Beckerman Shoe Corp. of Kutztown

National Labor Relations Board - Board Decisions

Aug 21, 1942

43 N.L.R.B. 435 (N.L.R.B. 1942)

In the Matter of BECKERMAN SHOE CORPORATION OF KUTZTOWN and
UNITED SHOE WORKERS OF AMERICA (AN AFFILIATE Oi THE CIO)
Case No. C-1953.-Decided August 01, 19x2
Jurisdiction : shoe manufacturing industry
Unfair Labor Practices
Interference, Rest amt, and Coercion: anti-union statements; threat to move
plant; inciting, employees to attack union organizer; warning employees not
to join union
Discrimination: discharging and refusing to reemploy certain employees for their
unwillingness to assist the employer in combating union and others because
of their union membership and activity; transferring an employee to a job
that resulted in a"substantial loss of earnings and subsequently discharging
him because of his union membership and activity. -
Remedial Orders : employer ordered to cease and desist unfair labor practices;
reinstatement and back pay awarded discriminated employees ; period between
Trial Examiner's Intermediate Report and Decision excluded as to certain
employees; execution of releases by certain employees subsequent to their
discharge held not to bar remedial reinstatement and back pay order. - '
Practice and Procedure : complaint dismissed as to an individual because of
his lack of integrity. -
Mr. Robert H. Kleeb and Mr. Geoffrey J. Cun' iff, for the Board.
Stevens cfi Lee, by Mr. Allan K. Grins and Mr. John D. Glase, of
Reading, Pa., for the respondent; Mr. Charles L. Fleece, of New York
City, of counsel.
Mr. Issac Shada, of Lancaster, Pa., for the Union.
Mr. James R.- Doyle, of Reading, Pa., for Charles Haddad.
Mr. Roman Beck, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Shoe
Workers of America, affiliated with the Congress of Industrial Or-
ganizations, herein called the Union, the National Labor Relal ions
Board, herein called the Board, by the Regional Director for the
Fourth Region (Philadelphia, Pennsylvania), issued its comp'aint
43 N L R B, No. 75 1 ,
435
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dated May 8, 1941, against Beckerman Shoe Corporation of Kutz-
town, Kutztown, Pennsylvania, herein called the respondent, alleg-
ing that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the -leaning of Section 8
(1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint,
accompanied by a notice of, hearing, were duly served upon the
respondent and the Union.
With respect to the unfair labor practices, the complaint alleged,
in substance : (1) that the respondent discouraged membership in
the Union by discharging six employees and refusing to reinstate
all but one of them because of, their membership in the Union and
activities in its behalf ;1 (2) that by the' foregoing acts and by urging
its employees to resign from the Union, threatening to close its Kutz-
town plant and to deprive its employees of work if the Union suc-
ceeded in organizing the plant, requesting employees to, engage in
surveillance of union meetings, questioning employees about union
affairs, and inciting employees to assault a union organizer in order to
prevent the distribution of union leaflets, the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On May 17, 1941, the respondent filed its answer, denying that it
had engaged in any of the unfair labor practices alleged in the com-
plaint, but admitting that it was engaged in interstate commerce. The
answer further alleged that five of the six employees alleged to have
been discriminated against had quit voluntarily, and that the sixth
employee had been discharged for cause. On May 29, 1941, the re-
spondent filed an amended answer containing the additional aver-
ment that, subsequent to the termination of their employment, three
of the employees named in the complaint had released it from any
liability arising out of the termination of their enmploynient.
Pursuant to notice, a hearing was held at Reading, Pennsylvania,
on May 29 and June 2, 1941, before Walter Wilbur, the Trial Exam-
iner duly designated by the Chief Trial Examiner. The Board and
the respondent were represented by counsel, and the Union by its
organizer; all parties participated 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. During the
hearing the Trial Examiner made rulings on,motions and on objec-
tions to the admission of evidence; at the close of the hearing, he
granted, without objection, a motion of counsel for the Board to
i The naiaes of these employees are Albert Azai, Subrey Azar, Charles Haddad, Howard H.-
Schlegel, Anna Haas, and Lee G. Bryant.
BECKERMAN SHOE CORPORATION OF KUTZTOWN 437
conform the' pleadings to the proof. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed. At the conclusion
of the hearing, the Trial Examiner afforded the parties an oppor-
tunity for oral argument before him, but they did not avail themselves
of the opportunity; the respondent, however, submitted a brief to
the Trial Examiner. -
On August 16, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were served on all parties, in which he found
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the Act. He recommended that
the respondent cease and desist from these unfair labor practices,
reinstate with back pay three of the employees discriminated against,
and make whole another who had been reinstated prior to the hear-
ing.,
On September 8, 1941, the respondent filed exceptions to the Inter-
mediate Report. It also filed a petition to reopen the hearing, in
which,it alleged that Charles Haddad, one of the. employees found to
have been discriminated against, desired to recant testimony which he
gave at the hearing. - On October 2, 1941, the Board granted the
prayer of that petition and ordered that the record be reopened and
that a further hearing be held.
Pursuant to notice, a further hearing was held at Reading, Pennsyl-
vania, on October 21, 1941, before Trial Examiner Wilbur. The
Board, the respondent, and Charles Haddad were represented at the
hearing by counsel, and the Union by its representative; all parties
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine '-witnesses, and- to introduce evidence bearing upon
the issue which was the subject of the further hearing was afforded
all parties. During the hearing the Trial Examiner made rulings
on motions and on objections to the admission of evidence. The
Board has reviewed these rulings and finds that no prejudicial errors -
were committed. The rulings are hereby affirmed. The parties were
also afforded -an- opportunity subsequent to the hearing to submit
briefs to the Trial Examiner; the respondent availed itself of the
opportunity.
On November 24, 1941, the Trial Examiner issued a 'Supplemental
Intermediate Report in which he found that subsequent to the first
2 Subsequent to the hearing the Trial Examiner ordered that the official transcript of the
hearing be corrected in certain minor respects , in accordance with a stipulation of the
parties. -
The three employees whose reinstatement was recommended were Albert Azar, Subrey
Azar, and Charles Haddad ; the other employee discriminated against was Lee G. Bryant.
The Tual Examiner found that the other two employees named in the complaint had not
been discriminated against and accoidingly recommended that the complaint be dismissed
as to them.
438 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing Charles Haddad made statements concerning the termination
of employment of himself and of Albert and Subrey Azar which were
contrary to the testimony he gave at the first hearing. The Trial
Examiner recommended' that- the complaint be dismissed as to Albert
Azar, Subrey Azar, and Charles Haddad ; in other respects he adhered
to the recommeriddtions of his original Intermediate Report. On
December 12, 1941, the respondent filed exceptions to the Supple-
-mental Intermediate Report and requested permission to argue orally
before the Board. It thereafter submitted a brief in support of its
exceptions. On March 5, 1942, pursuant to notice, a hearing was held
before the Board in Washington, D. C., for the purpose of oral argu-
ment. The respondent was represented at the argument by counsel;
and-the Union by its organizer; both participated in the argument.
The Board hiis considered the exceptions and briefs filed by the
respondent, and except as the exceptions are consistent with the find-
ings, conclusions, and order set forth below, finds no merit in them.
- Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Beckerman Shoe Corporation of Kutztown, is a
Pennsylvania corporation engaged at Kutztown, Pennsylvania, in the
manufacture and,sale of shoes. In the conduct of its business, the
respondent uses leather, rubber, paste, heels, and soles. During 1940,
it purchased $433;252 worth of these materials, of which 80 percent
was purchased in-States-other than Pennsylvania and was shipped to
its Kutztown plant from the State of origin. The respondent's sales
during 1940 were in excess of $785,000; 90 percent of the shoes which
it sold in that-period was shipped from the Kutztown plant to pur=
chasers in other States. In answering the complaint, the respondent
admitted that it is engaged in commerce within the meaning of the ;pct.
II. THE ORGANIZATION INVOL\ ED
United Shoe Workers of America is a labor organization affiliated
with the Congress of Industrial Organizations ; it admits to member-
ship employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
In •August , 1940, Isaac Shada ,, a representative of the Union began
to organize the respondent 's Kutztown workers. - Albert 4 and Subrey
4 At times Albert Azar is referred to in the record as "Aubrey" Azar.
BECKERMAN SHOE CORPORATION OF KUTZTOWN 439
Azar, working foremen, joined the Union at the outset of this cam-
paign and solicited their fellow workers to join. Otto Degen, the
superintendent of the Kutztown plant, repeatedly warned the Azars
after the membership drive had begun that Max Beckerman, president
of the respondent, would close the plant if the Union succeeded in
organizing the employees. Degen denied generally having made re-
marks of this character, but we, like the Trial Examiner, are unable to
credit his denial.
In September 1940, the employees in Albert Azar's department,
known as the Goodyear stitching department, stopped work in a body
to enforce a demand for a wage. increase. When the work stoppage
was in progress, President Max Beckerman told Superintendent
Degen in the hearing of Subrey Azar "to watch" Albert Azar, adding
that Albert Azar was an "agitator" and the person who had incited
the stitchers to demand higher W 'ages.'
- In the afternoon of October 21, 1940, while Shada, the union organ-
izer, was distributing leaflets outside the plant, Superintendent Degen
ordered Albert Azar to "chase" Shada "away" from the plant. Degen
prefaced this instruction by saying that he had just talked with Presi-
dent Max Beckerman on the telephone and Beckerman had directed
him to convey the order. Degen also approached Subrey Azar at-
this time and said to him that Max Beckerman had ordered that he
"go out and beat [the union organizer and] chase him away from
there." Neither of the Azars was willing to carry out Degen's orders.
In so iliforming Degen, they bottomed their refusal on an experience
which they had in 1937 when, at Degen's direction, they assaulted a
union organizer.6 Degen remonstrated with each of the Azars for
refusing to attack Shada, telling them that Max Beckerman would
shut clown the plant the minute it became organized and that they
would then all be out of work. The Azars, however, failed to heed
his remonstrance. The findings -relating to this incident are based
upon the testimony of the Azars; Degen and Max Beckerman gave
contrary testimony. In resolving the conflict, we, as did the Trial
Examiner; credit the Azars. Several considerations impel us to this
conclusion : first, as we hereinafter point out, Beckerman's credibility
Neither Max Beckerman nor Degen denied the testimony of Subrey Azar upon which
this finding is based
6 The Union attempted in 1937 to organize the Kutztown plant when several union
organizers appeared outside the plant one day, the Azars were told by Degen "to beat [the
union organizers ] up,"-to quote from Albert Azar's testimony . In carrying out Degen's
orders, the Azars assaulted one of the organizers ; a criminal prosecution followed The
Azars were held to bail by the magistrate ' for the action of the grand jury . Bail was
furnished through Max Beckerman , and the arrangements for the release of the Azars were
made by the respondent 's attorneys. The criminal prosecution terminated when the grand
jury failed to indict . Degen denied that he instructed the Azars to commit the assault
which led to the criminal proceeding , contending that they had acted on their own initiative.
Neither the Tral Examiner nor we credit his denial.
440 - DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
is impeached by his implausible explanation for the termination of the
Azars' employment ; secondly, Degen's veracity , as we hereinafter
show; is impugned by the false explanation he gave for , the termina-
tion of Bryant's employment-an explanation , it should be noted,
which was contradicted by the very witness upon whom the respond-
ent relied for its confirmation ; and finally, the other incidents, de-
scribed in this subsection , persuasively demonstrate that Beckerman
and Degen had a deep -seated antagonism to the Union , and antagonism
which affords a plausible motive for the Shada episode.
On October 21, 1940, in the evening, Shada, accompanied by another
organizer , visited Edwin Haas , an employee of the stitching depart-
ment, for the purpose of inducing Haas to join the Union . Later that
night, after Shada and his companion had left Haas' home, Louis
Beckerman and David Beckerman , the son and nephew, respectively,
of President Max Beckerman , paid Haas an unprecedented visit.
Either Louis or David Beckerman observed that Haas had "had com-
pany," after which David Beckerman asked Haas whether Albert Azar
had instigated the stitchers to demand higher wages ; Haas replied in
the negative.7
Superintendent Degen approached Haas at work the" next day and
said that he heard Haas had a "party" at his home the night before.
Degen went on to say, in the words of Haas, " * * * it is wrong to
fool with this kind of people ; they get you into trouble ." Haas re-
plied: "* * * I lost one good job on account of the union , I didn't
sign up, and . I don't want to lose another one." Superintendent Degen
then declared that Haas would be better off not to join the Union even
if the Union were able to obtain a wage increase for the employees since
they would be called upon to support strikes at other plants. In
general terms, Degen denied that he had ever discussed joining the
Union with any employee , but he did not specifically deny the state-
ments attributed to him by Haas. The Trial Examiner believed
Haas' testimony ; we concur. -
Anna Haas, the wife of Edwin Haas, worked for the respondent in
a department over which Eli Beckerman , a brother of President Max
Beckerman , -was the foreman . She joined the Union on October 21,
1940, and persuaded several of her fellow workers to join. On Oc-
tober 26, 1940 , Foreman Eli Beckerman asked her to report to him
after working hours. At the close of the day Eli Beckerman asked
her whether it was true , as he had heard, that she was a member of
the Union and had induced other employees to join. Haas admitted
that such was the case , but said that she had not as yet turned in the
union membership applications which her fellow workers had signed.
On hearing this, Eli Beckerman reminded her that she had worked a
7 The findings as to this conversation rest upon the uncontradicted testimony of Haas.
BECKERMAN SHOE CORPORATION OF KUTZTOWN 441
long time for the respondent and earned that his brother, President
Max Beckerman, would remove the Kutztown plant rather than toler-
ate a union among the employees.' He then admonished her to "think
it over," pointing out that she would be without a job if the plant
was removed. In the course of this conversation, Eli Beckerman
argued against the Union by' saying that it would compel its members
to support strikes at other plants by imposing fines upon them. About
December 1, 1940, Foreman Eli Beckerman approached Anna Haas
at her machine and asked whether she had received a pamphlet which
Shada, the union organizer, distributed at a gathering the night
before.8 On receiving a negative reply, he alluded to an election for
union officers that had recently been held, saving * * that last
fellow, he just filled his pockets and now * * * another fellow
has got his place and he will fill his pockets at the expense of the
poor."
In the latter part of October 1940, Foreman Eli Beckerman asked
another employee, Elsie M. - Zuber, to- see him after working hours.
When she reported to him, he told her that he heard that Anna Haas
was "signing up people in the Union." After making this statement,
he asked Zuber to "talk some sense into Anna Haas' head," adding,
"before Beckerman spends any money he will move out of town." The
findings as to Eli Beckerman's anti-union remarks are based upon the
testimony of Anna Haas and Elsie M. Zuber. Eli Beckerman did not
specifically deny the statements attributed to him by-these witnesses;
when asked whether he had advised another employee not to join the
Union, he did, however, deny in general terms that he had ever dis-
cussed joining the Union with anyone. The Trial Examiner did not
credit his denial, nor do we.
In October 1940, Superintendent Degen told Howard H. Schlegel,-
another employee, that he heard Schlegel was a union member and
that union meetings were being held at his home. Schlegel assured
Degeri that he was not a union member and said that he was not even
thinking of joining the Union. In-November 1940, however, Schlegel
attended a union meeting. When he came to work the next morning,
Sam Beckerman, his foreman, remarked : "Well, I heard you were at
a union meeting last night." Schlegel admitted that this report was
correct,. whereupon Sam Beckerman asked Schlegel who attended the
union meeting and what took place. In answer to this question
Schlegel said that in addition to Elsie Zuber and Arlene.Adams,.who
accompanied, him to the meeting, only a few employees, including the
Azars, were present, and that no business was transacted because of
the poor attendance; . Superintendent Degeli also questioned- Schlegel
8'The question eliciting the testimony concerning this conversation refers to Louis Instead
of Eli Beckerman ; but the context indicates that Eli Beckerman was intended.
442 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
that morning about the union meeting and was told in substance what
Sam Beckerman had been told.9
Lee G. Bryant, an employee who, we later find, was discriminatorily
discharged, joined the Union in October 1940 and solicited his fellow
workers to join. Soon after he became a union member, Superintend-
ent Degen chided him for his union activity. Degen administered this
reproof when Bryant was putting,shoes on a rack, to which a, ticket
was affixed indicating that the shoes were destined for future delivery.-
Ad verting to the ticket, Degen said to Bryant: ". . . Mr. Beckerman
has got to pay you fellows now and wait all this time until that very
date you see there before he really gets his money and still you want
to go and pull the dirt .. . is that the thing to do?" We agree with
the Trial Examiner that Bryant was justified in inferring that Degen's
remark was levelled at Bryant's union activity. Early in November
1940, Degen, referring to a union meeting which had taken place the
night before, asked Bryant : "How was the beer and pretzels?" When
Bryant professed not to understand his question, Degen remarked :
"Well, you know what I mean, . . . that [the Union] doesn't get•you
any place; it will only mean a couple of cents more, and it won't get
you any place at all." Degen testified that he did not know that
Bryant was a union member; he did not, however, directly deny having
made the anti-union statements attributed to him by Bryant. We
find, as did the Trial Examiner, that he made those statements.
• We find, as did the Trial Examiner, that by its course of conduct
in warning its employees not to join the Union and not to solicit others
to join, in urging them to give up their'union membership,,in threaten-
ing them with the loss of their employment if the Union succeeded in
organizing the Kutztown plant, in threatening to close or remove the
plant rather than tolerate a union, in inciting the Azars to attack
Shada, the union organizer, in order to prevent his distributing leaflets
among its employees, in making derogatory remarks about the union
leaders, in questioning employees about their union membership and
the identity of those attending union meetings and about the busi-
ness done at such meetings, the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. Discriminatory discharges
Albert and Subrey Azar. Albert Azar was employed by the respond-
ent in December 1935; Subrey Azar, his cousin, entered its employ in
October 1936. They were both working foremen; that is, in addition
to their duties as supervisors, at times they did ordinary production
9 The findings in this paragraph are based upon Schlegel 's testimony , which was not
directly controverted.
BECKERVIAN SHOE CORPORATION' OF KUTZTOWN . 443
work. - Their employment terminated under like circumstances on
October 22, 1940.
In his Intermediate Report, dated August 16 , 1941 , the Trial Exam-
iner found that the Azars had been- discriminatorily discharged and
that the refusal to reinstate them was likewise discriminatory. In so
finding the Trial Examiner rejected the contention that the Azars had
quit voluntarily . The Azars ' testimony concerning their discharge
was corroborated by Charles Haddad, another working foreman, who,
the Trial Examiner found , had also been discharged discriminatorily.
At the supplemental hearing, Charles Haddad testified , in effect, that
subsequent to the first hearing he informed Max Beckerman and cer-
tain other persons that the'Azars and lie had quit voluntarily . Haddad
declined on constitutional grounds, however , to say whether his testi-
mony at the first hearing, or the aforesaid statement was true. Find-
ing that Haddad had made the recanting statement , the Trial Exam-
iner 'recommended in the Supplemental Intermediate Report that the
complaint be dismissed not only as to Haddad but also as to the Azars.
We have examined the evidence which Haddad gave at both hearings
and are convinced that none of his testimony can be relied upon. We
are convinced further that he has no regard for the truth or the sanc-
tity of an oath. In view of his lack of integrity we do not think that
his reinstatement would effectuate the policies of the Act. Accord-
ingly, we shall dismiss the complaint as to him . 10 We are constrained,
however, to reject the Trial Examiner 's recommendation that the com-
plaint be dismissed as to the Azars since we believe them to be trust-
worthy witnesses . We shall now briefly set forth the facts which
impel us to this conclusion."
As, we have heretofore noted, the Azars joined the Union in the
early stages of its membership campaign and solicited other employees
to join. While the union campaign was under way, the employees in
Albert Azar 's department stopped work in furtherance of- their de-
mand for a wage increase , and, as has been noted , their militancy was
attributed by Max Beckerman to Albert Azar . Most of the coercive
measures which the respondent employed to prevent its workers from
becoming or remaining members of the Union occurred before October
22, 1940, when the Azars were discharged . 12 Indeed, the most striking
of these measures, namely Superintendent Degen's instruction that
the Azars attack the union organizer occurred - on October 21, -the day
preceding their dismissal . These facts Which clearly reveal the
10 Cf The Cudahy Packing Co. v. National Labor Relations Board, 116 F. (2d) 367
(C. C. A. 8), order on petition to vacate the enforcement decree.
11 We have given no weight to Charles ITaddad's testimony in determining the issues re-
lating to the discharge of the Azars because we believe Charles'Haddad to be a wholly
unreliable witness
11 See Subsection A, supra
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's deep-seated opposition to the Union. are the setting in
which conflicting evidence as to the circumstances attending the dis-
charge of the Azars must be viewed.
The Azars' version of their discharge was in substance as-follows:
On October 22, 1940, shortly before noon President Max Beckerman
asked Albert Azar, who was then working at his machine, to come to
his office with Subrey Azar and Charles Haddad, saying that he wanted
to confer with them. When the three men entered the inner office,
they found Max Beckerman there alone. Beckerman directed one of
them to close the door, and then upbraided the Azars for having
refused to attack Shada, the union organizer. Albert Azar replied
that they were "not going to do that dirty work any more," because,
he said, they had been prosecuted in 1937 for that very misconduct.
Beckerman's rejoinder, according to Albert Azar, was: "What is the
matter with youse guys, are you working for the Union? Well, get
the hell out of here; you can't work for the Union and for me too; you
are nothing but trouble makers; you can't serve two masters." Hear-
ing this, the Azars left Beckerman's office, believing that they had been
discharged 13
Max Beckerman's version of the incident was in substance as fol-
lows : He testified that he arrived at the Kutztown plant shortly before
noon that day; that the Azars and Haddad were already in the outer
office when he arrived; that he invited them into his inner office,
whereupon one of them announced that they had decided to quit, say-
ing, according to Beckerman, "Your superintendent is watching me
[sic]"; that he expostulated that he did not understand why they were
quitting but that the men "would not give any explanation at all";
that he told them their. employment contracts required them to give
30 days' notice of an intention to quit, but that they simply repeated
that "they didn't want to work any more in [his] place." Beckerman
opened the door, he said, on hearing this, and told the men , "goodbye,
and we quit." Several witnesses called by the respondent testified
that the Azars had either voiced an intention of quitting or had ad-
mitted, subsequent to their dismissal, that they had quit. The Azars
denied the statements attributed to them by these witnesses. We are
i8 On October 23, 1940, the day following their discharge, the Azars and Haddad filed
claims for benefits under the Unemployment Compensation Act of the Commonwealth of
Pennsylvania . The respondent , in resisting their claims , contended that the men had quit
voluntarily , and had not been discharged . On December 23, 1940, a hearing was had be-
fore a Referee of the Division of Unemployment Compensation , in ixhich the Azars and
Haddad , as well as other witnesses , were examined . The employees received compensation,
since the issue was resolved in their favor. A transcript of the testimony in the Unem-
ployment Compensation hearing was introduced in evidence before the Trial Examiner
with the consent of the respondent. ,In resolving the conflict in testimony, we, as^did the
Trial Examiner , considered the testimony which the Azars gave at the Unemployment
Compensation hearing. In its brief to the Trial Examiner ( p. 2), the respondent expressly
suggested that this testimony be considered.
BECKEMIIAN SHOE CORPORATION OF KUT'ZTOWN 445
,unable to credit the respondent's version of the October 22 occurrence.
Itappears to us highly improbable that employees who had spent years
in the service of an employer should abruptly announce an intention
to quit, without first voicing their grievance in terms comprehensible
to their employer. Furthermore, it is difficult to believe that- these
employees should quit at a time when, as the credible- evidence shows,
they had no other employment.'' It is also not' without significance
that they filed claims for unemployment compensation on the day
following their discharge. We do not believe that the Azars quit their
employment voluntarily. We are convinced,. rather, and find, that
Max Beckerman discharged them on October 22, 1940, because of their
,unwillingness to assist the respondent in combatting the Union.15
=Moreover, the circumstances attending the respondent's refusal to
reemploy the Azars lend support to the conclusion that they had not
quit voluntarily. On October 25, 1940, President Max Beckerman
sent letters to the Azars enclosing checks for the balance of the wages
due them, in which he stated : "I was hoping that you would change
your mind about quitting and in fact I even waited around Kutztown
for the entire day, expecting you to tell-me that you intend to remain
with us." Oil October 29, Max Beckerman agreed to meet the Azars
and Haddad, at their request, but deliberately failed to keep the
appointment. When Beckerman failed to appear, the Azars' replied
to the above letter, denying that they had quit and stating that their
discharge violated their employment contracts.
The respondent's attorneys answered these letters, saying that Max
Beckerman would meet the Azars and Haddad on November 6, 1940.
Accompanied • by an attorney, the Azars kept this appointment. At
the outset of this conference, the attorney for the Azars informed
Max Beckerman that the Azars desired to return to work but Beck-
erman refused to consider the question of their reinstatement, saying
that their jobs had already been filled. There is no evidence, how-
ever, to support Beckerman's-assertion that their jobs had in fact been
filled at this time; he had-been told, moreover, according to the uncon-
tradicted testimony of Albert Azar, on October 29, when Albert Azar
arranged the appointment that Beckerman failed to keep, that the
appointment was desired for the purpose of "straighten[ ing] things
out," so that the men could "go back -to work." At the November 6
14 We are unable to believe the testimony of Robert E. Gallagher that Albert Azar
expressed a desire to go into business for himself. -
15That the Azars were working foremen does not, of course, deprive them of the Act's
protection See Matter of Golden Turkey hlinany Company and International Union of
Mine, Mill, and Smelter Workers, Local No. 410, 34 N L R B 760. See also Matter of
Eagle-Picher Mining it Smelting Corp. and Eagle-Picher Lead Company, a corporation, and
International Union of Mine, Mill and Smeller Workers , Locals Nos. 15, 17, 107, 105, and
111, 16 N L R. B 727, enforced in Eagle-Picher Mining it Smelting Co v National Labor
Relations Board, 119 F (2d) 903 (C. C. A 8).
446 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
conference Beckerman's attorney urged him to talk things over; Beck-
erman's reply was : "The only time I talk is in court." The conference
ended at this point. ^ We are" unable to believe that the respondent
had replaced these men, either on October.. 29 or on November 6, 1940.
We find that the respondent refused to reemploy them on November 6,
1940, because Max Beckerman resented their unwillingness to assist
him in combatting the Union.
As has been noted, the Trial Examiner found in his original Inter-
mediate Report that the Azars had been -discriminatorily discharged.
In so finding, the Trial Examiner rejected. Beckerman's version of
what occurred. The Trial Examiner came to this conclusion after
finding that Beckerman's explanation for the discharge of the Azars
was implausible, and that the Azars' testimony concerning their dis-
charge was persuasively confirmed by Beckerman's refusal to rehire
them as well as by otherocircumstances. The only significant fact
developed at the supplemental hearing was Haddad's admission that
he made the extrajudicial recanting statement attributed to him. On
that alone, so far as we know, since the Supplemental Intermediate
Report contains no other explanation, the Trial Examiner recom-
mended. a dismissal of the complaint not only as to Haddad but also
as to the_Azars. We do not think that Haddad's extrajudicial recant-
ing statement should be given such weight as to override the convincing
testimony of the Azars, especially in view of the patent implausibility
of Beckerman's explanation for the termination of their employment.
We find that by discharging and refusing to reemploy Albert Azar
and Subrey Azar, the respondent has discriminated in regard to their
hire and tenure of employment, thereby discouraging membership in
the Union, and interfering with, restraining , and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
Lee G. Bryant. Bryant was discharged by 'Superintendent Degen
on December 17, 1940, after being in the respondent's employ for about
9 months. The respondent asserted that it discharged him because of
unsatisfactory work and because he sold "policy slips" 16 and obscene
-photographs-in the plant.
Bryant,joined the Union in October 1940 and persuaded other em-
ployees to join. As has been noted, Superintendent Degen reproved
Bryant for joining-the Union and later told him that his union mem-
bership would get him nowhere .17
Bryant was first employed as a "bottom finisher"; he was later
assigned work. described in the record as "pressing joints." On De-
cember 16, 1940, Superintendent Degen told Bryant that he would be
I
16 These are participations in a method of gambling in which the holder of the "policy
slips" bets that certain numbers will be drawn in a lottery See New Standard Dictionary
of the English Language, Funk and Wagnalls, p 1918.
11 See Subsection A, supra.
BECKERMAN SHOE' CORPORATION OF KUTZTOWN 447
transferred to the cutting department. Such a transfer was desirable
from Bryant's point of view since a cutter -earns more than a joint
presser. , Foreman Samuel Beckerman, who was in charge of the cut-
ting department, testified that "to be a real cutter" one would have to
spend years at the trade. Nevertheless, after Bryant had worked in
the cutting department for only a day and a half, Foreman Samuel
Beckerman instructed Bryant to return to his former job, saying that
he would never become a competent cutter. Bryant reported this to
Superintendent Degen and asked to be restored to his former job.
But Degen turned down Bryant's request, saying that he had "talk[ed]
too much." Degen added that Bryant would be put to work in the
bottom finishing department. Hearing this, Bryant expostulated :
"this is demoting a guy right back to the very beginning of things . .."
Bryant also pointed-out to Degen that he could not earn a living in
the bottom finishing department since he would have only about 3
days' work a week. But his protest was unavailing; Degen gave him
the alternative of working in the bottom finishing department or
being discharged. Faced with this ultimatum, Bryant 'said nothing
further. -
After Bryant left Degen, he met Eli Beckerman, a son of Max
Beckerman, and one of the foremen, and voiced his grievance to them.
Later in the day, after Bryant had begun to work in the bottom finish-
ing department, Superintendent Degen entered the department, where-
upon Bryant renewed his request to be restored to his former job.
Remarking that -Bryant had "a silvery tongue," Degen said in reply
to Bryant's entreaty : "Just for talking like that, * * * I have a
Christmas . present for you." After making this statement, Degen
'discharged Bryant.
The findings set forth above -accord with Bryant's' 'testimony.
Degen gave a different account of Bryant's discharge. Degen
testified that Bryant appeared to be dissatisfied on being- as-
signed to the bottom finishing department; that Bryant was talking
instead of working when he (Degen) entered the department; that
when he came into the department an employee named Ritter told him
that Bryant was trying to sell him lottery tickets and was keeping him
frpm his work ; that he thereupon reprimanded Bryant, saying that
Bryant should not work at all if he was unwilling to work "with a
proper feeling." Bryant's rejoinder, according to Degen was: "I
can go out with the slot machines and writing [sic] policy tickets and
make better money." "So," continued Degen, "I took the man up in
the office and paid him off." Ritter, who testified as a witness for
the respondent, said that Bryant had attempted to sell him a policy
`slip on only one occasion; that he did not report the incident to his
foreman, and gave it no thought until Superintendent- Degen ques'
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioned him about it. But, Ritter testified, Degen questioned him about
Bryant some 2 months after Bryant had been discharged. " This was
directly contrary to Degen's testimony that Ritter had complained to
him about Bryant on the day that Bryant was discharged; that, in
fact, it was Ritter's complaint which precipitated the discharge.
Noting this discrepancy, the Trial Examiner rejected Degen's ver-
sion of the discharge. We, too, are unable to ,accept Degen's version
of the occurrence. We find, as did the Trial Examiner, that Bryant's
testimony correctly described his discharge and the events leading to
his discharge.
Apart from Degen's uncorroborated assertion that Bryant was slow
and Bryant's brief experience in the cutting department, there is no
evidence that his work had been unsatisfactory. We are satisfied, as
was the Trial Examiner, that Bryant was not dismissed for that
reason.
Nor do we believe that Bryant was discharged for selling policy
slips or indecent photographs. Degen, it is true, testified that he had
cautioned Bryant regarding those matters, but admitted at the hear-
ing that the admonition was delivered about 6 months prior to
Bryant's discharge. Eli Beckerman testifiedrthat he himself `bought
policy slips from Bryant but he placed the most recent purchase at
5-to 6 months prior to Bryant's discharge. • Ritter testified that
Bryant attempted to sell him obscene photographs; but, he said, this
occurred about 3 months prior to Bryant's dismissal and was never
mentioned by him to anyone until Degen questioned him about 2
months after Bryant was discharged. It is apparent, and we find,
as did the Trial Examiner, that the resurrection of these incidents was
an attempt to justify Bryant's discharge in retrospect, and that they
did not motivate his dismissal.
On May 8, 1941, the complaint in this proceeding was issued.
President Max Beckerman thereafter sent for Bryant and offered him
reinstatement on condition that he sign a document agreeing that he
would 'not again sell policy slips in the plant and would be subject to
discharge if he violated that undertaking. Although at first Bryant
was unwilling to sign the document, protesting that he had never sold
policy slips, he yielded to Beckerman's demand because of his neces-
sitous circumstances. This incident confirms us in the conviction, 'as
it:did the Trial Examiner, that the respondent tried to construct a case
against Bryant in order to conceal the discriminatory motive for his
discharge.
We find, as did the Trial Examiner, that the respondent discharged
Lee G. Bryant because of his union membership and activity. We
find, further, that by discharging Bryant, the respondent has discrim-
inated in regard to his hire and tenure of employment, thereby dis-
couraging membership in the Union, and interfering with, restraining,
BECKERMAN SHOE CORPORATION OF KUTZTOWN" 449
and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Anna Haas, Howard H. ,Schlegel. In his Intermediate Report,
dated August 16, 1941, the Trial Examiner found that the respondent
did'- not -discriminatorily discharge Anna, Haas and Howard H. .
Schlegel; he accordingly recommended, that the complaint be dis-
missed as-to them. The Union filed.no exceptions to the Intermediate
Report.- We' have nevertheless 'examined the record with respect to
these employees and agree with the Trial Examiner's findings. We
shall 'accordingly dismiss the complaint as to them.
'. ,
IV. THE EFFECT OF THE UNFAIR,LABOR PRACTICES UPON COMMERCE;
The activities -of-the respondent set forth in Section III 'above,
occurring in colinection 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 that it
take certain affirmative action which will effectuate the policies of the
Act.
We have found that the respondent has discriminated in regard to
the hire and tenure of employment of Albert Azar, Subrey Azar, and
Lee G. Bryant. We shall direct the respondent to reinstate the Azars
to their former positions, without prejudice to their seniority and
other rights and privileges."
We shall also order the respondent to make whole Albert Azar and
Subrey Azar for any loss of pay they have suffered by,reason of the
respondent's discrimination against them by payment to each of them
of a sum of money equal to the amount which he normally would have
earned as wages from the date of his-discharge, to November.24, 1941,
the date of the Supplemental Intermediate Report and from the date
of this Decision and Order to the date of the respondent's offer of rein-
statement, less his net earnings- 19 during such period. We have" ex-
is Bryant, as has been noted, was reinstated prior to the hearing
19 By "net earnings" is meant earnings less expenses such as transportation, room, and
board incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking eniplovment elsewhere. See Matter of Crossett -
Lumber Compaaiy and United Brotherhood of Carpenters and Joiners of America, Lumber
and Sawmill Workers Union, Local 2590, S N. L. R. B 440. Monies received for work per-
formed upon Federal, State, county, municipal, and other work-relief projects shall be
considered as earnings See Republic Steel Corporation v. National Labor Relations Board,
311 U. S. 7.
4S1039--42-vol 43-29
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluded from the period during which back pay is'awarded the Azars
the period that the Trial Examiner's Supplemental Intermediate Re-
port was outstanding, since during that period the respondent could
not have been expected to reinstate, them.
` We find no merit in the respondent's contention that reinstatement,
and`remedial pay should be denied these men because of releases which
they executed subsequent to their discharge. We have affirmed the
ruling of' the' Trial Examiner which excluded these releases from evi-
dence.. In the 'exeicise of our administrative discretion, we have
determined that private-settlements should not stay us from vindicat-
ing the policies of the Act by remedying unfair labor practices involved
in the discriminatory discharge of employees.20 This is not to say
that in determining how much back pay is due these employees, the
respondent may not be entitled to credit for part of the sums paid for
the releases. Whether or not it should receive such credit is a question
that, concerns compliance with our order, not its propriety.21
,,r We;shall also order the respondent to make Lee G. Bryant whole for
any loss of pay he has suffered by reason of the respondent's discrim-
ination against him by payment to him of a sum of money equal to the
amount which he normally would have earned as wages from the date
'of hi"s discharge to. the date of his reinstatement, less his net earnings
The respondent's entire course of conduct, including its many and
varied forms of interference, restraint, and coercion and its discrim-
inatory discharges discloses a fixed purpose on its part to defeat self-
organization and its objects., Because of the respondent's unlawful
conduct•in the past and its underlying purpose we are convinced that
tliere is it danger in the future of the respondent's engaging in other
related unfair labor practices prpsiribed by the Act. The preventive
purpose of the Act will be thwarted unless'our order is coextensive
with the threat. In order, therefore, to make effective the interde-
pendent guarantees of Section 7, to prevent a recurrence of unfair
n That we have such discretion is a corollary from the exclusive authority to prevent
unfair labor practices which, the Act confers upon its (Section 10 (a)). Conformably with
this view it has been held that only the Board can compromise an award of back pay made
to a`wrongfully discharged employee ( National Labor Relations Board v. American Potash
& Chemical Co, 113 F. (2dj 232 (C. C. A. 9) ; further, that only the Board has the right
to` institute proceedings to punish an employer for contempt of a court decree enforcing a
Board order ( Amalgamated Utility ' ltorkers v. Consolidated Edison Co, 309 U S 261,
269-270 ). See also National Labor Relations Board v. William H. Killoren, Trustee, 122 F.
(2d) 609, 612 (C C A 8), cert denied 314, U. S 696
n In determining that question it will be necessary to ascertain whether or not the con-
sideration paid for the releases was intended to make reparation for the wage loss suffered
by these men as the result of their discriminator y discharge ; or, whether, as the recitals in
the releases and their terms seem to indicate , the releases ,were intended solely to bar claims
arising out of the respondent ' s alleged violation of the Fair Labor ' Standards Act and its
asserted breach of the employment contracts which it had entered into with these employees.
Only so much of the consideration paid as was intended to reimburse the employees for the
wage loss they suffered - by reason of their wrongful discharge may be credited to the
respondent on account of its back -pay liability hereunder
BECKERMAN SHOE CORPORATION OF KTTT'ZTOWN 451
labor practices, and thereby to minimize strife which burdens and'
obstructs commerce, and thus to effectuate the policies of the Act, we
shall order the respondent to cease and desist from in any manner
infringing the rights- guaranteed in'Section 7 of the Act.'
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, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire andtenure of employment
of Albert .Azar,, Subrey Azar, and, Lee G. Bryant, and thereby dis-
couraging 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.'
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent did not discriminate in regard to the hire and
tenure of employment of Charles Haddad, Anna Haas , and Howard
H. Schlegel, within the meaning of Section 8 (3) of the 'Act. °
ORDER
- Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,,the
National Labor Relations Board hereby orders that the-respondent,
Beckerman Shoe Corporation of Kutztown, Kutztown, Pennsylvania;
and its officers, agents, successors,'and assigns shall: V' -
1. Cease and desist from : : _ - -
(a) Discouraging membership in United Shoe Workers of America,
or any other labor organization of its employees, by- discharging or.
refusing to reinstate any of its employees, or in any other manner
discriminating in regard to their hire and tenure of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or to engage -in concerted activ-
ities for the purpose of collective bargaining and other mutual aid or
452 DECISIONS OF NATIONAL LABOR,RELATIONS BOARD
protection as guaranteed in Section 7 of the National Labor Relations
Act.
2. Take, the following affirmative action which the Board finds
will effectuate the policies of,the Act:
(a). Offer to Albert Azar and Subrey Azar immediate and full
reinstatement to their former positions, without, prejudice to their
seniority and other rights and privileges;
(b) Make whole Albert.Azar and Subrey Azar for any loss of pay
they have suffered by reason,of the respondent's discrimination against
them by payment'to each of them of a sum of money equal to that
which he normally would have earned' as wages from October 22, 1940,
the date of his discharge, to November 24, 1941, the date of the Supple-
mental Intermediate Report, and from the date of this Decision and
Order to the date of 'the respondent's offer of reinstatement; less his
net earnings during said periods; .
(c) Make whole Lee G. Bryant for any loss of pay he has suffered
by reason of the respondent's, discrimination against him by payment
to him of a sum *of money equal to that which he normally would have
earned as wages from December 17, 1940, the date 'of his discharge, to
the date of his reinstatement, less his net earnings during that period ;
(d) Post immediately in conspicuous places throughout the re-
spondent's plant and'maintain for a,period of at least sixty ( 60) con-
secutive days notices to its employees, stating: (1) that the respond-
ent will not engage in the conduct from which it has been ordered to
cease and desist in paragraphs 1 (a) and (b) ; (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, affiliated with
the Congress,of Industrial Organikations, and that 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 Anna Haas, Howard H. Schlegel, and Charles Haddad. be,
and they hereby are, dismissed.