown, Pennsylvania, be, and it hereby is, dismissed. CHAIRMAN HARRY A. MuLLIs took no part in the consideration of the above Decision and Order.