Brezner Tanning Co., Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1943

50 N.L.R.B. 894 (N.L.R.B. 1943)

I
In the Matter of BREZNER TANNING CO., INC. and INTERNATIONAL FUR
& LEATHER WORKERS UNION OF THE UNITED STATES AND CANADA,'-'
LEATHER WORKERS DIVISION (C. I. 0.)
Case No. C-2578.-Decided June 29, 1943,
DECISION
AND
ORDER
On April 7, 1943, the Trial Examiner issued his Intermediate Re-
port'in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and
that it had not engaged in certain other unfair labor practices, and
recommending that it cease and desist from the unfair labor practices
found and take certain affirmative action, as set out in the copy of the
Intermediate Report attached hereto, and that the complaint be dis-
missed as to'the remaining allegations. Thereafter the respondent
filed exceptions to the Intermediate Report and a brief in support of
the exceptions. Oral argument, in -which the respondent and the
Union participated, was had before the Board on June 15, 1943. The
Board has considered the rulings of the Trial Examiner at the hearing
,and finds that no prejudicial errors were committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Re-
port, the respondent's brief and exceptions, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the exceptions and qualifications.
noted below :
1. The Trial Examiner found, on the basis of Nutting's admitted
knowledge of the union membership of. other employees in his de-
partment and from all the relevant evidence, that Nutting knew of
Messer's union membership. We concur in this finding for, the addi-
tional reason that it can reasonably be inferred from the fact that
Messer worked in a small department of only 12 employees that in-
formation as to her union activities came to the notice of Nutting,
her foreman.'
2. The Trial Examiner found without merit the respondent's con-
tention that Messer was discharged for inefficient work during her
4-week "probationary" period. We concur in this finding. More-
1 See N. L. R. B. V. Abbott Worsted Mills, Inc, 127 F . ( 2d) 438 , 440 (C. C. A. 1).
50 N. L. R. B., No. 131.
894
I
BREZNER TANNING CO., INC. , ' 895
over, we regard as significant the fact that Messer was precipitately
discharged not only on the day before the close of the regular weekly
pay-roll period but also more than 1 week before the expiration of,
the "probationary" period. The fact that there was a great turn-over
among-employees and the numerous employees left their employment
during the 4-week "probationary" period, is of no significance in view
of the absence of any proof that such employees were, in fact, dis-
charged. In any event, we are convinced and we find that the re-
spondent's evident haste in discharging. Messer, which resulted in her
being denied the full measure of opportunity to demonstrate her
worth, is further proof of the respondent's discriminatory motive.
3. The Trial Examiner found, and we agree, that on October 20,
1942, Messer applied for and failed to obtain employment at the
respondent's plant but was told by the respondent's president, Snider,
that she would be apprised of any future vacancies. It is apparent
from the record that vacancies did thereafter occur in the shipping
department, that Messer was not informed thereof, and that inex-
perienced employees were hired in those positions. - It is to be noted
also that the respondent offered no'reason for its, failure to fulfill its
promise to recall Messer. Under the circumstances, we are of the
opinion that the failure to recall Messer, an employee with some experi-
ence, while others were newly employed on the sam wark, was dis-
criminatory. Accordingly, we find that the respondentdent refused to
recall Messer after October 20, 1942 because of her union membership
and activity?
4. The Trial Examiner recommended that,the respondent be ordered
to offer Grace Messer immediate and full. reinstatement to her former
or substantially equivalent position,, without prejudice to her seniority
and- other, rights' and privileges. •The respondent contends, however,
that this recommendation is unwarranted in view, of the stipulation by
the parties that Messer obtained substantially equivalent employment
on November 11, 1942, some 3 weeks after, her discharge. . Under the
circumstances, of the case, we find that, irrespective of the evidence of
obtainment of substantially equiv,,lent,employment, it will effectuate
the policies of the Act to require the respondent to, ofer reinstatement
to Grace Messer: -
ORDER-,,
Upon the,entire record in the;.case, and,pursuant,to Section 10 (c)
of the National' Labor, Relations Act', the National Labor Relations
Board hereby orders that the respondent, Brezner Tanning Co., Inc.,
s There is no merit to'the respondent 's ,further'contention that direct evidence of the effect
of anti-union ' conduct by supervisory employees and ofral discriminatory discharge , in inter-
fering with , restraining, and coercing employees and discouraging their membership in a
labor organization, is necessary before a findirig:of unfair labor practices may be made.
See our discussion in Matter of Pacific Lumber ' Connpany , 49 N. L. R. B. 1145.
896 IXiOrSIONS OF -NTATIONAL LABOR RELATIONS BOARD
I
Concord, New Hampshire, its- officers, agents, successors, and assigns
shall :
1. Cease and desist from :
'(a) Discouraging membership in International Fur '&, Leather
Workers' Union of the United States and Canada, Leather Workers
Division; affiliated with the Congress of Industrial Organizations, or
any other labor organization of its employees, by discriminating in
regard to hire or tenure of employment, or any term, or, condition 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, and 'to engage in -concerted
activities 'for the purposes of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the National Labor Rela-
tions Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act;
(a) Offer to Grace Messer immediate and full reinstatement' to her
former or substantially equivalent position, without prejudice 'to :her
seniority and other rights and privileges;
(b) Make whole said Grace Messer,for any loss of ,pay she ,may
have suffered by reason of the respondent's discrimination against =her
by payment to her of a sum of money equal to the amount she normally
would have earned as wages during the period from the date of Cher
discharge to the date of the respondent's offer of 'reinstatement, less
her net earnings during'such period;
(c) 'Post immediately in conspicuous places throughout its -plant
at Concord, New Hampshire '(also bearing address of Penacook, New
Hampshire) and maintain for a period of'at least•sixty (60) consecu-
tive dais,,no'tices 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) and (b) of his'Order; ('2) that 'the respondent
will take the affirmative action set forth in. paragraphs 2 •(a) and '(b)
of this Order; and (3) that' the' respondent's employees, are'free'to
become and remain members of International Fur & Leather Workers
Union of the United States and Canada, Leather Workers Division,
affiliated with the Congress of Industrial Organizations, or any other
labor organization of its employees, and that the respondent will' not
discriminate against any employee because of his membership iii or
activity on'behalf of that organization or any other labor organization;
(d) Notify the Regional Director for the First Region in writing
within ten (10) days from the date,of the ,receipt of this ,Order what
steps the respondent has taken to comply herewith.
IT IS FURTHER ORDERED',that the complaint, insofar as it :alleges ,that
BREZNER TANNING CO., INC. 89,7
the ` respondent has engaged in unfair labor practices; within the
meaning of Section 8 (5) of the Act, be, and it hereby is, dismissed.
MR. GERARD D. RE1ixx took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Robert E Greene, for the Board.
Mr. Ralph M. Goldstein and Mr. Murray Brown, of Boston, Mass., for the
respondent.
Grant and Angoff, by Mr. Frederick Cohen, of Boston, Mass., for the Union.
STATEMENT OF THE CASE
Upon a third-amended charge duly filed on December 17, 1942, by International
Fur & Leather Workers Union of the United States and Canada, Leather Workers
Division (C. I. 0.), herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the First Region (Boston,
Massachusetts ), issued its complaint dated January 19, 1943, against Brezner
Tanning Co, Inc., Concord, New Hampshire, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within thelmeaning 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 together with notice of hearing
thereon were duly served upon the respondent and the, Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) from on or about June 29, 1942, by named supervisory
employees, questioned its employees respecting their union membership and
activity, threatened them with reduction of work and worsened working condi-
tions if the Union organized the plant, attended a union meeting, and encour-
aged employees to resign from the Union; (2) on or about October 13, 1942,
discharged and thereafter refused to reinstate Grace Messer because of her
union membership and activity; (3) on or about October 16., 1942, and at all
times thereafter refused to bargain collectively with the Union which was at
all,such times the exclusive representative of the employees of the respondent
within an appropriate unit; and (4) by such acts interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in-Section 7
of the Act. I
Pursuant to notice , a hearing was held at Concord, New Hampshire,, from
February 4, through 10, 1943, before the undersigned Josef L. Hektoen, the
Trial Examiner duly designated by the Chief Trial Examiner. The Board, the
respondent; and- the Union were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross -examine wit-
nesses, and to introduce evidence bearing on the issues was afforded all parties.
At the opening of the hearing, the respondent, having previously, filed its written
motion for a bill of particulars of the complaint and the motion having been
referred to the undersigned by the Regional Director, the undersigned ,.allowed
the motion in part. On the same day, counsel for the Board furnished to counsel
for the respondent the requested particulars in conformity to the ruling of the
undersigned. The respondent thereupon filed its answer admitting the allega-'
tions of the complaint with respect to its business and denying the commission
of any unfair labor practices. At the close of the hearing the motion of, counsel
for the Board to conform the pleadings to the proof in formal matters was
898 DIEICTSION)S OF NAfrIONAL LABOR.' RELATIONS' BOARD
allowed by the undersigned without objection ' and. ruling oh, the motion of
counsel for the respondent to dismiss the complaint was reserved by him ; it is
now, except as otherwise indicated herein, denied. The parties'argued orally
before the undersigned and were extended the opportunity to file briefs- with
him ; no briefs have been received.
Upon the record thus made, and from his observation of the witnesses, the
undersigned makes the following':
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Brezner Tanning Co., Inc., a New Hampshire corporation
engaged at Concord, New Hampshire, in the manufacture, sale, and distribution
of finished leather. The principal raw materials used by it are chemicals and
supplies. During the period January 22 to September 18, 1942, it purchased
such supplies in the amount of^$28,172.98, about 90 percent thereof being shipped
to it from points outside the State of New Hampshire. During the same period
it manufactured approximately 1,245,000 square feet of finished leather, all of
which was shipped by it to points outside the State of New Hampshire. The
respondent admits that it is engaged in commerce, within the meaning of the Act.
I
IT. THE ORGANIZATION INVOLVED
International Fur & Leather Workers Union of the United States and Canada,
Leather Workers Division, is a labor organization affiliated with the Congress
of Industrial Organizations. It admits production and maintenance employees
of the respondent to membership.
M. THE UNFAIR LABOR PRACTICES
I
A. Interference, restraint, and coercion
The respondent was organized in January 1942, and at that time took over
an abandoned Concord spinning mill which it converted into a tannery. The
tannery' began operations about April 15, 1942. Clyde Fairbanks, prominent in
local community affairs and widely acquainted in the Concord area, acted as em-
ployment manager during the conversion period and continued as such for about
6 months thereafter' The respondent employed local residents, inexperienced in
tannery work, the employment turn-over among whom was very great.'
The Union began its organizational drive at the plant about July 1, 1942, when
it began distributing literature, and conducting meetings. The respondent, as
revealed by the evidence, was at all times aware of the Union's campaign.
During July, while employees Ernest Fletcher,'Leon Garland, Leon Miller, and,
others, were discussing the Union and eating lunch adjacent to the plant, Foremen
Victor Poltack and Max Swartz appeared on a platform behind them. According
to the undenied testimony of Fletcher, -which the undersigned credits, either
Poltack or Swartz stated, "If you know where you boys are well off, you will
keep out of it."' The undersigned, from all the circumstances revealed by the
record, concludes and finds that the speaker referred to the Union.
1 He was succeeded by Jack Abrams, the respondent's "clerk of the corporation" and
sou-in-law of Nathan Brezner, operating head of the respondent:
-2 During the 42-week period after the plant began operations, 752 persons were hired
and 576'ceased employment with the respondent. The average weekly payroll during the
period was approximately 150.
a Poltack , who was foreman of the staking department at the time of the hearing, was
not called as a witness. Swartz was no longer employed by the respondent . He'did 'not
testify.
BREZNER TANNING CO., INC. 899
At about the same time ,, Melvin Snider, president of the responde It ,° ^accoiding
to employee Fletcher ,' asked how the "boys " were "making out with the Union"'
and in the same or a later conversation , if there had been a large attendance a't'
a' union meeting held shortly before. Snider denied inquiring of Fletcher 'about'
the Union and explained that he had frequently asked Fletcher , who had for a
time after the conversations related above been a foreman , how the work in his
department was progressing . The undersigned , from all of the relevant evidence,
however, and because he was favorably impressed by Fletcher as a witness, finds
that Snider , on the occasions in question , spoke to him as Fletcher testified.
At about the same time in July, according to the testimony of employee Helen
Spooner, Foreman George Nutting , of the shipping department , asked her if a
union meeting of the night before had been generously attended . Spooner, al-
though she had been present at the meeting , answered that she did not know s
'Nutting denied questioning her about the meeting . The undersigned , in view of
the circumstances revealed by the record , and because he found Spooner a trust-
worthy witness while he was not favorably impressed by Nutting ,' finds that the
latter spoke to Spooner substantially as she testified.
On August 8, 1942, the Union filed its original charge with the Board . According
to Organizer Edward J. Freeman , it was in part motivated in so doing by the
events of July 17-24, 1942. On July 16, a local newspaper carried an item
inserted by a union member, the headline of which stated that the "Tannery Co."
was to have a dance on July 24 to bring the employees together in a social way.
Snider, who had no knowledge of the proposed affair and because he considered
that the newspaper story attributed sponsorship of the dance to the respondent,
on July 17 called - a meeting of the employees in the plant on company time:
It was there revealed that the Union was sponsoring the dance . Some of those
present suggested that the employees "have 'a dance of their own ." Snider
reacted favorably and at his suggestion the respondent 's committee in charge of
the sale of war bonds and stamps was selected to arrange it. The Union held
its,dance as scheduled on July 24 ; the attendance was about 50. The dance
arranged at the July 17 meeting , tickets for which were sold in plant, was
held on July 31 , about 100 persons being in attendance . From all of the circuir,-
stances revealed by the record , and contrary to what was apparently contended
by the Board, the undersigned finds that the respondent, by its activities in con-
nection with the July 31 dance, did not interfere with its employees in violation
of the Act.
About September 30, according to employee Spooner, Foreman Nutting in-
formed her that another employee had asked him for raise in pay, that she did
not deserve it, ,utd that he had told the other employee that if the Union came
into the plant her pay would not be increased , and that in that event the em-
ployees would no longer be able to move from machine to machine as work was
available , but would be sent home before they could obtain "another job." On or
about October 16, according to employee Helen Perkins , Nutting asked her if
she was a union member , and upon being informed that she was , told her that
if the Union organized the plant , she' would be placed on a piece work basis
and that if she worked as slowly as she then did she would not be able to "make -
a day's pay," and that Spooner, who was to his knowledge a union member, would
also suffer a loss in pay. He added , according to Perkins , that he knew who
"the big people in the Union " were. During the last half of October , according
'to employee Alfred Corriveau , Nutting asked him whether he had joined the
I Also a son-in-law of Brenner.
'.Spooner testified that she so answered because she thought it was a matter with which
-Nutting was not properly concerned
° The reasons for discrediting Nutting's testimony are hereinafter diaenecwl,
900 DECISIONS OF_ NATIONAL LABOR RELATIONS BOARD'
Union. Corriveau said he had not, and Nutting, thereupon told, him that if the
Union, came into, the plant many of the employees would 'suffer losses. in, pay.
Nutting categorically denied the statements attributed to him by Spooner, Per-
kins, and Corriveau. The undersigned has found Spooner to have been a reliable
witness and credits her testimony. He was also impressed by the demeanor of
Perkins and Corriveau whom he found to be witnesses worthy of belief. Nutting,
on the other hand, demonstrated such anxiety to deny whatever might reflect
adversely upon the. respondent as to, render his, testimony of doubtful credi-
Lility.° The undersigned therefore finds that Nutting spoke to' ,the. tlii•ee.,em-
ployees substantially as they testified.
On October 16,8 the Union held, an evening meeting announced by leaflets;'one
of which, at Fairbanks' request, was delivered to him by Organizer Freeman
Fairbanks ° and William Comeau 10 entered the meeting during its progress, were
requested to leave by Freeman, and promptly retired.
Employee Rachel English, then a union,member,11 was present at the October
16 union meeting. On October 19 or 20, she informed Supervisor Abrams that
she was about to resign from the. Union" She testified without denial,38 and'
the undersigned finds, that Abrams told her, s"... you have a head on your
shoulders. Use it to your best advantage." English thereafter prepared blank
resignations from the Union, signed one herself,, gave one to employee Fred
Lougee, who signed it, and on October 23, handed both of them to Organizer
Freeman. Employee Dorothy LaBonte testified, and the undersigned finds, that
during the week succeeding the October 16 meeting, English told' her of her
talk with Abrams, and asked LaBonte and three other employees who were
present to resign from the Union for their own good "because if' the Union
came in, the plant would shut down " English, as revealed by the evidence,
during, working hours and at lunch, repeatedly urged employees LaBonte,
Sadie Garland, Miniutti, and Corriveau to execute one of the blank resignations
from the Union which she carried on her, person, telling them that doing so
would be to their 'best interest. So far as is revealed by the evidence none
complied with her importunities. According to LaBonte's undenied testimony,
which the undersigned credits, English on October 27, told Abrams, "Well, I
told them it was best for them." 14
4 For example , he testified on cross-examination that he had plenary powers to discharge
an employee , whether for poor work or improper conduct, without consulting with Snider,,
Abrams, Brezner , or anyone else, but on redirect examination . and in response to leading
questions by the respondent 's attorney he testified that at a foreman ' s meeting he had been
given instructions by Snider that no one was to be discharged without first consulting him
Snider testified that-he did not recall Nutting's consulting with him before ';Messer, whose
case is discussed below, was discharged
Employee Messer was discharged on the same day -
Late in September- 1942, Fairbanks commenced devoting some of his time to working
as'a production employee in the splitting department. He thereafter continued to act in
personnel matters with Abrams, however , and although he became a full -time employee in
the splitting department on October 10, did not punch the time clock until the week
beginning October 18 The evidence indicates, that the employees considered him to have
been a supervisor at the time of the meetnig, and he testified that he did nothing to cause
them to think otherwise . The undersigned therefore finds the respondent to have been
responsible for his October 16 activities.
10 The Board contended that Comeau was a foreman . The weight of the evidence indi-
cates, however, and the undersigned finds , that Comeau was a skilled worker and did not
occupy the position of foreman.
11 She signed a membership application on July 23, 1942
1' She testified that she determined to do so because she felt that if Fairbanks and Comeau
could not attend a meeting of the Union, "it wasn ' t good enough for me to stay in it."
Abrams was not called as a.witness.
14 She is found to have had reference to her endeavors to procure employee resignations
from the Union. -
BREZNER TANNING CO., INC. 901'
The-'Board contended that the respondent, through Abrams, was responsible-
for English's campaign against the Union While the circumstances surround-
ing it render the respondent's position open to suspicion, the evidence, is not
sufficient to render English's activities binding upon the respondent. The un-
dersigned therefore finds that the Board's contention that the activities of-
Abrams and English constituted violation of Section 8 (1),of the Act, must fail.
The undersigned finds that by the activities of Pollack of Swartz, Snider,
Nutting, and Fairbanks, the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section'7 of-
the Act.
B. The discharge of Messer
Grace Messer was hired by the respondent through Fairbanks on September-
26, 1942, and began work on September 28 in the shipping department under
Foreman Nutting. She joined the Union on October 13 and, in the plant on
October 14, gave her cousin, employee Barbara Fownes, two blank applications
for membership. Fownes placed them in her pocketbook. Later the same' day,
an employee from another floor of the plant asked Messer for an application
card. Messer procured one from Fownes' pocketbook, took it "over to the-
bottom of the stairs," and gave it to the employee who had requested it. Messer
testified, and Nutting denied, that Nutting was watching her while she did
so. The undersigned found Messer to be a reliable witness, credits her testimony,
and finds that Nutting witnessed the incident 15
On October 16, Nutting told Messer that he was laying her off "for a while"
and, according to his testimony, stated that he was doing so because 'he had too
much help in his department. Nutting testified that the lay-off was tantamount
to a discharge and'that he so intended it. Messer finished out the day, received
her pay, and left the plant.
On October 20, Messer returned to the plant and spoke to President Snider,
whom she asked for a job. She told Snider that she had previously worked for
the respondent and stated her name. He replied, "No, we don't need any help,"
hut-he promised to let her know of any future vacancies." Between October 13,
1942, and January 27, 1943, the respondent hired 163 persons, about half of them
women, of whom about 7 were employed in the shipping department. Messer,
however, never heard from the respondent. ,
The respondent contends that Messer was discharged for inefficient work
during her 4-week "probationary" period. The record reveals drat although the
respondent hired employees on a trial basis for one month, at the end of which
they received an automatic increase in pay,17 Messer was never informed of
this policy.
It is undisputed that, when Nutting discharged her, he did not mention
Messer's alleged slowness nor advance it as his reason for dispensing with
her services. Messer testified that no complaint had been made to her respecting
her work, and employee Spooner, with whom she worked, testified that she
was as satisfactory as any new worker. Nutting, however, testified that he had
warned her on several'occasions that her work was too slow." He also testified
"The evidence reveals that Nutting was familiar with the appearance of the Union's
'yellow, 7 by 3y.-inch application cards. Nutting, who was watching Messer; must there-
fore be considered to have been aware of the nature of the card which she removed from
the pocketbook
'
' " Snider testified that lie could not recall the conversation but stated that it might have
taken place The undersigned finds that it transpired as related by Messer.
17 Required by New Hampshire law. -
18 Asked why he did not discharge her at the time of his last reprimand, 3 or 4 days
before Messer was let go, he answered, "Well, I gave her a chance."
536105-44-vol. 50-58
902 DRC1SIONIS OF NAMPIONAL LABOR RELATIONS - BOARD
that Spooner had complained to him that Messer was incapable of keeping up
with the work. Spooner , however, had previously testified that she had not
complained of Messer 's work. The undersigned has found Nutting a witness ^
of dubious credibility and, upon the convincing testimony of Messer and Spooner,
finds that he did not complain to Messer regarding her work and that Spooner
did not speak to him respecting its alleged deficiency.
Although the respondent was at, all times ' hard pressed to obtain employees
and made it a practice to transfer employees from department to department in
an effort to find them jobs which they could satisfactorily perform, it made no
such effort in the case of Messer.
The chronology of events , the circumstances surrounding her discharge,
Nutting's antipathy to the Union and his knowledge of Messer 's union member-
ship 's and of her activity , as found above , the failure of the respondent 's effort
to establish Messer 's allegedly unsatisfactory work, the respondent 's refusal, to
re-employ her even though, as related above , it hired inexperienced employees in
her department after her discharge , and the entire record in the case, combine
to convince the undersigned that the respondent , in discharging her, was
motivated not by the reason advanced by it but by its desire to rid itself of
her because of her union membership and activity . He so finds . He further
finds that the respondent has thereby discouraged membership in the Union
In, contravention of the provisions of the Act.
C., The alleged refusal to bargain
1. The appropriate unit
The complaint alleged that the production and maintenance employees of the
respondent , exclusive of supervisors and clerical employees, constituted a unit
appropriate for the purposes of collective bargaining . The respondent,, although
its answer denied such unit to be appropriate , adduced no evidence in respect
to the unit at the hearing . The evidence reveals that the unit alleged to be
appropriate is the usual and customary one in the tanning industry.
The undersigned finds that the production and maintenance employees of the
respondent , exclusive of supervisory and clerical employees , at all times ma-
terial herein constituted and now constitute a unit , appropriate fqr the purposes
of collective bargaining with respect to rates of pay , wages, hours of employ-
ment, or other conditions of employment , and that such unit insures to em-
ployees of the respondent the full benefit of their right . to self-organization and
to collective bargaining and otherwise effectuates the policies of the Act.
2. Alleged representation by the Union of majority of the employees within the
appropriate unit
The parties stipulated that: ( 1) until November 23, 1942, the Union did not
represent the majority of the respondent 's employees within the appropriate
unit; ( 2) on November 23, the Union had been designated as the representa-
tive of , 77 employees by means of applications for membership ; 20 and (3) the
Union on that day therefore established a prima facie majority of the 139 em-
ployees contended by the Board and the 143 employees contended by the re-
spondent to have then been within the appropriate unit.
"Nutting testified that he did not know Messer was a union member. He admitted
knowledge of the union membership of other employees in his department , however, and
the undersigned , from all of the relevant evidence , is convinced and finds that he knew ofl
Messer's affiliation as well
20 The applications for membership constituted sufficient designation of the Union as the
representative of the employees for the purposes of collective bargaining . N. L. R: B. V.
Bradford Dyeing Ass'n, 310 U. S. 318 , 339-340.'
903BREZNER TANNING CO ., INC.
The respondent , however, contested the showing of majority representation
by the Union on the grounds that: ( a) the signatures on five applications were
printed rather than written in script , ( b) four applications were undated, (c)
five applications were dated November 23, 1942, and were not shown to have
been executed before the last conversation between the Union and the re-
spondent which took place between 10 a. in. and noon of that day, (d) one
applicant for membership formally withdrew from the Union before November
23, 1942,21 and (e ) the signatures on seven applications were forgeries and were
not those of the employees purporting to have signed them . These contentions
are considered seriatim :
( a) The printed applications were those of Reginald F. Newton, Carl H.
Esty, Charles T. Clegg, Arthur Timmins, and Calvin ,Jones. The undersigned,
while he does riot consider that printed signatures are ipso facto invalid, is of
the opinion that since the respondent was unable to compare the applications
in question with the' signatures appearing on its pay roll receipt records and
consequently raised objection to their authenticity , the burden of showing
them to be valid applications was on the Board . The Board , however, did not
adduce specific evidence with respect to the authenticity of the applications
although there was no showing that the employees who purported to have ex-
ecuted the disputed applications were unavailable as witnesses . 22 The under-
signed therefore finds that the five printed applications cannot be appropriately
considered in *arriving at the Union 's representation and will accordingly ex-
clude them.
(b) The undated applications were those of John Chenette , Doris Chenette,
Donald Ham, and Lester Woodbury . Ham • and Woodbury testified , and the
undersigned finds,- that they executed their applications before November 23,
1942. Ernest Miner, president of a local of Textile Workers Union of America,
affiliated with the Congress of Industrial Organizations , testified that the
Chenettes 23 who were relatives of his wife , signed their applications for mem-
bership in the Union at his home on September 20, 1942, that he saw them do
so, and that he saw Robert Corriveau sign as a witness . The undersigned
accepts Miner's testimony , and finds that the two Chenette applications were
executed on September 20, 1942.
(c) The applications dated November 23, 1942, were those of Albeina Miner,
Alice White, Virginia Benner, Ernest Emerson, and Marguerite Marshall. In-
asmuch as the Board adduced no evidence as to the time of their execution,
and because of the total lack of any facts to warrant the assumption that they
were executed before noon of November 23, the undersigned finds that said
applications cannot be appropriately considered in arriving at the Union's rep-
resentation and will accordingly exclude them.24
(d) Rachel English, whose application was challenged , formally withdrew
from 'the Union one October 23, 1942, by handing her written resignation to
Edward J. Freeman , union organizer . The Board contended at the hearing that
the respondent 's activities , related above, caused English to resign and that her
withdrawal was therefore not voluntary. The undersigned, upon all of the
=t Rachel English ; the application of Fred Lougee , who also resigned, is not considered,
because he was no longer employed by the respondent on this date.
22 Clegg. Timmins , and Newton were still employed by the respondent at the time of the
hearing ; Esty left its employ on November 26, 1942; Jones does not appear on any of the
employee lists in evidence and had therefore apparently quit the employ of the respondent
before October 17, 1942.
23 They had left the employ of the respondent and were not available as witnesses , having
moved to another state.-
24 No conferences were sought by the Union or the respondent with respect to collective
bargaining after noon on November 23, 1942. ' - , , ,
904 DEC 'I'SIONS OF ' NATIONAL LABOR RELATIONS BOARD
relevant evidence , finds the Board's contention to' be without merit, that Eng-
lish's resignation was valid , and that her application cannot be ' appropriately
considered . He will , therefore ' exclude' it.
(e) The applications alleged to have been -forgeries wele those of Roland Hinz,
Arthur Hugron, Thelma King, Harley Plante, Glen Spooner, Nevely Webster,
and Harry'Young. The-respondent's contention was based upon-the testimony
of an expert witness who testified that she had examined the signatures appear-
ing' on said applications, compared them with those of the employees who had
purportedly signed them appearing ori' the respondent ' s pay roll receipt ' records,
and that, based upon such examination and comparison, it was her' opinion' that
the signatures appearing on said applications were not the signatures of those
who purported to have signed them. Webster, however, testified, and the under-
signed finds , that she signed the application bearing her name.25 Hugron, Hinz,
and Spooner testified, and the undersigned finds, that their respective wives, at
their 'requests, signed-their applications in-their places and stead and in their
respective presences 20 The undersigned accepts their testimony, and findsl the
applications of Hugron, Hinz, and Spooner to have been valid. Plante testified
that he signed part of the application form, but admitted on cross-examination
that.his mother had written the application for him. He further testified that
he intended to make application for membership in the Union and that he had
attended several union meetings after delivering the application to the Union.
The undersigned, in all of the, circumstances revealed in the record, concludes
and finds the Plante application to have been valid. Young testified that he
signed the stub attached 'to the application bearing his'name and,, from all of
.the evidence, the undersigned finds Young's applicalionito'have been valid.' The
evidence respecting the King application was somewhat uncertain; but she testi-
fied, and the undersigned finds, that she' intended, to apply, for union member-
ship by means thereof. He therefore concludes and'finds her application to have
been valid as well.
The evidence thus establshes that the Union's representation on November 23.
1942, as limited to 67, and did not constitute the majorityof the employees within
the appropriate unit on said day.2'
3. The alleged refusal to bargain
Since, the Union failed to meet the statutory requirement of representation by
It. of the- majority of the respondent's employees within the unit' found appro-
priate when it requested that the respondent bargain collectively with it, con-,
sideration by the undersigned of the respondent's alleged refusal to bargain is
rendered unnecessary and he will recommend that the complaint,' in so far as
it alleges that the respondent has engaged in 'unfair laborpractices, within the
meaning of Section'8 (5) of the Act, be dismissed. ' '
IV. THE EFFECT•OF THE UNFAIR LABOR PR.ICTICFS,UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring'in
connection with the operations of the -respondent set forth in Section I' above,
have a close, intimate, and substantial relation to trade, traffic, and-commerce,
25 The handwriting expert had'testified 'that the signature on Webster's application card
bore a resemblance to'Webster's signature appearing on the respondent 's payroll-receipt
records. '
rie Hugron and Hinz explained 'that although they coilld %brite, they were, able to do so
only with difficulty and that because their wives were more adept, they frequently, per-
formed like tasks for them. ••
21 Since the union applications totaled less than 70, it is unnecessary to resolve the con-
flicting claims of the Board that there were 139 , and of the i espondent that there were 143,
'employees within the unit on November 23, 1942. 1 1
BREZNER TANNING CO., INC. 905
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 and is engaging in certain
unfair labor practices, the undersigned will recommend that it cease and desist
therefrom and take certain affirmative action designed to'effectuate the policies
of the Act.
It has been found that the respondent has discriminated in regard to the hire
and tenure of employment of Giace Messer because of her union membership
and activities.' The undersigned will therefore recommend that the respondent
offer her immediate and full reinstatement to her former or substantially
-equivalent position, without prejudice to her seniority and other rights and
privileges. The undersigned' will further recommend that the respondent make
her whole for any loss of pay she may have suffered by reason of the re-
spondent's discrimination against her, by payment to her of a sum of money
equal to the amount which she normally would have 'earned as wages from
the date of such discrimination against her to the date of the offer of rein-
statement, less her net earnings,28 during said period.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following : I
CONCLUSIONS OF LAW
1. International Fur & Leather Workers Union of the United States- and
Canada, Leather Workers Division (C. I. O:), is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of Grace Messer, thereby
discouraging membership in the Union, 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 Art.
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 has not engaged in any unfair labor practices, within the
meaning of Section 8 ( 5) of the Act.
RECOMMENDATIONS
Upon the,;basis, of,the-foregoing.,findingsof^ fact and conclusions;ofdawy,the•,
undersigneerecommend§ `that. the respondent,, Bre7ner- Tanning' Co.", Inc.,- Con
cord, New Hampshire, its officers, agents, successors and assigns, shall:
1. Cease and desist from :
(a) Discriminating in regard to the hire and 'tenure 'of employment of !any
of its employees because of their membership in or activity on behalf of Interna-
28 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 the respondent's
discrimination against him and the consequent necessity of his seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America , Lumber and Sawmill Workers Union , Local 2 590, 8 N. L. It. B. 440.
Monies received for work performed upon Federal, State, county , municipal, or other work-
relief projects shall be considered as earnings . See Republio Steel Corporation V. N. L.
If. B., 311 U. S. 7.
r
906 'DECISIONS OF'NAfrIONAL LABOR' RELATIONS, BOARD
tional Fur & Leather Workers Union of the United States and Canada; Leather
Workers Division (C. I O.)
(b) In any otl;er manner interfering with; restraining, or coercing its em-
ployees in the exercise of their right to selforganization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing; and to engage in concerted activities for the purposes of 'collec-
tive bargaining or other mutual aid or protection, as guaranteed in Section 'T
of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Grace Messer immediate and full reinstatement to her former`
or substantially equivalent position, without prejudice to her seniority and
other rights and privileges ;
(b) Make whole said Grace Messer for any loss of pay she may have suffered
by reason of the respondent's discrimination against her, in the manner set
forth in the Section entitled "The remedy" above, less her net earnings ' during.
said period ;
(c) Post immediately in conspicuous places throughout its plant and main-
tain fora period of at least'sixty (60) consecutive days, notices to its employees
stating (1) that the respondent will- not engage in the conduct from which it is
recommended that it cease and desist in paragraphs 1 (a) and, (b) hereof; (2)
that the respondent will take the affirmative action set forth in paragraphs 2
(a) and (b) hereof; and that the respondent's employees are free to become
and remain members of International Fur & Leather Workers Union of the
United States and Canada, Leather Workers Division (C. I. 0 ), and that the
respondent will not discriminate against any, of its employees because of member-
ship in or activity on behalf of that organization ;
(d) Notify the Regional Director for, the First Region in writing within ten
(10) days from the date of the receipt,of this 'intermediate, Report what steps
the respondent lies taken to comply herewith. `
It.is further- recommended that the complaint, in so far as it alleges that ;
the respondent has engaged in and is, engaging in unfair labor practices, within
the meaning of^Section 8 (5).of the Act, be dismissed:
It is further recommended that unless on or before ten (10) days from the
date of. the receipt of this Intermediate -Report the respondent, notifies said
Regional Director in writing that- it will comply,with the, foregoing;recommenda-
tions, the National Labor-Relations Board issue-an order requiring the respondent
to take the action aforesaid. . 1 - , , •' .+ . . .
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series° 2=as' amended, effective October 28,
1942-any.party may within fifteen (15) days from the date of the entry of
the order transferring the case to the Board, pursuant to section 32 of Article II,
of said Rules and Regulations,. file with the Board, Shoreham Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other pai;t of the record
or proceeding (including 'rulings upon all motions or-objections) as he relies upon,
together with the original and four copies of a brief in support thereof. As
further provided in said section 33, should any party desire permission to argue
orally before ,the Board; request'therefoi' must be made in writing to' the Board
within ten, (10), days from the date of the order transferring the' case to the
Board.
'',JOSEF L. HEKTOEN,
Dated,April 7.1943. Trial Examiner.
29 See footnote 28, supra.