Banner Slipper Co., Inc.

In the Matter of BANNER SLIPPER CO., INC. and UNITED SHOE WORKERS or AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGAN- IZATIONS and WAYNE SHOE AND SLIPPER WORKERS UNION, INC., PARTY TO THE CONTRACT. Case No. C-1743.-Decided May 6,1941 Jurisdiction : footwear manufacturing industry. Unfair Labor Practices, - In General: responsibility, of employer for activities, in behalf of inside union, by a person who was an official of the town's "trade association." Interference, Restraint, and Coercion. anti-union statements. Company'-Dominated Union: formation, of, to forestall "outside" organization- membership solicitation by representatives -of management on company time and property-support : permitting use of president's office to sign up members; permitting meetings to be held on company time and property and shutting off, the power on the occasion of this meeting : financial support in the form of loans- interference and discrimination constituting acts of domination : cautioning recalcitrant employees that unless they join the "inside" union the plant would shut down ; in contrast to aid given "inside" union at employer's insistance list of "agitators" was drawn up and used as a means of getting rid of those em- ployees who favored the "outside" union and were hostile to "inside? union. Discrimination: discharges for union membership and activity ; refusal to permit employees, to resume work because they were not members in good standing under closed-shop contract with company-dominated union ; charges of, dis- missed as to six employees. Remedial Orders : disestablishment of company-dominated union; abrogation of contract; reinstatement and back pay. , Mr. Geoffrey J. Cunniff, for the Board. Mr. David Ger/tzrdt, of New York City, for .the 'Company. Mr. Julius Crane, of Binghamton, N. Y., and Mr. Leo Goodman, of Washington, D. C., -for the United. - Mr. I. B. Rutherford, of Honesdale, Pa., for Wayne Shoe Union. Mr. Sidney L. Davis, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE -CASE Charges and amended charges having been filed by United Shoe Workers of America, herein called the United, the National Labor' • 31 N. L. R. B., No. 105. 621 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its com- plaint dated August 6, 1940, against Banner Slipper Co., Inc., Hones- dale, 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), (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, ac- companied by notice of hearing, were duly served upon the respondent, the United, and Wayne Shoe and Slipper Workers Union, Inc., which was named in the complaint as "Party to the Contract" mentioned therein, hereinafter referred to as Wayne Shoe Union. Concerning the unfair labor practices the complaint alleged in substance (1) that the respondent-in or about June, July, August and September 1939, and at other times down to the issuance of the complaint, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act in that it suggested and urged them to join and affiliate with Wayne Shoe Union,'threatened them with dismissal if they joined the United and that the respondent's Honesdale plant would be closed if the United organized its employees, disparaged and criticized the United, its purposes and leaders and informed 'certain employees that if the United's organizers came into Honesdale, physical violence would be inflicted upon them, urged and persuaded certain employees to aban- don membership in and activity for the United and in order to frustrate the United's organizational activity, offered certain em- ployees various sums of money to leave the city of Honesdale, caused circulation among the employees of a petition in order to ascertain that they did not desire to belong to the United or any other national labor organization; (2) that during the period from on or about June 26,,1939, down to and including the date of the issuance of the com- plaint the respondent dominated and interfered with the formation and administration of Wayne Shoe Union and contributed financial and other support to it in that during June, July, and August 1939, and thereafter, it caused and permitted certain' of its supervisory em- ployees to aid and assist in the formation and administration thereof; on or about June 26, 1939, caused and permitted, through its agents and officials, a petition on behalf of Wayne Shoe Union to be signed in the main office during working hours; in or about June 1939 caused and permitted one James Arthur to speak to the employees in the Honesdale plant in order to urge and persuade said employees to abandon membership in the United and to join Wayne Shoe Union, I Incorrectly designated in some of the formal papers as Banner Slipper Company. This was corrected by motion made at the hearing. BANNER SLIPPER COMPANY, INC. 623 and about said time stated`to various employees through its officers and agents that membership in Wayne Shoe Union was necessary if the employees wished to continue working for the respondent; in or about July, August, and September 1939, through its officers and agents assisted in collecting dues from its employees to be paid Wayne Shoe Union and permitted use of facilities at the Honesdale plant during working hours for said purpose; during July and August 1939 through its officers and agents aforesaid caused circulation among its employees of a petition setting forth that their only intention was to be members of Wayne Shoe Union; in June, July, August, and September 1939 granted Wayne Shoe Union the privilege of placing notices of meet- ings on bulletin boards but denied a similar privilege to the United, on or about September 21, 1939, entered into a closed-shop contract with Wayne Shoe Union, which contract is void and in violation of the Act; and in numerous other ways did dominate, interfere with, and contribute financial and other support to,Wayne Shoe Union; and (3) that the respondent on various stated dates terminated the employment of and refused to reinstate 18 named employees because of said employees' membership in and activity for the United, and by other acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On August 17, 1940, the respondent filed an answer in which it denied that it had engaged in the alleged unfair labor practices. Wayne Shoe Union also filed an answer denying the material allega- tions of the complaint. After two postponements ordered by the Regional Director, a hearing was held, pursuant to notice, at Honesdale,, Pennsylvania, on September 30 and October 1, 2, 7, 8, 9, and 10, 1940, before William B. Barton, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and Wayne Shoe Union were represented by counsel and the United by its representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing motions were made to amend the complaint to conform to the proof as to the spelling of names. The respondent agreed that such amendments should be made and the motions were granted. The fourth day of the hearing counsel for the Board moved "that the complaint be dismissed in so far as it alleges that one Doris Barnes was dismissed because of her activities in the Union." The motion was granted.2 At the close of the hearing the respondent Moved to dismiss the complaint in 2 Counsel for the Board explained that there was no such person as Doris Barnes and the names was erroneously set forth in the complaint 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its entirety and also moved to dismiss the allegations as to Doris Bishop, Stella Barnes, and Helen Daniels.3 The Trial Examiner reserved ruling on these motions, and in his Intermediate Report, discussed below, granted the motion to dismiss the complaint as to the three employees above named, and denied the notion to dismiss the complaint in its entirety. At the close of the hearing Wayne Shoe Union moved to dismiss the allegations in paragraphs 7 and 9 of the complaint. The Trial Examiner reserved ruling on the motion and in his Intermediate Report denied it. During the course of the hearing, the Trial Examiner sustained objections by counsel for the Board to the introduction in evidence by the respondent of testimony to show that the respondent on various occasions had made loans to certain employees, and receipts for such loans. The respond- ent thereupon made an offer of proof with respect to the foregoing evidence. This ruling is hereby reversed and the receipts offered by the respondent are hereby made a part of the record.' We shall also accept and consider below the offer of proof made by the respondent. During the course of the hearing, the Trial Examiner made rulings on other motions and on other objections to the admis- sion of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. Ex- cept as indicated above, the rulings are hereby affirmed. After the close of the hearing a brief was submitted to, the Trial Examiner by counsel for the respondent. The Trial Examiner thereafter filed his Intermediate Report dated November 29, 1940, copies of which were duly served upon the parties. He found therein that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the Act and recommended that- the respondent cease and desist therefrom and take certain specified affirmative action deemed neces- sary to effectuate the policies of the Act. He further recommended that the complaint be dismissed in so far as it related to the alleged discriminatory discharge of Mildred Hunter, Doris Bishop, Stella Barnes, Helen Daniels, and Vincent Polt. On December 23 and 26, 1940, respectively, Wayne Shoe Union and the respondent filed exceptions to the Intermediate Report. Pursuant to notice duly served upon all the parties, a hearing for the purpose of oral argument was held before the Board' on March 11, 1941, in Washington, D. C. The respondent and Wayne Shoe 3 Counsel for tha respondent also included the name of Doris Barnes in his motion, appar- ently overlooking the previous ruling which dismissed the complaint as to her. 4 The exhibits in question appear in the record of the hearing as "Respondent 's Rejected- Exhibits 2, 3 (a), (b ), and (c ), 4, and 5." BANNER SLIPPER COMPANY, INC. 625 Union appeared by counsel, the United by its representative, and all participated in the oral argument. The Board has considered the exceptions to the Intermediate Report filed by the respondent and Wayne Shoe Union, and the respondent's brief submitted to the Trial Examiner, and, in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a'corporation organized under the laws of the Commonwealth of Pennsylvania and has its principal place of busi- ness at Honesdale, Pennsylvania. At Honesdale it maintains a plant in which it manufactures footwear. The principal materials used at this plant are leather, imitation leather, cotton linings, sewing thread, and rubber heels. The cost of 'materials used at this plant in the year 1939 was in excess of $150,000, and the respondent pur- chased 90 per cent of such materials in States of the United States other than the Commonwealth of Pennsylvania. Since 1936 in excess of 90 per cent of the materials used by the respondent at its Hones- dale plant have been transported' to it from States of the United States other than the Commonwealth of Pennsylvania. On the basis of cost the value of all products of the Honesdale plant during the year 1939 was approximately $600,000. In the manufacture, sale, and distribution of footwear at its Honesdale plant since 1936 the respondent has continuously caused in excess of 90 per cent of the products of said plant to be transported in interstate commerce to various States of the United States other than the Commonwealth of Pennsylvania. H. THE ORGANIZATIONS INVOLVED United Shoe Workers of America, affiliated with the Congress of Industrial Organizations, herein called the C. I. 0., is a labor organization, admitting to membership employees of the respondent's Honesdale plant. Wayne Shoe and Slipper Workers Union, Inc.,b is an unaffiliated labor organization, admitting to membership employees of the re- spondent's Honesdale plant. 6 As hereinafter noted, this labor organization was the successor to the Banner Slipper Union. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Interference, restraint and coercion; the organization of the Wayne Shoe Union Prior to June 1939 there had been no labor organization of the respondent's employees in the Honesdale plant. On or about Mon- day, June 19, Stanley Jarusik, a trimming-machine operator in the respondent's plant, told a number of the other employees that on the following Wednesday evening there would be a meeting of employees at a place known as Clark's Corners about 4 miles from Honesdale. The announced meeting took place' and approximately 12 employees of the respondent attended. Wayne Spetigue, a business agent of the United, spoke to this group of employees at the, meeting,, telling them "that he was organizing the company. and he asked them if they would help . . ." About 300 membership application, cards were distributed among those present, who soon after the meeting obtained the signatures of a number of the employees and turned over, the signed cards to Jarusik. The afternoon of the following day, Thurs- day, June 22, during working hours Julius Lenschen, superintendent of the plant, stopped at the trimming machine where Jarusik was , at work and said, "I heard that you are one of the fellows that was starting a union in the shop." The next day during working hours Lenschen again talked to Jarusik at the machine where the latter worked, Lenschen telling Jarusik that Jarusik had a family to keep and had a job. Lenschen also told Jarusik that he would get a bet- ter job if he changed his ways and that Isador Levy, president of the respondent, had said that "if we joined the C. I. 0., he would close the shop down." On the evening of Friday, June 23, Edgar Bishop and Leslie Allen, two employees in the plant, called at the home of James A. Arthur, a Honesdale businessman and president of the Honesdale Businessmen's and Board of Trade Association, and asked for assist- ance in starting among the respondent's employees an unaffiliated labor organization. Arthur testified that nothing was said on this occasion about keep- ing the C. I. O. out of the plant, but Bishop, who was called as a witness by the respondent, and whose demeanor, according to the Trial Examiner, was adverse to the Board,,testified on cross-examina- tion that he and Allen probably mentioned to Arthur on this occasion the desire of himself and Allen "to keep',the CIO out of the plant." a Our findings above are based on the uncontroverted testimony of Stanley Jarusik. Lenschen did not testify at the hearing. In its brief the respondent submits that Lenschen was no longer in the respondent 's employ. Except for the testimony of Isador Levy, presi- dent of the respondent, that he did not "think" that Lenschen was in Honesdale , there is no showing that the respondent made any effort to locate him nor did the respondent request the Board to issue a subpoena for Lenschen. BANNER SLIPPER COMPANY, INC. 627- On the basis of Bishop's testimony we find, as did the Trial Ex- aminer, that on the evening of June 23, 1939, Bishop, Allen, and Arthur talked together about their desires of keeping the C. I. O. out of the Honesdale plant. Arthur on this occasion gave Bishop and Allen about 200 cards the form of which was in part as foiJows : The Honesdale Industrial Council, composed of the citizens of Honesdale, are interested in the well being, of the community and offer their assistance in securing a position, for you with the understanding that you will live up to the rules and regula- tions governing same, and in case of a grievance arising between employer and employee that cannot be satisfactorily adjusted, are you willing to submit same to an impartial board of arbitrators? Signed -------- ---------------------- Yes ------ No ------ Arthur 'told Allen and Bishop to -see how -many employees would sign the cards "and ,whoever signed those cards we would know was in favor of the local union."' The next morning, June 24, at about 7: 45 Arthur saw Bishop• in front of the former's place of business in Honesdale. Arthur mean- while had typed a petition and gave Bishop some copies of it. This petition read as follows : We, the undersigned, being employees of Banner Slipper Co., Inc., of Honesdale, Pa., in consideration of our mutual promises and agreeffients, and on our own choosing, hereby agree to join and to establish the Banner Slipper Union for the benefit and protection of the employees of said Banner Slipper Co., Inc., and we hereby authorize and request solely the duly constituted officers or committee of the said Banner Slipper Union to repre- sent each of its individually and collectively for the purpose of bargaining in regards to n ages, hours and working conditions. We, and each of us, do further agree that in the event disputes and differences arise between the officers or committee of Banner Slipper Union and the Banner Slipper Co. Inc., that then and in that event said disputes or differences shall be presented to and decided upon by the Honesdale Industrial Council, and we and each of us do agree to be bound finally by the decisions and find- ings of the said Honesdale Industrial Council, said Honesdale Industrial Council to consist,of a committee appointed by the Chamber of Commerce; a committee appointedby the Business Alen's Association, a representative from Banner Slipper Co. Inc., and a,representative from Banner Slipper Union. 'The evidence indicates that the employees frequently referred to the Banner Slipper Union and the Wayne Shoe Union as the local. 441843-42-vol 31--41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This agreement is executed by us and each of us for the sole purpose of continuing the harmonious relationship that has thus far existed between employer and employees. The same morning, Bishop, Allen, and George Seitz , an employee in the shipping room, occupied the office of 1sador Levy, president of the respondent, who was at that time absent from the plant. They had with them in the office the above cards and the petition. During the morning they called from their work the employees of each de- partment who were in the factory , asking them to come to Levy's office. These employees were there asked by Bishop , Allen, and Seitz to sign one of the cards and the petition 'mentioned above. Most of the morning was spent obtaining these signatures . Julius Lenschen was present in the factory as the employees left each department to go to Levy's office , but he raised no objection to what was taking place. Isador Levy who, as mentioned above, was absent from Honesdale when his office was thus used on this occasion , contended at the hear- ing that he had never given any employee permission to make such use of his office. However, Harold Levy, brother of the respondent 's presi- dent, and at that time in- charge of -the shipping room and of the respondent's offices, was in the factory on the morning of June 24. Harold Levy came into his brother's office while some of the em- ployees were there on the occasion described above. Levy at that time inquired of Bishop , Allen, and Seitz why they were in the office and they replied that they "had private business to attend to." They asked Levy to leave and Seitz "playfully" led him out of the office. Levy contended at the hearing that he did not know • on Saturday, June 24, what was taking place in Isador Levy's office . The evidence shows, however, that the copies of the petition and the cards were on a table when Levy entered the office. The table was being used at the time as a place where the employees were signing the petition and the cards. Bishop and Seitz were seated at the table and Allen was near it when Harold Levy inquired as to why Bishop, Allen, and Seitz were in the office . Levy left the office without protest when requested to do so by Seitz, notwithstanding he fact that he was Seitz' supervisor in the shipping room and Seitz was absent from,his work that morning for about 2 hours . Levy never questioned Seitz regarding the absence of the latter from his work . Under all the circumstances we do not credit Harold Levy's denial of knowledge of the events of the morning of June 24 . We find, as. dia the Trial Ex- aminer, that Harold Levy knew at the time that Bishop, Seitz, and Allen were using the office as a place for employees to sign the cards and petition mentioned above. On Monday, June 26, several -employees, including Bishop, asked Arthur to be present at the plant that afternoon to assist wih the BANNER SLIPPER COMPANY, INC. 629 'formation of an unaffiliated union. Between 4 and 4 :30 p. m. that day he appeared' at the plant and presided over a,meeting of employees held on -the second floor. Arthur advised the employees to elect tem- -porary officers as the first step in the formation of a labor organization. Testimony by several Board witnesses indicated that Arthur also said in substance at this meeting that the Honesdale businessmen had been preparing for about 3 years for the possibility of a union com- ing into Honesdale and that they were ready for it; that in order to keep the respondent's factory in Honesdale it would be best to have a local union. Arthur denied that he made any such statements. How-, ever, other witnesses besides Arthur who testified for the respondent about this meeting, although failing to include in their summaries of Arthur's remarks any statements of the above nature, did not specifically deny that he made these remarks. We find, as did the Trial Examiner, that Arthur made in substance the statements related by the witnesses for the Board as stated" above. Before, this meeting adjourned tem- porary officers were nominated and elected." Although the record does not disclose whether the employees formally adopted at this meeting a name for the unaffiliated union, several witnesses for-the Board testified, and we find, that the intended name of the organization was Banner Slipper Unions Arthur and witnesses for the respondent denied that anybody con- nected with the respondent's management gave him permission to hold this meeting. However, Superintendent Julius Lenschen was present on the second floor when the approximately 200 employees assembled for the meeting and he was present during part of the meet- ing. At no time did he object to this proceeding on company time and property. The power in the plant had been shut off just before the group assembled for the meeting, notwithstanding the fact that the employees generally worked until 5 p. m. The respondent's witnesses denied any knowledge regarding who shut off the power on this oc- casion. Edgar Bishop, mentioned above, testified as follows regarding the power being shut off : Q. (By Dir. Cunniff.) Isn't it a fact that Arthur come [sic] to the plant while many of the employees were working? A. There were probably some working, yes. Q. And don't you know, as a matter of fact,, that the power was shut off ? A. Sure, it was off for awhile. Q. Who shut it off ? The temporary officers elected were Charles Burket-chairman ; Edgai Bishop-vice chairman ; Ralph Irwin-treasurer , and George Seitz-secretary ti Tins was the name of,the union as set forth in the petition prepared by Arthur and referred to above 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I don't know. Q. Who had the right, if you know, to shut off the power? A. That was when we were down there working. Q. Well, who has the right during working hours, if you know, to shut off the power? A. No one, I should think, unless it was the boss. Q. That is, to your best knowledge, isn't it? A., That is my knowledge, yes. The respondent did not introduce evidence to contradict this testi- mony by Bishop. On the basis of Bishop's testimony and the entire record we find, as did the Trial Examiner, that the power in the plant on the occasion of the above meeting was shut off with the consent of the management.1° Thus the employees had reason to believe that Arthur's statements, made on company time and prop- erty, reflected the desires of the respondent. We find that the respondent is- responsible for Arthur's statements made at this meet- ing, as described above. Isador Levy testified that after -the above meeting he instructed the foremen that he "didn't want anything like this to happen in our factory." He admitted, however, that he never communicated with Arthur about the matter. In view of all the evidence it appears extremely doubtful that Levy instructed the foremen as he testified. In any event,it is clear that such instruction was never communicated to the employees, and we so find, as -did the Trial Examiner. The temporary officers who had been elected called a meeting for the evening of June 29 to be held at the Alert Fire Hall in Honesdale. The day before the meeting, Seitz, mentioned above, placed on the factory front door a sign announcing the meeting and that it would include refreshments.'1 This sign was on the door 2 full days before the meeting. About 100 employees attended the meeting and perma- nent officers 12 and an executive board were elected. During the elec- tion of officers Joe Van Driesen, a hand ]aster for the respondent, objected to the election of Edgar Bishop as permanent vice chair- man, telling the group "that Bishop would go back and tell the bosses what went on at the meetings and that he should not be there or be on the board." Those present did not elect Bishop a permanent officer or a member of the executive board and voted to terminate 10 The respondent excepted to the Trial Examiner 's finding in the Intermediate Report that the employees worked until 5 p. in. on June 26 In its brief and at the oral argument the respondent contended that the employees had already ceased work when Arthur arrived at the plant. We are of the opinion, however , that the above testimony amply supports the finding that on that date the employees would have worked until 5 p in 11 Seitz testified that he wrote the sign and that Bishop or Burket might have helped him place it on the door. 12 The permanent officers elected were : Charles Burket-chairman ; Joe Van Driesen- vice chairman ; George Seitz-secretary ; and Ralph Irwin-treasui er. BANNER SLIPPER COMPANY, INC. 631 his membership. He appears 'to have taken no further 'part in the Banner Slipper Union or Wayne Shoe Union. It is obvious that Van Driesen's argument against Bishop's holding an office in the local union was in effect that he would be representing the management at the meetings. In view of the prominent part played' by Bishop in this labor organization prior to June 29, it, is important , to determine whether he in fact acted for or represented the management as argued by Van Driesen. The respondent contends that Bishop had no such authority. Bishop described his work as that of assembling uppers, insoles, and counters, which he then placed on a rack for other employees. He testified that in June 1939 he had two helpers, Kelch and Firnstone. He denied in his testimony' that he had any authority over them, but contended that they instructed him what to do as often as he instructed them. On cross-examination, however, George ,Seith,"' mentioned above, who was called by the respondent as a witness and whose demeanor, according to the Trial Examiner, was hostile to the Board, admitted that Bishops work took him in and out of the office. He also admitted that when the machine' broke down or when supplies , were needed for the operation it was, Bishop who `.`took care of it" and that neither Kelch nor Firnstone had any such duties. It is significant that although the employees voted their disapproval of Bishop's having any connection with this labor organization after the suggestion that he "would go back and tell the bosses," no such question was ever raised as to Kelch and Fire- stone. This incident indicates, and we find, as did the Trial Examiner, that the employees identified Bishop with the management. Under the circumstances, the employees did not have the complete and unhampered, freedom of choice which the Act contemplates 14 ' At ' the June 29 meeting several members criticized the plan for arbitration set forth in the petition signed on or, about June 24, and it was informally decided to abandon the arbitration features of the plan. At the following meeting of the executive board held in July 1939, the name Banner Slipper Union was changed to Wayne Shoe and Slipper Workers Union. On August 2 and 3, 1939, Van Driesen; chairman of the executive board of-the Wayne Shoe Union, spent about a day and a half during working hours circulating among the employees in the plant a petition which recited that the signing employees desired "to form an Inde- pendent Union" and disapproved "of any Union affiliated either with 18 Seitz played an important part in the formation of the Banner Slipper Union and its successor, the Wayne Shoe Union , as the discussion discloses. He resigned, however, from his office and membership in the Wayne Shoe Union after several members objected to his membership and office because he was classified as an office worker. 14 See International Association of Machinists v. N. L. R. B., decided by the Supreme Court of the United States November 12, 1940. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the American Federation of Labor or the, C. I. 0." Thereafter on August 7 and 8, 1939, Ida Ludwig and Helen 'Gay, employees and members of the executive board of the Wayne Shoe Union, and Van Driesen circulated during working hours another petition which des- ignated as collective bargaining representatives of the employees 13 members of the executive board of the Wayne Shoe Union.l5 Van Driesen testified that prior to the circulation of the petition on August 2 and 3 Isadore Levy told him that "he (Levy), wanted to get a vote of confidence of how many we could muster up in the local union." Van Driesen further testified that he then had the above petition prepared, "showed the heading to Levy and told him that I should go through "the factory and have it signed up so to give him what he asked for, the vote of confidence, which I did." Levy denied Van Driesen's testimony as follows : Q. (By Mr Gerhardt.) Did he (Van Driesen) ever come to you for permission to circulate any petition? A. Never did. This categorical denial by Levy clearly does not extend to all the testimony of Van Driesen on the subject as stated above. More- over, undisputed testimony by Van Driesen that he circulated this petition without interruption during working hours, going into all the departments of the plant with it over a period of a day and a half, is compatible with. his other testimony regarding it as related above, rather than with the denial by Levy. Under all the circum- stances, we agree with the Trial Examiner who credited Van Driesen's testimony regarding the petition circulated on August 2 and 3 as stated above. We find that Van Driesen circulated the petition upon the instigation and with the permission of the respondent. The circumstances under which the other petition was circulated on August 7 and 8 are detailed in the uncontroverted testimony of Helen Gay, who, after stating that she helped during working hours present this petition for signature to all the employees in the plant, testified as follows : - Q. (By Mr. Cunniff.) Where was Hyzen (the department superintendent or foreman) 16 at the time you took this paper around? A. He was working. _ Q. Did he say anything to you? A. No, he didn't. 11 Since as noted above the employees had decided to abandon the arbitration plan set forth in the petition of June 24 , the petition of August 7 and 8 was circulated so that the respondent might have tangible evidence that the employees desired a local union. As hereinafter noted we have found that this petition was circulated on company time and property with the consent of the management. 10 The words inclosed in parentheses have been supplied. BANNER SLIPPER COMPANY, INC.' 633 Q. Did he ask you where you were? - A. No. Q. Did he say anything to you at all when you came back? A. No.' - We find that the above-mentioned petition was circulated on company time and property with the acquiescence of the management. . In or about September 1939 an attorney representing the respond- ent and another representing the members of the executive board of the Wayne Shoe Union drafted a contract between the respondent and the executive board members as' to wages, hours, and working conditions of the employees. On September 20, 1939,' according to the testimony of Helen Jarusik, Isador Levy went into the packing department, and stated to the girls employed in that department "that he has got an inside union there and he is going to sign with it; that he wants us girls to sign up one hundred per cent or else he is going to padlock the doors." Although Levy denied making this statement, the Trial Examiner found as a fact the foregoing testimony of Helen Jarusik. We find that Isador Levy made the statement attributed to him above. The next day the respondent signed a closed-shop contract with the 13 members of the executive board 17 as representatives of the employees of the respondent. Van-Driesen testified that during the period of organization of the Wayne Shoe Union, -the respondent's president, Isador Levy, was lending financial assistance to aid in carrying on these activities. The 'substance of his testimony regarding such financial assistance was as follows : that Ralph J. • Irwin, an employee in the finishing department, paid for the refreshments served at the above-meeting on June 29, 1939, from a loan of $50.00 made by Isador Levy; that Irwin'reported to the executive board of the Wayne Shoe Union, soon after June 29, the amount spent for such refreshments and that he had obtained a $50.00 loan; that thereafter in December 1939 Van Driesen asked Irwin if Irwin could not obtain another $50.00 to en- able the Wayne Shoe Union to pay for a charter of incorporation;' that Irwin then informed Van Driesen that the source of the pre- vious $50.00 was Levy; that Van Driesen then borrowed from Levy $50.00 which Van Driesen used to obtain said charter; that Levy said, at the time, "I can't let it be known that I am giving you this for the charter, but I can give it to you as a personal loan" ; that .Van Driesen erranged to repay part of said loan by obtaining petmission from Harold Levy to set up a table in the plant on pay day, December 29, 1939, at which time the employees were'to pass the table and pay Van 11, These . 13 executive board members are the same as those named in the petition circu- lated on August 7 and 8, 1939.• 1 - 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drie'sen 25 cents each; 18 that Van Driesen explained this plan to Foremen Sam La Point, Harold Myers, and Edward Hyzen; 19 that he "made arrangements with Myers to take a table back in the corner so that when he paid the employees they could pass me sitting at the table there"; that the plan was, carried out, and a payment was made on the loan from the, funds collected; that early in August 1939 Isa-, dore Levy advanced Van Driesen $10.00 to cover time Van Driesen lost from his work iri circulating the petitions mentioned above; that a few days later Van Driesen offered to arrange to repay it, but Levy said, "Well, we will forget about it"; that up to, December 1939 Levy gave Van Driesen on different occasions, to repay Van Driesen for time, spent on behalf of the Wayne Shoe Union, sums which totaled another $35.00; that neither Van Driesen nor Levy had ever men- tioned repayment of said sums and said sums have not been repaid. Levy admitted that he made a loan of $50.00 to Irwin early in July and another loan in the same amount to Van Driesen in December, but denied that he knew for what purpose either loan was to be used. He denied advancing the other sums of money to Van Driesen as men- tioned above. Irwin also denied that he told Levy why he (Irwin) wanted the loan obtained from Levy in July. He testified during direct examination in response to a question by the Trial Examiner regarding his conversation with Van Driesen in December, "Well, he came up and wanted $50. for the charter. I said I could not give him $50, that I did not have it. So that is all that was said at that time." In addition, Irwin in response to •a question by the respond- ent's counsel on direct examination as to whether he ever told Van Driesen that Levy loaned Irwin the money for the refreshments, an- swered, "No, not directly." On cross-examination by counsel for the Board, Irwin admitted that by the words "not directly" he meant that he did not tell Van Driesen until December that the above loan was from Levy.20 La Point, Hyzen, and Myers were all called by_the respondent to testify. La Point and Hyzen did not deny the-collection of 25 cents from the employees on December 29, 1939, under the circumstances detailed by Van Driesen in his testimony as stated above. Myers, on cross-examination, testified regarding the incident as follows : Q. (By Mr. Cunniff.) , Well, now, on December 29th, can you remember if that was the time Van Driesen was collecting money from the local; didn't you pay the men and tell them to go over to the table and get their money; just that once? 18 It appears that assessing the members of the Wayne Shoe Union and collecting the sum assessed from them while they were at the factory was a rather common practice. 19 Erroneously referred to at one point in'the record as J. Heisen. 20 Irwin indicated that he paid $32.90 of his own money for refreshments at the time, but repaid himself through the loan from Levy which Irwin repaid. It appears that the Wayne Shoe Union reimbursed Irwin some time after the loan. BANNER SLIPPER COMPANY, INC. 635 A. I don't remember that, I am sure. Q. You wouldn't say, Mr.;Myers, that you didn't tell them to go over there and get their money? A. I wouldn't say I did or did not, because I don't remember. The Trial Examiner was impressed with Van Drieseil as a witness and noted that he appeared honest and determined to relate the truth. Under all the circumstances, we agree with the Trial Examiner who credited truthfulness to Van Driesen's testimony and we find that the respondent gave financial assistance to the Wayne Shoe Union 21 The aid and assistance rendered by the respondent to the Wayne Shoe Union is further demonstrated by the treatment the respondent accorded those employees who opposed this labor organization. Van Driesen testified that at various times between July 1939 and February 1940, in response to inquiries by Isador Levy, he submitted to Levy the names of employees whom he "considered agitators." 22 Van Driesen also testified that Levy stated to him on one of these occasions that these employees could not be discharged for union activities and Van Driesen replied that Levy. would "have to ... get some other defect in their work, or something like that to make grounds" for discharging them. Levy denied this testimony of Van.Driesen. Because of the favorable impression made by Van Driesen as a witness, the Trial Examiner credited truthfulness to his testimony regarding the submission of a list of "agitators" to Levy as recited above. We agree with the Trial Examiner, and we find that the list of "agitators" was drawn up at the insistence of the respondent and, as hereinafter noted, used as a means for getting rid of those employees' who favored the United and were hostile to the Wayne Shoe Union. B. Conclusions We have found above that soon after the United had attempted to organize its employees, the respondent, through its agent, Bishop, took steps to forestall such organization. Bishop did not hesitate to use the office of the president of the respondent to sign up members for an inside organization, nor was this discouraged by Harold Levy, who after entering his brother's office and inquiring as to what was 21 In arriving at the above conclusion we have not overlooked the respondent 's contention at the oral argument that it was not unusual for the respondent to make loans to em- ployees As noted earlier we have reversed the Trial Examiner ' s ruling with respect to certain receipts evidencing loans made by the respondent to its employees . We have re- ceived the receipts in evidence and have considered them along with the offer of proof that the respondent had made loans to employees other than Irwin and Van Driesen, which we accept as true. While an employer may make loans to employees under other circum- stances , it is a violation of the Act for an employer to make loans for the purpose of rendering financial aid to a labor organization. 0 Van Driesen was chairman of the executive board of the Wayne Shoe Union from July 5, 1939 , until on or about February 1, 1940. It appears to have been in this capacity that he conferred with Levy. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going on, permitted himself to be led "playfully" out of the office. When the employees apparently rebelled at the plan being foisted upon them by the respondent and expelled Bishop from their member- ship, the respondent took further steps to regain their "confidence," and further 'petitions were, circulated among the employees at its behest. To insure the success.of'the inside union, the respondent's president and supervisory employees cautioned recalcitrant employees that they would either join the inside union or the plant would shut down. Financial assistance was rendered by the respondent to the Wayne Shoe Union in the form of loans which were repaid! by collect- ing small sums from the employees pursuant to a plan acquiesced in and consented to by supervisory employees. In contrast the treatment accorded the, United deserves consideration. When the admonitions -to those opposing the Wayne Shoe Union did not produce the desired results, the respondent had a list of "agitators" drawn up, and those favoring the United were subsequently discharged on various pretexts.23 A labor organization formed and operating under such circum- stances could not operate independently of the respondent, and is incapable of functioning as a bona fide bargaining agency for the employees.24 We find that the respondent dominated and interfered with the formation and administration of the Wayne Shoe Union and contributed financial and other support thereto, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that the agreement entered into between the respondent and the executive board members of the Wayne Shoe Union and the con- tractual relationship existing thereunder have been and are a means of utilizing an employer-dominated organization to frustrate the exercise by the respondent's employees of the rights guaranteed in Section 7 of the Act.' We also find that by the statements and other acts of Arthur, Lenschen, and Isador Levy, on the occasions and under the circumstances heretofore discussed, the respondent has interfered ,with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discrimination as to hire and tenure of employment 1. The discrimination against Karl Niekrewicz, Ruth Daniels, and Helen Jarusik The complaint alleges that on or about October 4, 1939, the re- spondent terminated the employment of and refused to reinstate Karl 23 See Section C below. 24 See N. L. R. B. v. Link-Belt Co., decided January 6, 1941 (U. S. Sup Ct.) Titan Metal Mfg. Co. v. N. L. R. B, 106 F. (2d) (C. C. A. 3), cert. denied 308 U. S. 615. -BANNER SLIPPER COMPANY, INC. 637 Niekrewicz, Ruth Daniels; and Helen Jarusik,'5 "because of said employees membership in and activity on behalf of the Union." Karl Niekrewicz, an employee in the heeling department, joined the United in June 1939 and was active in signing up members for that labor organization during its organizational drive at that time. He was one of those listed among the "agitators" early in August 1939 when Van Driesen reported to Isador Levy the names of those employees who refused to sign the petition circulated about that date as discussed above., - - On September 29,1939, Harold Levy called Niekrewicz during work- ing hours into the leather room of the factory away from the other employees. Levy told Niekrewicz that "the CIO would never get into the factory because they have spent enough money to form a local union" and that if Niekrewicz was wise he would mind his own business and forget about the CIO while he still had a job. Although Levy denied making this statement, the Trial Examiner found as a fact the foregoing as testified by Niekrewicz. We find that Levy made the 'statement attributed to him above. The morning of October 4, 1939, Pete Reifler, an employee in another department, went into the packing room where Ruth Daniels was working and pinched Daniels' arm. As Reifler walked away, Niek- rewicz,_ who was Daniels' "boy friend," and Reifler exchanged words over the incident. Reifler said to Niekrewicz, "Do you want to make something out of it?" Niekrewicz replied, "Sure," and Reifler "swung?' at Niekrewicz. The latter pushed Reifler between some racks. After this incident, which took place shortly after 11 o'clock in the morn- ing, these employees continued to work until the lunch period at noon. A few minutes before 1 o'clock, at which time the employees normally resumed work after their lunch period, Niekrewicz was about to enter the factory. Reifler started toward Niekrewicz in the presence of about 150 other employees who had congregated. Ruth Daniels, who was present, said to Reifler, "You are not going to fight here, if you want to fight you will have to fight alone, not with your gang around." Helen Jarusik, 'a sister of Niekrewicz, also was present and "tried to separate them." This incident ended without any blows being struck and the employees entered the factory to resume work. After Niek- rewicz had entered the- factory he met Superintendent Geiskopf, who told Niekrewicz that since the latter "started the CIO" he was "just trouble in the factory" 26 The employees apparently worked until about 1: 30 p.m. The power was shut off and Van Driesen, who was 2" This paragraph of the complaint also named Doris Bishop , Doris Barnes, Stell Barnes, and Helen Daniels. The allegations as to Doris Barnes have been dismissed supra. Those as to Mildred Hunter, Doris Bishop, Stella Barnes, and Helen Daniels are dismissed infra. 2 Our findings above are based on the uncontroverted testimony of Niekrewicz . Geiskopf did not testify at the hearing. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then chairman of the executive board of the Wayne Shoe Union, gave instructions to do no more work until the participants in the 'fight were discharged.27 Meanwhile a member of the executive board of the Wayne Shoe Union had suggested to Van Driesen that it was a good time to get rid of some of the "agitators:" Isador Levy was absent from the factory when these events took place. Van Driesen telephoned him as to what had happened and suggested that "he had better come down here and see what he could do." A few minutes later the executive board met in Isador Levy's office with him and Harold Levy present. , They discussed the fact "that it was the best time of getting rid of these agitators." 23 Harold Levy summoned Niekrewicz, Reifler, Ruth Daniels, and Helen Jarusik to the office. Isador Levy asked these employees to state what had taken place. After they had done'so members of the executive board indicated that the employees who had participated in the fight should "be fired." Levy then said, "I guess that is the only way, I will have to fire you," and the employment of the e bove four individuals was terminated 29 After the above events, according to Niekrewicz's testimony, Harold Levy said to Reifler in Niekrewicz's presence, "You don't have any- thing to worry ,about." 30 Levy denied having made this statement. The undisputed evidence shows, however, that Reifler early in 1940 resumed work for the respondent at the same position held by him up to October 4, 1939.31 There was no evidence that the respondent had ever offered to reinstate Niekrewicz, however, and the respondent made no contention at the hearing that it had ever been willing to rehire him. Under the circumstances we find, as did the Trial Ex- aminer, that Harold Levy made the foregoing statement attributed to him by Niekrewicz. Helen Jarusik, whose employment was terminated on October 4, 1939, as indicated above, joined the United in June 1939 and was active at that time in soliciting members for the United. 27 In its brief and at the oral argument , the respondent contended that the power was not turned on and off after the lunch recess , but that it ii as not turned on "until those involved in the fight episode had been discharged which was about 2 p m." The testimony on this point is conflicting We agree with the Trial Examiner who found as a fact that the employees were working for a while after the noon recess , and we find as stated above. 18 See the discussion above regarding the conversation between Van Driesen and Isador Levy as to finding grounds for discharging the "agitators." 29 Although Levy testified that the above discharges resulted from his "own decision," we agree with the Trial Examiner who found as a fact that the employees were discharged at the request of the executive board of the respondent-dominated Wayne Shoe Union In any event whether the discharges were the result of Levy's own decision or compliance with the request of a respondent -dominated union, we find , as hereinafter noted, the true basis for the discharges to be the activities of such employees on behalf of the United 10 Niekrewicz and Reifler apologized to one another after their altercation . Levy appears to have made this statement shortly after the exchange of apologies. 11 There is no evidence that Reifler ever joined the United or in any other way assisted it. BANNER SLIPPER COMPANY, INC. 639 On the afternoon of June 23; 1939, Frances La Truiar, forelady of the packing department, said to the girls employed in that depart- ment, "It is'up to you if you want to work you can, and if you want to sign with the CIO you can because the company is going to padlock the door, Mr. Levy said so." La Truiar then accused Jarusik of being responsible for the organizational drive of the United and asked Jarusik to go with her to the office of Geiskopf, plant superintendent. In Geiskopf's office Geiskopf told Jarusik that she was to blame for the CIO coming into Honesdale and that "Mr. Levy, would sooner move the plant to New York instead of breaking in us damn farm- ers."'32 Jarusik's name was among those discussed in August 1936 as "agitators" by Van Driesen and Isador Levy. Thereafter, on or about October 2, 1939, according to the testimony of Helen Jarusik; Isador Levy spoke to Jarusik in the factory at the table where she worked, telling her,,"You have no more respect for.me than a God- damn louse bringing the CIO into the factory." Although Levy denied making this statement, the Trial Examiner found as a fact the foregoing testimony of Helen Jarusik. We find that Levy made the statement attributed to him above. The discharge of Jarusik took place 2 days later as described above. Ruth Daniels, whose employment also was terminated on'October 4, 1939, as indicated above, ,joined the United in June 1939. She was one of those mentioned as "agitators" in the discussion between Van Driesen and Isador Levy early in August 1939. After her discharge on October 4,1939, she was sitting in an automobile with Helen Daniels and Mildred Hunter. According to the testimony of Ruth Daniels, Harold Levy approached the automobile and entered into conversa- tion with her. She asked Levy why she was discharged and he re- plied, "You know why you were fired. Helen Jarusik and Stanley Jarusik are working with the CIO, Karl is Helen's brother, and you are going with Karl." Mildred Hunter corroborated this testimony. David Potter, Sr.,'3called as a witness by' the Board, testified that about 5 o'clock in the afternoon of October 4, 1939, as Potter was leaving the factory to go home he saw Harold Levy standing at an automobile in which Ruth Daniels and others he did not recognize were seated. Harold Levy denied having had this conversation. 32 The above statement of La Trular and Geiskopf are based on the uncontroverted testi- mony of Helen Jarusik La Trular and Geiskopf were no longer in respondent's employ, and neither of them ,testified at the hearing. Although in its brief and at the oral argu- ment, respondent contended that the whereabouts of La Truiar and Geiskopf were unknown, there was-no showing that the respondent made any effort to locate either La Truiar Or Geiskopf, nor was any request made of the Board for the issuance of a subpoena requiring their presence at the hearing. It is to be noted that Honesdale is a small town with a population of apl,i oximately 5,000 persons Since the contrary has not been shown, we nnist assume that the respondents failure to make any 'efforts to locate either La Truiar or Geiskopf was due to its belief that their testimony would be adverse to it. 11 This witness is the father of David Potter who is named' in the complaint. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner was impressed, however, with the above testimony of Daniels, Hunter, and Potter, and we agree with the Trial Examiner and find that Harold Levy on this occasion made the statement to Ruth Daniels as detailed above. The respondent took exception to the finding of the Trial Examiner that Niekrewicz, Ruth Daniels, and Helen Jarusik were discrimina- torily discharged, and contended at the oral argument that they were discharged because they disrupted production. In the light of all the circumstances surrounding the discharges, we do not find the re- spondent's reason `convincing. We have found above that work was resumed after the lunch period and ceased only when the power was subsequently, tturned. off, and Van Driesen, chairman of the executive board of the respondent-dominated Wayne Shoe Union, instructed the other employees to do no more work until the employees in ques- tion were,discharged. We have also considered that Niekrewicz, Ruth Daniels, and Helen Jarusik were on the list of "agitators," their ac tivities on behalf of the United, and the hostile attitude of the re- ,,spondent towards the United as evidenced by the above anti-union statements of supervisory employees, including the president of the respondent. We find - that the respondent discharged Karl Niekrewicz, Ruth Daniels, and Helen Jariisik because of their activities on behalf of and membership in the United and not because of their participation in the "fight incident" which we find the respondent used as a pretext for the discharges. We further find that the respondent by dis- charging -Karl Niekrewicz, Ruth Daniels, and Helen Jarusik, on October 4, 1939, discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the United, encour- aging membership in the Wayne Shoe Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The cases of discrimination on or about December 4, 1939 The complaint alleges that on or about December 4, 1939, the re- spondent terminated the employment of and refused to reinstate Roland Kline, Ellery Potter, Robert Polt, David Potter, Jr.,,Winifred Potter,34 and Loren Mills because of said employees' membership and activity on behalf of the United. The respondent contends that these employees were discharged because, in violation of instructions by their foremen, they absented themselves from work and went deer hunting on December 1, 1939, the first, day of the Pennsylvania deer season. 34 This employee was originally named in the complaint as Peter Potter, but the evidence disclosed that his real name is Winifred Potter. During the hearing the, complaint was amended accordingly. BANNER SLIPPER COMPANY, INC. 641, David Potter, Jr.,35 Ellery Potter, and Mills worked in the finishing department under Foreman Louis La Point. Mills had worked for the respondent over 4 years, David Potter, Jr., over 3 years, and Ellery Potter over 1 year. All three joined the United in June 1939 and David Potter, Jr., was active at that time in obtaining members for the United. All three were mentioned as "agitators" in the dis- cussion held between Isador Levy and Van Driesen early in August 1939 as discussed above. These three employees absented themselves from work and went deer hunting on December 1, 1939, without ob- taining the permission of the respondent. 'They testified that they received no instructions from their foreman, La Point, warning them not to go hunting. La Point denied this and testified that he gave such instructions to all three on November 30. He testified that they were the only employees of approximately 60 in his department to whom he imparted such instructions inasmuch as they were the only three employees who had announced that they were going hunting. Isador Levy testified that before December 1 he had called to his office Gieskopf and Foremen Hyzen and Myers, and had told them to inform the employees in their departments that the respondent-could "not let them take off Friday." The Trial Examiner was impressed by the fact that Levy in this testimony did not mention La Point as one of those foremen called to his office.36 Under all the circumstances; we agree with the Trial Examiner, and we find that La Point did not tell David Potter, Jr., Ellery Potter, and Mills that they should refrain from going hunting. Wini f 'red Potter had worked about 7 months for the respondent as a sole layer and was under the direct supervision of Geiskopf, the plant superintendent. He joined the United in June 1939 and early in August was mentioned in the conversation between Levy and Van Driesen as one of the "agitators." Potter testified that he told another employee in Geiskopf's presence prior to December 1 that he' was going hunting and that Geiskopf did not instruct him to the contrary. We find, as did the Trial Examiner, that Winifred Potter's testimony is true. , Boland Kline and Robert Polt worked in the lasting department under Foreman Harold Myers. Kline had worked for the respondent about 3 years mid Polt about 21/2 years prior to the termination of their employment in December 1939. Kline joined the United in September and Polt in June 1939. These two employees were among those mentioned as "agitators" in the discussion between Levy and 45 The testimony shows that the David Potter mentioned in the complaint is David Potter, Ji. 36 Levy testified that he spoke to La Point about the matter at a later time , but the time he mentioned vas Friday . That would have been December 1 . The employees had gone hunting, honnever, and had not reported for wwoik on that morning. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Van Driesen early in August 1939 as described above.37 Kline ad- mitted that on November 30 Myers warned him about going hunting, but Polt denied that Myers ever mentioned the matter to him. We are of the opinion and find, as did the Trial Examiner, that Myers told both of these employees prior to December 1 not to go hunting. On December 4, 1939, after the above events, Harold Levy called to one of the company offices the members of the executive board 38 of theWayne Shoe Union. Levy asked the members of the executive board" "what we thought about the way the boys did, tie the shop up after they were forbidden to go hunting, the shop was working full time and some departments were working overtime." Following some discussion by the members of the board,3° but without any vote being taken, Levy and Geiskopf informed the above six employees that they were discharged. - There was testimony that Paul Marshal, an employee in the lasting department went hunting on December 1, 1939, without permission and that he was not discharged. As the respondent offered no evidence to refute this testimony we find it to be true. The evidence also showed that from 12 to 18 employes in the sole cutting room went hunting on the above date and that the respondent did not discharge any of them. Isador Levy testified that on November 30 he discovered "that that particular department . . . had enough surplus and it was not necessary for them to come in" and that he told Geiskopf he could "give them-permission to take off." On Friday morning, De- cember 1, Harold Levy spoke to Van Driesen regarding the absence of so many employees from the plant.40 Van Driesen then made a tour of the plant and found that from 12 to 18 employees were absent from the sole cutting room. Van Driesen called this fact to Harold, Levy's attention, the latter having been unaware until then of these absences from that department. Although Levy a little while later told Van Driesen that he had learned from Geiskopf that the em- ployees of the sole cutting room had received permission to go hunt- ing, it appears probable that in view of Harold Levy's position in the plant he would have already known about such permission had it in fact previously been given to so large a number of employees. In support of such conclusion it is significant that the respondent called neither Geiskopf 41 nor the employees of the sole cutting 42 room to 37 Although Kline did not join the United until September 1939 he was one of those men who did not sign the petition'signed by most of the employees on or about June 24, 1939. 11 It appears that all members of the executive board did not attend this meeting R° Some members of the executive board expressed the view that the employees should be d,scharged, but others disagreed. 40 The management discussed various matters with Van Driesen from time to time as chairman of the executive board of the Wayne Shoe Union. 41 See footnote 32, supra 42 Only one employee from that department testified that he had been given permission to gc hunting. nail the respondent given such permission to all the absent employees it appears likely that the respondent would have offered their testimony to that effect. BANNER SLIPPER COMPANY, INC. 643 testify that permission to go hunting had in fact been given. Even if the respondent, however, gave permission to the above employees to go hunting on December 1, as it contended, such action would indi- cate that the respondent itself had not regarded absence from work on that date as so serious a matter as it contended at the hearing. The respondent also contended that its main concern as to produc- tion on December 1 was on the so-called "McKay side" as distinguished from the "Compos side" of the factory. It contended that produc- tion was lagging on the McKay side. The contention of the respond- ent's witnesses was that the six employees were discharged because their absence to go hunting had interfered with production on the McKay side. It is clear, however, from Harold Levy's testimony on cross-examination by counsel for the Board, that such a consid- eration could not have been the basis for discharging all six of these employees. Levy testified as follows : Q. (By Mr. Cunniff.) Now, did I understand you to testify that Sukiennick'43 Michael or Mitch Sukiennick, or whatever his name happens to be was caught up in his work? A. I would say yes. Q. Well, you said he was, didn't you? A. Yes. _ Q. Well, then, if Sukiennick was caught up in his work, so was Robert Polt, wasn't he? - A. Not necessarily. Q. Well now A. I can explain that. _ Q. Well, go ahead and explain it. A. Well, putting in shanks is the same operation on both Compos and McKay, so that if the McKay side was overburdened with too much work some of that work would be pushed over to the Compos side. Q.` Which side did Polt work on?' A. Compos. Q Which side did Sukiennick work on? A. Compos. This attempted explanation for the difference in the attitude of the respondent toward Polt and Sukiennick is weakened by the fact that' on direct examination Levy had testified, ". . . there was no worry about the Compos side." It is also significant that Winifred Potter, another of the six employees discharged on December 4, worked on, the "Compos side." 4' Sukienmck, an employee in the lasting department and a member of the executive board of the Wayne Shoe Union, was told on November 30 not to go hunting, but was later, on December 1, given permission to go. 44184 f3-42-v of 31--42 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We view as significant in determining the motive of the respondent the fact that during the previous deer hunting seasons 14 during which five of the above six employees were employed by the, respond- ent, four of them had gone hunting without permission and the re- spondent had never taken any disciplinary action against them for such absences from their work. Upon the entire record we do not find the reasons given by the re- spondent for singling out the above six employees for discharge to be convincing. In the light of the entire record, we find, as did the Trial Examiner, that the respondent discharged Kline, Polt, Mills, Ellery Potter, David Potter, Jr., and Winifred Potter, on or about December 4, 1939, because of their membership in and activity on behalf of the United, thereby discouraging membership in the United, encouraging membership in the Wayne Shoe Union, and interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 3. The discrimination against Stanley Jarusik, Frank Krol, and Wyman Smith The complaint alleges that in or about January 1940 the respondent terminated the employment of and refused to reinstate Stanley Jarusik, Frank Krol, and Wyman Smith because of said employees' member- ship in and activity on behalf of the United. The respondent con- tends that it did not call Jarusik back to work after a lay-off in December 1939 because of a belief that he had other employment, that Frank Krol's employment was terminated because he was not in good standing with the Wayne Shoe Union and that Wyman Smith was not reemployed in January 1940 after a lay-off because he never re- turned "to get his job back." Stanley Jarusik worked for the respondent at various times since 1934, his last such employment being from August 1938 until January 1940. He had joined the United in 1936, but discontinued member- ship in 1937. He again joined the United in June 1939. Jarusik was instrumental in bringing a United organizer to Clark's Corners to address certain of the employees,of the respondent in June 1939 at the meeting described above. ' He also announced that meeting to .those employees who attended it and was a leader in soliciting mem- berships for the United among the respondent's employees" about that time. On June 22, 1939, Leuschen came to the trimming machine in the plant where Jarusik was at work and stated to him, "I heard that you are one of the fellows that are starting a union in the shop." ,c The deer hunting season in Pennsylvania is by law limited to a few days during each year BANNER SLIPPER COMPANY, INC. 645 Jarusik refused to sign the petition described above which was signed by most of the respondent's employees on June 24, 1939. About 2 days later Leuschen told Jarusik that he deserved credit for what he had done in organizing the shop, but that Jarusik "had better sign up with the local union." Early in July 1939 Lenschen removed Jarusik from his work as a trimmer and put him to work "pulling up sides." Leuschen at the time of changing Jarusik's work said, " .. . the boys over there don't want you to work with them and if you work there they would have trouble." Lenschen also then told Jarusik that if the C. I. O. organizers should come into the factory "they would get beaten off.7 45 Jarusik was one of those employees who did not sign the petitions mentioned above which were circulated early in August 1939 and was mentioned in the conversation between Van Driesen and Isador Levy about that time as one of the "agitators." About the middle of August 1939, during a conversation with Harold Levy at the factory, Levy said to Jarusik, according to the latter, "Here is fifty dollars, you take this and get out of town, with you out of the way we'll have no trouble with unions in this plant." Although Levy denied making this. statement, we agree with the Trial Examiner who was impressed with the testimony of Jarusik, and we find that Levy made the statement attributed to him. On October 4, 1939, Harold Levy, as found above, mentioned to Ruth Daniels that Helen Jarusik and Stanley Jarusik were working for the C. I. O. Jarusik testified that he helped "clean up the shop" after January 1, 1940, as was customary. Because of rumors that the machines were to be moved, Jarusik testified, he then asked Myers, `•`\Vhen do we come back?" and Myers replied, "I don't know anything about it, but I will let you know when you come Friday for your pay." Ac- cording to Jarusik he returned on the following Friday and found his machine had been operating and thereupon Myers told him that he (Myers) "put one of the other boys on" as Myers did not think that it would pay Jarusik to come to the plant. Jarusik further testi- fied that he then asked when he should return and that Myers replied that there would be no work for a month or more and that Myers would let him know "when we want you." 1 On direct examination Myers testified that Jarusik never did any work in the plant after January 1, 1940, and he denied having had the above conversation with Jarusik. On cross-examination by coun- sel for the Board regarding the conversation in question he testified that he did not "remember" conversing with Jarusik in January 1940. 46 The above is I ased on the uncontroverted testimony of Jarusik. Lenschen did not.tes- tify at the bearing See also footnote 6, supra 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the entire record in the case, We find, as did the Trial Examiner, that the conversation took place substantially as testified to by Jarusik.46 ` Myers admitted that he had never called Jarusik back to work, but testified that it was because another employee, a neighbor of Jarusik, had told him that Jarusik had other work in Binghamton. The record discloses that Jarusik was not working at the time Myers made the bove inquiry. In view of Myers' promise to recall Jarusik "when we want you," his reason for the failure to recall Jarusik is not con- vincing. Jarusik, according to Myers, was a "good worker" and a "nice boy." • We do not believe that the respondent would have taken the casual word of a neighbor and have neglected to recall a competent worker of many years' service. As we have observed, Jarusik was the outstanding proponent of the United in the plant. We are of the opinion that the respondent seized upon the first excuse to rid itself of this active union member. Under all the circumstances we find, as did the Trial Examiner, that the respondent, in failing to recall Jarusik to work in January 1940, discriminated in regard to his hire, and tenure of employment, thereby discouraging membership in the United, encouraging mem- bership in the Wayne Shoe Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Frank Kroll was employed by the respondent in 1934, working until some time in 1935. He resumed his employment in 1936 and con- tinued it until his discharge in January 1940. He last worked as a pull-over machine operator. Krol joined the United in June 1939; and attended the meeting at Clark's Corners during that month as described above. He was men- tioned as one of the "agitators" in the conversation between Van Driesen and Isador Levy early in August 1939. After the closed-shop contract was executed between the respondent and the Wayne Shoe Union on September 21, 1939, Krol never paid any dues to that labor organization, although one of his fellow employees made some dues payments for him. During the first week of January 1940 Krol finished some work that had not been completed before the New Year and was then laid off, supposedly "until they moved the machines around." About the middle of January Krol returned to the plant and asked Myers about '0 Although Myers denied seeing Jarusik at the plant after January 1, 1940, he did admit speaking to him in December 1939 "when we got -through finishing up for the holidays [Christmas ]." Myers testified , "I told Stanley when he come in and got his pay, I noticed something about-well , I said, 'when we want you iie will get in touch with you.' " BANNER SLIPPER COMPANY, INC. 647 returning to work. Myers told Krol that the latter would have to "make up with the local union," before he could resume work. Krol then spoke to Van Driesen regarding-membership in the Wayne Shoe Union, but was informed-about 3 days later that he "had been voted out." Krol was not thereafter recalled- by the respondent. On the basis of the above facts it is clear that the respondent failed to allow Krol to resume work in January 1940 because Krol was not a member in good standing with the Wayne Shoe Union pursuant to the closed-shop contract it had with that labor organization. At the time this closed-shop contract was executed, the Wayne Shoe Union was a labor organization which had been established and as- sisted by the respondent's unfair labor, practices. For that reason such contract does not fall within the proviso of Section 8 (3) of the Act and cannot operate as a defense to the discriminatory refusal to allow Krol to resume work 47 We find that by refusing to allow Krol to resume his employment in January 1940, the respondent discriminated in regard to his hire and tenure of employment, thereby encouraging membership in the Wayne Shoe Union, and discouraging membership in the United.48 We further find that, by such conduct, the respondent_has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. Wyman Smith worked for the respondent from September 1938 until the termination of his employment in January 1940. He was an "uppers layer" at the time of his last employment. Smith joined the United in June 1939. After the respondent signed the closed-shop contract mentioned above, Smith did not make the required dues payments to the Wayne Shoe Union.40 On December 23, 1939, Smith's foreman, Myers, told him that there would be no more work until after the holidays. Smith testified that when he sought to return to work in the .latter part of January, Myers took him to the superintendent's office and told him that if his "name wasn't on there" he "would have to see Joe Van Driesen and get fixed up with the local union." Smith fur- ther testified that Myers had reference to "a list of the union, the local union." 50 Smith also testified that he talked to Van Driesen 44 The proviso states : "that nothing in the Act . . . shall preclude an employer from making an agreement with a labor organization ( not established , maintained or assisted by any action defined in this Act as an unfair labor practice ) to require as a condition of em- ployment membership therein if such labor organization is the representatibes of the employees as provided in Section 9 (a) in the appropriate bargaining unit covered by such agreement when made." "See N. L R B v J Greenbaum Tanning Co., 110 F. ( 2d) 984 , cert denied 311 U S 662. 41 Smith testified that he paid dues only once w The evidence shows that Wayne Shoe Union was keeping posted on the door of the superintendent 's office about that time a list of members in good standing with that labor organization . 648 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD who promised to take the matter up with the Wayne Shoe Union, and that soon thereafter Van Driesen told him that he "was voted out at that meeting." Myers denied that Smith ever returned to the plant in January 1940 and also denied that he ever told Smith that the latter would be required to have his name on the above list before being allowed to work. Myers also testified that he did not remem- ber whether Smith's name was on the list. Van Driesen corroborated Smith's testimony that the Wayne Shoe Union voted Smith "out" about this time. It is unlikely that the Wayne Shoe Union would have found occasion to take such action had Smith'not returned to" seek work in January. Moreover, since Myers admittedly told Krol during January 1940 that Krol would have to be in good standing with the Wayne Shoe Union in order to work, it is likely that he would have made the same requirement of Smith. The Trial Examiner credited Smith's testimony and we find it to be true. It is clear that Myers did not allow Smith to resume work in January 1940 because he was 'not a member -in-good standing with'the'Wayne Shoe Union. The closed-shop contract of September 21, 1939, is no defense to this conduct of the respondent for the same reasons as have already been stated above in discussing the discrimination against Krol. We find that by refusing to allow Smith to resume his employment in January 1940, the respondent discriminated in regard to his hire and tenure of employment, thereby encouraging membership in the Wayne Shoe Union and discouraging membership in the United. We further 'find that by such conduct, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. 4. The alleged discrimination against Mildred Hunter, Doris Bishop,, Stella Barnes; Helen Daniels, and Vincent Polt The complaint alleged that on or about October 4, 1939, the re- spondent discriminatorily terlninted the employment of and refused to reinstate Mildred Hunter, Doris Bishop, Stella Barnes, and Helen Daniels The respondent's defense was that these employees volun- tarily left. their employment and that it did not have any work avail- able for them, when they applied for reinstatement. The Trial Examiner found that they had not been discriminatorily discharged or refused reinstatement, and recommended that the complaint be dismissed as to them. The complaint also alleged that in or about January 1940, the respondent discriminatorily terminated the em- ployment of and refused to reinstate Vincent Polt. Since there was no evidence to show the circumstances of Polt's termination of employ.. ment, the Trial Examiner recommended that the complaint be dis- missed as to -him. No exceptions were filed to the, above findings and BANNER SLIPPER COMPANY, INC. 649 recommendations. We have reviewed the record with respect to the foregoing employees and agree with the findings and recommeiidation= of the Trial Examiner. We find that the evidence does not support the allegations of the complaint that these employees were discrimi- nated against, and, accordingly, such allegations will be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We- find that the activities of the respondent set forth in Section III - above. occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE. REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent dominated and interfered with the formation and administration of the Wayne Shoe Union and con- tributed financial and other support thereto. In order' to effectuate the policies of the Act and to free the employees of the respondent from such domination and' interference, and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed in the Act, we will order the respondent to with- draw all recognition from the Wayne Shoe Union, as representative of any of its employees for the purposes of collective bargaining with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment, and to disestablish the Wayne Shoe Union as such representative. Since the agreement of September 21, 1939, between the respondent and the executive board members of the Wayne Shoe Union embodies recognition of said executive board members as representatives of the respondent's employees, and since this contract represents the fruits of the respondent's unfair labor practices, we will order the respondent to cease giving effect to this or any other agreements it may have entered into with such executive board members or with the Waype Shoe Union, or to any modification or extension thereof. Nothing in our order, how- ever, shall be taken to require the respondent to vary those wage, hour, and other such substantive features of its relations with the employees themselves, which the respondent may have established in performance of these contracts, as extended, renewed, modified, supplemented, or superseded. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Since we have found that the respondent terminated the employment of Karl Niekrewicz, Ruth Daniels, Helen Jarusik, Roland Kline, Ellery Potter, Robert Polt, David Potter, Jr., Winifred Potter, Loren Mills, Stanley Jarusik, Frank Krol, and Wyman Smith because of their membership in and activity on behalf of 'the United, we shall order the respondent to cease and desist from such discrimination. Moreover, to effectuate the'purposes of the Act, we shall order the respondent to offer these employees immediate and full reinstatement to their former or substantially equivalent positions with the re- spondent, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they have suf- fered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount he or she would normally have earned as wages from the date of discrimina- tion against him or her to the date of the offer of reinstatement, less his or her net earnings 51 during such 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. United Shoe Workers of America, affiliated with the Congress of Industrial Organizations, and Wayne Shoe and Slipper Workers Union, Inc., 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 Wayne Shoe and Slipper Workers Union Inc., and con- tributing financial and other support to"it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Karl Niekrewicz, Ruth Daniels, Helen Jarusik, Roland Kline, Ellery Potter, Robert Polt, David Potter, Jr., Winifred Potter, Loren Mills, Stanley Jarusik, Frank Krol, and Wyman Smith, thereby encouraging membership in Wayne Shoe and Slipper Workers Union Inc., and discouraging membership in United Shoe Workers of America, the respondent has engaged, in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. "By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but 'for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See matter of Crossett Lumber Company and-United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Saitmtll Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. National Labor Bela- fsons Board, decided by United States Supreme Court, November 12, 1940 BANNER SLIPPER -COMPANY, INC. 651 4. By interfering with, restraining, and coercing its employees in their 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. 6. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to Doris Barnes, Mildred Hunter, Doris Bishop, Stella Barnes, Helen Daniels, and Vincent Polt. 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 respondent, Banner Slipper -Co.,, Inc., Honesdale, Pennsylvania, and its officers, agents, successors, and assigns, shall: • 1. Cease and desist from : (a) Dominating or interfering with the administration of Wayne Shoe and Slipper Workers Union Inc., or with the formation or administration of any other labor organization of its employees and from contributing financial or other support to Wayne Shoe and Slipper Workers Union Inc., or any other labor organizations of its employees; (b) Recognizing Wayne Shoe and Slipper Workers Union Inc., is the representative of any of its employees for the purpose of deal- ing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of work : (c) Giving effect to its contract of September 21, 1939, or any modification or extension thereof, or any other contract it may have entered into with the executive board members of Wayne Shoe and Slipper Workers Union Inc., or with that labor organization; (d) Encouraging membership in Wayne Shoe and Slipper Work- ers Union Inc., or any other labor organization of its employees, or discouraging membership in United Shoe Workers of America or any other labor organization of its employees by discriminating in regard to hire or tenure of employment or any term or condition of employ- ment; and (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the National'Labor Relations Act. I • . I 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : . (a) Withdraw all recognition from Wayne Shoe and Slipper Workers Union Inc., and the Executive Board of that labor organi- zation, as a representative or representatives of its employees _for the purposes of dealing, with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment and completely disestablish Wayne Shoe and Slipper Workers Union, Inc., and the Executive Board of that labor organization as such representative or representatives; _ (b) Offer to Karl Niekrewicz, Ruth Daniels, Helen Jarusik, Roland Kline, Ellery Potter, Robert Polt, David Potter, Jr., Wini- fred Potter, Loren Mills, Stanley Jarusik, Frank Krol, and Wyman Smith immediate and full reinstatement to'their former or substan- tially equivalent positions without prejudice to their seniority or other rights and privileges; (c) Make whole Karl Niekrewicz, Ruth Daniels, Helen Jarusik, Roland Kline; Ellery Potter, Robert Polt, David Potter, Jr., Wini- fred Potter, Loren Mills, Stanley Jarusik, Frank Krol, and Wyman Smith for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to the hire and tenure of their employment and the terms and conditions of their employment, by payment to each of them respectively, of _a sum of money equal to that which he or she normally would have earned as wages during the period from the date of such discrimination to the date 'of the offer of reinstatement less his or her net earnings 52 during said period; (d) Post immediately in conspicuous places at its plant and maintain for a period of at least sixty (60) consecutive' days from the date of posting, notices to its employees stating:, (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), (d), and (e) of this Order; (2) that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the respondent's employees are free to become or remain members of United Shoe Workers of America, and the respondent will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the allegations of the complaint with respect to Doris Barnes, Mildred Hunter, Doris Bishop, Stella Barnes, Helen Daniels; and Vincent Polt be, and the same hereby are, dismissed. 0 See footnote 51, supra.