Gotham Shoe Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1939

12 N.L.R.B. 543 (N.L.R.B. 1939)

In the Matter of GOTHAM SHOE MANUFACTURING Co., INC. and
UNITED SHOE WORKERS OF AMERICA , LOCAL No . 141, C. I. O.
Case No. C-678-Decided April 208,1939
Shoe Manufacturing Industry-Interference, Restraint, and Coercion: no
findings as to, because of compliance with Trial Examiner's recommendations;
complaint not dismissed since recommendations contemplate a continuing course
of conduct-Discrimination : charges of, not sustained-Collective Bargaining:
charges of refusal to bargain collectively dismissed since the Union waived
that portion of its exceptions directed to the recommendation of the Trial
Examiner that the 8 ( 5) allegations be dismissed.
Mr. Peter J. Crotty, for the Board.
Grant & Angoff, by Mr. Sidney S. Grant, of Boston , Mass. , and Mr.
Leo Goodman, of Washington, D. C., for the Union.
Chernin & Gold, by Mr. B. H. Chernirn and Mr. J. B. Gitlitz, of
Binghamton, N. Y., for the respondent.
Mr. William B. Barton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by the United Shoe Workers of America,
Local No. 141, Committee for Industrial Organization, herein called
the Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Third Region (Buffalo, New
York) issued its complaint dated January 24, 1938, against Gotham
Shoe Manufacturing Co., Inc., Binghamton, New York, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (3), and (5), and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint, accompanied by a notice of hearing,
were duly served upon the respondent and upon the Union.
Regarding the unfair labor practices the complaint alleged in sub-
stance that the respondent on or about August 5, 1937, and on vari-
ous dates thereafter, refused to bargain with the Union as the ex-
clusive representative of a majority of its employees in an appro-
priate unit; that the respondent terminated the employment of six
12 N. L. R. B., No. 65.
543
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
named employees and had since refused to reemploy them for the
reason that they had joined and assisted the Union and had engaged
in concerted activities with other employees for the purposes of col-
lective bargaining and other mutual aid and protection; that the
respondent by threats, conversations, and various other acts of its
officers, agents, and servants discouraged the concerted activities of
its employees for the purpose of collective bargaining. The com-
plaint further alleged that the respondent by all the acts enumerated
intimidated, restrained, and coerced its employees in the exercise of
their rights guaranteed in Section 7 of the National Labor Relations
Act.
The respondent filed an answer in which it denied that it had en-
gaged in any of the unfair labor practices alleged in the complaint;
admitted that the Union represented a majority of its employees on
September 14, 1937, but denied that since said date the Union had at
all times represented a majority of its employees, admitted the dis-
charges alleged in the complaint, but alleged that they were for good
and sufficient cause.
Pursuant to notice, a hearing on the complaint was held in Bing-
hamton, New York, on February 18, 19, and 23, 1938, before Joseph
L. Maguire, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties.
At the hearing counsel for the Board moved that the complaint
be dismissed in so far as it alleged that the respondent had discrim-
inated in regard to the hire and tenure of employment of Burns
Rogers, Dorothy Turner, Ethel Heaton, and Anna Flint. The Trial
Examiner granted the motion and his ruling is hereby affirmed.
Counsel for the Board also moved that the complaint be amended to
include Joseph Simko and Luzerne Ellsworth among the persons the
respondent had discriminatorily discharged and thereafter refused
employment. The respondent objected to the granting of such mo-
tion, but stated that it would waive the giving of notice of such
amendment. The motion was granted by the Trial Examiner. In
view of our findings herein, it becomes unnecessary to pass upon this
ruling.
Prior to the hearing the respondent filed a motion for a bill of
particulars. The motion was not renewed at the hearing. The re-
spondent was assured by the Trial Examiner that if it were sur-
prised at the hearing it would be granted a reasonable opportunity
to prepare its defense . No surprise was claimed by the respondent.
The Trial Examiner in his Intermediate Report denied the motion
for a bill of particulars; the ruling is hereby affirmed.
GOTHAM SHOE MANUFACTURING CO., INC. 545
At the beginning of the hearing the respondent moved to dismiss
the complaint as not containing a clear and concise statement of the
facts and on the ground that the Act is unconstitutional. At the
close of the Board's case, the respondent moved to dismiss the com-
plaint on the ground that the evidence did not prove the charges
alleged in the complaint. The Trial Examiner denied both motions.
These rulings are hereby affirmed.
During the course of the hearing and in the Intermediate Report,
the Trial Examiner made several rulings on other motions and on
objections to the admission of evidence. We have reviewed all such
rulings and find that no prejudicial errors were committed. Such
rulings are hereby affirmed.
On May 20, 1938, an Intermediate Report was filed by the Trial
Examiner, in which he found that the respondent had engaged in and
was engaging in unfair labor practices within the meaning of Sec-
tion 8 (1) of the Act. He recommended that the respondent cease and
desist and take certain affirmative action with respect thereto. He
also recommended that the complaint be dismissed in so far as it al-
leged that the respondent had refused to bargain collectively with the
Union within the meaning of Section 8 (5) of the Act and that the
respondent had discriminated in regard to hire and tenure of
employment within the meaning of Section 8 (3) of the Act.
On June 6, 1938, following an order extending the time within
which the Union might file exceptions, the Union filed exceptions to
the Intermediate Report in so far as it recommended dismissal of
the allegations of the complaint that the respondent had engaged
in unfair labor practices within the meaning of Section 8 (3) and
(5) of the Act. Thereafter, the Union filed a waiver of its excep-
tions relating to the 8 (5) allegations.
Pursuant to notice, a hearing was held before the Board on Octo-
ber 25, 1938, in Washington, D. C., for the purpose of oral argu-
ment. The respondent and the Union were represented by counsel
and participated in the hearing. The Board has considered the
exceptions filed by the Union and briefs filed by both parties.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a corporation organized under the laws of New
York with its offices and plant at Binghamton, New York, is engaged
in the manufacture and sale of shoes. In 1937 the respondent used
raw materials worth $334,000, 90 per cent of which came from outside
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the State of New York. In the same year the respondent shipped
95 per cent of its finished products worth $688,000 to points outside
the State of New York--
The respondent normally has in excess of 300 production employees.
During 1937 it had a maximum of 358 such employees in January
and a minimum of 162 in October.
II. THE LABOR ORGANIZATION INVOLVED
United Shoe Workers of America, Local No. 141, is a labor organ-
ization affiliated with the Committee for Industrial Organization,
admitting to membership all production employees of the respondent,
but excluding supervisory and clerical employees.
M. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union, which was chartered in July 1937, began active organ-
izational activities among the employees of the respondent during
the summer of 1937. It was assisted in these activities by Henry
Leng, an organizer, who was in Binghamton at various times from
August until December 1937. Leng helped conduct various meetings
of the union members and carried on other organizational activities.
In August the Union, claiming to represent a majority of the re-
spondent's employees, met with representatives of the respondent
to discuss the possibility of an agreement covering wages and other
terms of employment. No agreement was, however, reached. Ap-
proximately a week following the conference, Gardner, the factory
superintendent, and Frankel, tho respondent's treasurer, caused bal-
lots to be passed among the employees on which the employees were
to indicate whether they would "go along with Gotham Shoe Mfg.
Co., Inc., at labor rates in effect today" on orders accepted from two
of the respondent's customers.
The Union made a further attempt to negotiate with the respondent
and on September 3, 1937, it was agreed between the respondent and
the Union that the Regional Director of the Board for the Third
Region should conduct an election on September 14 among the re-
spondent's employees to determine whether a majority of them de-
sired the Union to be their representative for the purposes of collec-
tive bargaining. Thomas Holland, an employee, testified that prior
to the holding of such election Gardner stated to him that the Union
1 By a stipulation entered into at the hearing between counsel for the respondent and
the attorney for the Board "the respondent admits that it is engaged in interstate
commerce."
GOTHAM SHOE MANUFACTURING CO., INC. 547
would not do any good in the factory; that the- C. I. O. was com-
posed of reds, radicals, and communists; that the employees would
have to pay dues to the Union and would get no benefits; and that
the first thing the Union would do would be to go on strike and
spoil the business. Gardner denied making the foregoing remarks,
but admitted that he had on one occasion discussed the Union with
Holland. He testified that on such occasion he had been approached
by Holland who had asked for his personal opinion as to the merits
of the C. I. O. and that he had stated as his unofficial opinion that
he did not think the C. I. O. would get anywhere "because they have
too much outside influence among the Communist Party."
In the election which was conducted by the Regional Director on
September 14, 1937, pursuant to the agreement of the parties, the
Union received 96 of the 166 votes cast. On September 17, 1937, the
Regional Director so advised the respondent and the Union. On
October 4 or 5, 1937, a meeting was held at the respondent's plant
at which a number of employees and Gardner, Frankel, and Anthony
Testani, a foreman, were present. Joe Dugo, an employee, spoke at
the meeting, and stated that he could see no reason why the em-
ployees should abide by the results of the election and suggested that
the employees apply to the State Labor Relations Board for a new
vote. Holland testified that Gardner spoke at the meeting in support
of the suggestion made by Dugo. Gardner admitted being present
at the meeting, but testified that he did not hear what was said. He
did not deny having spoken in favor of another election.
With regard to his own activity at the aforesaid meeting, Frankel
testified that in response to a question he stated, ". . . I was out to
Chicago about 2 or 3 weeks previous and was offered an order from
Sears & (sic) Roebuck & Company for 1,000 pairs of sandals at 521/2
cents, and our price was 55 cents, and I didn't dare take it because I
was afraid. And that is all I said."
On the basis of their own testimony it appears probable that Gard-
ner and Frankel engaged in the foregoing activities which are at-
tributed to them. On May 23, 1938, however, the respondent, acting
pursuant to the recommendations contained in the Trial Examiner's
Intermediate Report, posted in conspicuous places in its factory,
copies of a notice stating in part that it would "cease and desist
from interfering with, restraining, or coercing its employees in the
exercise of the right of self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives
of their own choosing."
Since the respondent has already indicated its intention of com-
plying with the Act and has posted notices so informing its em-
ployees, we find it unnecessary, under the circumstances, to make
169134-39-vol. 12-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any findings as to whether, by the activities set forth above, the re-
spondent has interfered with, restrained, or coerced its employees in
the exercise of the rights guaranteed by Section 7 of the Act.
B. The alleged discriminatory discharges
The complaint, as amended at the hearing, alleged that the re-
spondent had terminated the employment of Thomas Holland, Irene
Jordan, Joseph Simko, and Luzerne Ellsworth, and had since refused
to reemploy said persons, because they had joined and assisted the
Union and had engaged in concerted activities with other employees
for the purposes of collective bargaining and other mutual aid and
protection. In his Intermediate Report the Trial Examiner found
that the respondent had not discriminated against the four individ-
uals and recommended that the allegations of the complaint with re-
spect to the said individuals be dismissed. The Union thereafter
filed exceptions to said findings and recommendations of the Trial
Examiner.
During 1937 the number of production employees of the respond-
ent decreased from 358 in January to 162 in October, the month in
which three of the persons named in the complaint were alleged to
have been discriminatorily discharged. During the same period the
total number of working hours of the respondent's production em-
ployees decreased from 15,702 hours in January to 3,318 hours in
October. The undenied testimony of a number of witnesses for the
respondent was to the effect that work was slacker in October 1937
than ever before. The unrefuted testimony of witnesses for the re-
spondent also indicated that the respondent followed the principle of
seniority in making lay-offs during slack periods. The respondent
contends that Holland, Jordan, and Simko were laid off because of
the slackness in work and that the lay-offs were in accordance with
seniority. It states that Ellsworth was discharged on account of
unsatisfactory work, after due warning.
Thomas Holland had worked for the respondent intermittently
since 1923. Between 1929 and 1937, he was laid off and reinstated by
the respondent on ten different occasions. His last term of employ-
ment was from April 12 to October 7, 1937, the date of his allegedly
discriminatory discharge. He worked during this period as a staple
laster.
Holland joined the Union early in August 1937 and was active as
a member of the Shop Committee. He was also active on a commit-
tee appointed by Henry Leng, the union organizer to investigate
grievances in the factory, and on various occasions conferred with
the respondent's supervisory employees in connection with different
GOTHAM SHOE MANUFACTURING CO., INC. 549
grievances. He was also present at various conferences held between
representatives of the respondent and the Union with respect to col-
lective bargaining.
Holland testified that on October 7, 1937, his foreman, Testani, in-
formed him that he was being laid off, stating, "Well, Tom, it is got
to be a lay-off ... The lay-off, of course, you will realize, you are
the youngest man on the job, and the way the work is, we have to lay
someone off." Holland admitted that he made no protest at the time
and that he had never complained to the respondent of unjust
treatment in the matter.
The respondent was during the period inclusive of the date of
Holland's lay-off engaged in supplanting its staple-lasting machines
with thread-lasting machines because of the greater efficiency of the
latter. At the time of Holland's lay-off, the respondent retained on
the staple-lasting machines only five employees, all of whom ad-
mittedly had greater seniority than Holland. The latter contended,
however, that the respondent retained Joe Janette, a thread laster
with one-half hour less senoirity than he had. Holland admitted,
however, that his last termination of employment was at his own
request and that he predicated his claim to greater seniority upon
counting such termination of employment as a leave of absence. The
undisputed testimony of Carl Gardner, plant superintendent, was
that leaves of absence are not granted in the respondent's plant and
that when an employee of his own accord quits his work he thereby
loses his seniority rights. We find that the respondent has not dis-
criminated with regard to the hire and tenure of employment of
Thomas Holland.
Irene Jordan had worked for the respondent 2 years and 5 months
when her employment was terminated on October 11, 1937. She was
employed at the time as a vamper in the stitching room. Although
Mrs. Jordan had joined the Union in August 1937, she was not active
in it.
Mrs. Richards, the forelady in the stitching room, testified that at
the time Mrs. Jordan was laid off the work in the factory was the
"slowest" in her 19 years at the plant and that Mrs. Jordan was laid
off because she was the vamper with the least seniority. Mrs. Jordan
admitted that the work was slow at the time and did not deny on
cross-examination that the other vampers had greater seniority. On
the same day Mrs. Jordan was laid off, Mrs. Richards also laid off
her own daughter, a Miss Maples, who, at the time of the hearing,
was still unemployed.
After her lay-off, Mrs. Jordan telephoned her forelady twice in
regard to returning to work. On January 21, 1938, the date of the
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
second telephone call, Mrs. Jordan sent Mrs. Richards, her forelady,
a post card, stating that she had been unable to hear Mrs. Richards
over the telephone and adding "I need work bad and beleave (sic)
me "I'll be glad to get back there as that is one good place to work
and you're not so bad your self." The post card also listed the tele-
phone number of Mrs. Jordan's sister and stated "If I am not there
she (will) tell me." Mrs. Richards testified that on the following
day a job became available and that she called Mrs. Jordan's sister
and left word for Mrs. Jordan to come to the plant. Neither Mrs.
Jordan nor her sister denied this testimony. Mrs. Jordan did not
communicate with Mrs. Richards and after several days the job was
given to Iva Hafey, a former employee who had been out of work
for some time as a result of an automobile accident.
We find that the respondent has not discriminated with regard to
the hire and tenure of employment of Irene Jordan.
Joseph Simko had worked for the respondent except for certain
lay-offs for about 14 years prior to the termination of his employ-
ment on October 11, 1937. Except for a few months of that time,
he worked in the cutting room, engaged principally in cutting gor-
ings for Romeo shoes, a type of house slipper. His work did not
require any particular skill. Simko joined the Union in September
1937 and he testified that he had been active in enlisting membership
among the Poles and Slavs.
Simko testified that when he was laid off by Parsons, his fore-
man, the latter stated that when work picked up Simko would be
called. He also testified, however, that when he sought work 2 days
later Parsons stated, "Let the C. I. O. help you." Parsons denied
having made any such statement and testified that he did not know
Simko was a member of the Union until he heard Simko testify to
that effect at the hearing. Parsons further testified that at the time
Simko was laid off there existed a seasonal slack in the work on the
Romeo shoes and as a consequence it became necessary to lay off either
Simko or Victor Gaedz, another employee in the cutting room; that
Gaedz performed various and complicated tasks, most of which Simko
was unqualified to do, such as cutting damaged parts of shoes and
matching leather in order to make replacements therein, operating
perforating and punching machines, and checking work out of the
cutting room and into the stitching room. The latter task required
an ability to read and write, a knowledge of arithmetic, and famil-
iarity with a code system of the respondent. Both Parsons and
Gardner, the plant superintendent, testified that Simko's ability and
knowledge of English were insufficient to enable him to perform this
work. It is to be noted in this regard that Simko attempted to tes-
tify in English at the hearing, but it proved necessary to resort to
the use of an interpreter for him.
GOTHAM SHOE MANUFACTURING CO., INC . 551
The respondent states uncontrovertedly that Simko had been regu-
larly laid off each year during the slack season on Romeo shoes and
also states its intention to rehire Simko to cut gorings as soon as
sufficient orders for Romeo shoes are obtained. Parsons' testimony
was unrefuted that at the time he laid off Simko he wrote down
Simko's address in order to notify him as soon as work was available.
We find that the respondent has not discriminated with regard to
the hire and tenure of employment of Joseph Simko.
Luzerne Ellsworth had worked intermittently for the respondent
for 14 years and, prior to his discharge on January 17, 1938, had
worked under Mrs. Richards, forelady, as vamper in the stitching
room. He joined the Union in September 1937, but had never been
active in it.
Mrs. Richards, who discharged Ellsworth on January 17, testified
that she had discharged Ellsworth on four previous occasions be-
cause of unsatisfactory work and that she had on numerous occa-
sions warned Ellsworth about his poor work. She had warned Ells-
worth about his work on one occasion approximately 2 months before
his discharge on January 17. Ellsworth stated that his prior dis-
charges were on account of personal reasons, but admitted that he
had been admonished for poor work on various occasions. On Jan-
uary 17, Mrs. Richards discovered a case of Ellsworth's work which
had been poorly done. She thereupon called the vampers together,
stating that they would have to do better work and that she was
discharging Ellsworth as an example. Under all the circumstances
and in view of Ellsworth's own testimony that he had not been active
in the affairs of the Union, we think that there is no sufficient basis
for concluding that his discharge was discriminatory within the
meaning of the Act.
We find that the respondent has not discriminated with regard to
the hire and tenure of employment of Luzerne Ellsworth.
C. The alleged refusal to bargain collectively
The complaint alleges that on August 5, 1937, and on various dates
thereafter, the respondent refused to bargain collectively with the
Union which represented a majority of the employees of the re-
spondent within an appropriate unit. In his Intermediate Report,
the Trial Examiner found that the respondent had not so refused
to bargain within the meaning of Section 8 (5) of the Act. On or
about June 25, 1938, the Union waived exceptions which it had filed
on June 6, 1938, in so far as said exceptions pertained to the afore-
said finding of the Trial Examiner.
On the basis of the foregoing, we find that the respondent has not
refused to bargain collectively with the Union within the meaning
of Section 8 (5) of the Act.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 'UPON COMMERCE
We find that the unfair labor practices in which the respondent
has engaged, occurring in connection with the operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Shoe Workers of America, Local No. 141, is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
2. The operations and business of the respondent constitute a con-
tinuous flow of trade, traffic, and commerce among the several States,
within the meaning of Section 2 (6) of the Act.
3. The respondent has not discriminated in regard to hire or tenure
of employment, thereby discouraging membership in a labor organ-
ization and engaging in an unfair labor practice, within the meaning
of Section 8 (3) of the Act.
4. The respondent has not refused to bargain collectively with the
representatives of its employees, thereby engaging in an unfair labor
practice, within the meaning of Section 8 (5) of the Act.
5. The respondent has not, by any refusal to bargain collectively
or discrimination in regard to hire or tenure of employment, inter-
fered with, restrained, or coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby engaging in an
unfair labor practice within the meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board orders that the complaint against
Gotham Shoe Manufacturing Co., Inc., as amended, in so far as
it alleges that the respondent has engaged in unfair labor practices
within the meaning of Section 8 (3) and (5) of the Act and that,
by a refusal to bargain collectively and by discrimination in regard
to hire or tenure of employment, it has engaged in an unfair labor
practice within the meaning of Section 8 (1) of the Act, be, and it
hereby is, dismissed.