California Footwear Co.

National Labor Relations Board - Board Decisions

Oct 31, 1955

114 N.L.R.B. 765 (N.L.R.B. 1955)

CALIFORNIA FOOTWEAR COMPANY - 765
the Employer against a union which is not a party to this case-and-has
for some time represented and still does represent certain employees of,
the Employer. These charges have been dismissed by the Regional
Director after full investigation, and the Employer's appeal from'such
action of the Regional Director is now under consideration by the
General Counsel. It is a long-established practice of the Board not to
hold representation proceedings in abeyance after unfair labor prac-
tice charges have been found to be without merit by the Regional
Director, notwithstanding the fact that the Regional, Director' s action
is still under investigation by the General Counsel z Accordingly, we
agree with the Regional Director's conclusion that the Employer's ob-
jections are without merit, and in accordance with his recommendation
we hereby overrule them s
As the tally of ballots shows that the Petitioner received the ma-
jority of the ballots cast in the election, we, shall certify it as the
bargaining representative selected by the employees. - -
_[The Board certified International Association of Machinists, AFL;
as the designated collective-bargaining representative of the machin-
ists and helpers employed by the Employer at the Kokomo, Indiana,
plant, excluding supervisors as defined in the Act.]
MEMBER MURDOCK took no part in the consideration of the above
Supplemental Decision and Certification of Representatives.
See Me Quay Incorporated, 107 NLRB 787 , footnote I; Terminal Storage Company,
104 NLRB 407 , footnote 2; The Alliance Manufacturing Company , 101 NLRB 112, foot-
note 4 ; United States Smelting, Refining and Mining Company, 93 NLRB 1280 , footnote 2.
The Employer's request for oral argument is hereby denied as the record and exceptions,
in our opinion , adequately present the issues and positions of the parties.
a Like the Regional Director , we also find no merit in the Employer 's remaining objec-
tions based on other pending charges for the reason that the matters involved in those
charges bear no relationship to the employees involved in this case , or concern matters
that occurred after the date of the election. -
Jack Lewis and Joe Levitan d/b/a California Footwear Company
and United Shoe Workers of America, Local 122
Trina Shoe Company and United Shoe Workers of America,
Local 122
Jack Lewis and Joe Levitan d/b/a California Footwear Company
and Trina Shoe Company and United Shoe Workers , of Amer-
ica, Local 122. Cases Nos. 21-CA1659, 21-CA-1658, and'21-CA--z
1863. October 31,1955
DECISION AND ORDER
On April 28, 1954, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that the
114 NLRB No. 117.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as more fully set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain other alleged
unfair labor practices, and recommended that the complaint be dis-
missed with respect thereto. Thereafter, the Respondents and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in these
cases, ' and hereby adopts the findings,2 conclusions, and recommenda-
tions of the Trial Examiner,3 with the following additions.
1. We agree with the Trial Examiner that Respondent California
was under a statutory obligation to bargain with the Uniofl with respect
to -moving the plant to Venice; that it violated this obligation by re-
fusing to discuss with the Union the transfer of the employees to the
new location, for the false reason that it had no control over the man-
agement of the new plant; and that the Respondents engaged in un-
lawful interrogation and surveillance, following the move, for the
purpose of defeating the Union's efforts to obtain adherents among
the Venice employees.
The Trial Examiner also found, and we agree, that the Respondents
unlawfully refused to bargain with the Union after the removal of
the plant from Los Angeles to Venice. The Respondents refused to
apply the bargaining agreement covering the Los Angeles employees
to the Venice employees; unilaterally established wages and working
conditions at Venice which differed substantially from those required
by the bargaining agreement; and" refused to recognize the Union as
the representative of the employees at the Venice plant. By these
actions, the Respondents clearly refused to bargain with the Union.
In disagreeing with the Trial Examiner's conclusions that the re-
fusal to bargain mentioned in the last preceding paragraph was un-
'Following the issuance of the Intermediate Report, the parties entered into a stipu-
lation setting forth certain additional facts with respect to the sales by Respondent Trina
to Respondent California during 1953. The aforesaid stipulation is hereby accepted and
made part of the record heiein.
20n the basis of the facts set forth in the Intermediate Report, we find that during
1953 the Respondents constituted a single employer for juiisdictional purposes We further
find, on the basis of the Respondents ' direct out-of-State sales and shipments , valued in
excess of $50 000 , that it would effectuate the policies of the Act to assert jurisdiction
herein over both Respondents Jonesboro Crain Drying Cooperative , 110 NLRB 481,
483-484.
3Acting Chairman Rodgers would find that the Respondents violated Section 8 (a) (1)
of the Act by surveillance and interrogation , Section 8 (a) (4) by discharging Piasek
and Section 8 (a) (5) only in the manner indicated in his dissenting opinion
CALIFORNIA FOOTWEAR, COMPANY- - -, - - - 767
lawful, our dissenting colleague -rests his contrary - conclusion- on the
sole fact that there was an economic reason for the removal of the plant
to Venice. In so doing he ignores the'presence and significance of an
important additional fact found by the Trial Examiner as follows :
On all the evidence in the case it appears and I find, that Cali-
fornia took fortuitous advantage of its expedient removal of its
plant to new leased quarters and resorted to a subterfuge in set-
ting up Trina as a "front" for itself in order to disregard its con-
tract with the Union and to alter wages and working conditions
from those called for by its contract with the Union.
Specifically, as detailed in the Intermediate Report, Respondent Cali-
fornia made a contractual arrangement with one of its own foremen,
Fellman, who with his wife owned a corporation called Trina, under
which Trina was the ostensible employer at the Venice plant. How-
ever, the.Trial Examiner found that "In reality, the effect of the ar-
rangement was that Fellman lent his corporate structure to California
for the sake of appearance but occupied, himself, a position akin to
that of foreman for California." Accordingly, the Trial Examiner
found and our dissenting colleague agrees that despite the superficial
formalities, "California was, during 1953, in reality the principal and
Trina was its alter ego or agent," in the operation of the Venice plant.
Under these circumstances the fact that there was an economic rea-
son for removal of the plant ceases to be controlling. We can see no
real difference between the case of an employer who decides to move
his plant to run away from his union rather than for economic rea-
sons, and an employer, who, as here, moves his plant for economic
reasons but decides to utilize the move as an opportunity to get rid
of the union, resorting to deceit and subterfuges including the setting
up of a false front in an effort to conceal the fact that he remains the
employer while he pretends to the union and his employees that he
has ceased production and has nothing to do with employment at the
new location' That the union cannot muster a majority at the new
plant because the conduct has achieved its desired end is no more ma-
terial in finding and remedying' a violation of the existing obligation
to recognize and bargain with the union in the latter situation than
in the former. We cannot agree with the suggestion of our dissenting
colleague that it is not unlawful and not a violation of Section 8 (a)
(1) and (5) of the Act for an employer to embark on a course of con-
duct specifically designed to dissipate the majority status of a col-
lective-bargaining representative, simply because the context in which
4 The fallacy in our dissenting colleague's approach which treats the mere existence of
economic reasons to move the plant as controlling is apparent if we consider its applica-
tion to an economic layoff. The mere fact that economic reasons require that some em-
ployees be laid off does not immunize an employer from-liability for utilizing a layoff as
an opportunity to undermine the union in accomplishing it.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he•engages in such conduct is a removal of his plant to a new location
for economic reasons.
•Moreober, viewing this case in the most favorable light possible to
the Respondents, it is one where the Union' s loss of majority is solely
because of conduct which in part is lawful (an economic decision to
move the plant), but in part is unlawful in the subterfuges adopted to
utilize the move as an opportunity to rid the Employer of the Union.
In such circumstances the well-established principle is that the burden
is upon the respondents to disentangle the consequence of their lawful
conduct from the consequences of their unlawful conduct; and hence
to establish that the union's loss of majority resulted from their law-
ful conduct;' failing this, the union's loss of majority must be deemed
to flow from their unlawful conduct.
The Respondents here have failed to meet this burden. ' The most
that can be;said for the Respondents is that, because of their bad-faith
conduct, we cannot know for certain whether, if Respondent California
had bargained iri good faith concerning the transfer of the employees
from Los Angeles to Venice, and had not deliberately misled the Union
and the employees as to the Respondents' future plans and their con'-
tinuing identity as a single Employer, a sufficient number of the em-
ployees would" have transferred to have preserved the Union's ma
jority. - But this' lack of certitude 'is not enough to exculpate the Re-
spondents from the consequence of their unlawful conduct; as the
uncertainty was created by the Respondents, it must be resolved
against them.6
f 6
Contrary to the assertion of our dissenting colleague, the Brown
Truck and Trailer case' is' distinguishable on its facts from the pres-
ent case, and is therefore inapplicable. In Brown, the refusal to bar-
gain concerning the.transfe>< of tlie'employees was motivated by no
erroneous belief as to the extent of the obligation to'snor`e than an
bargain under the Act. Here, however, Respondent California was
well aware of its obligations under the '. Act, but chose to disregard
them as part of a plan to elirr inate, tlieUnion as the representative
of its employees. In Brown, thelre was lacking the element ofa plan
to escape, the union by subterfuge ; in ; the course of the move. In
Brown, moreover, the distance between the old plant and the new,
and the fact that the 2 plantsPwere located in 2 separate cities, 30 miles
apart,-one, Charlotte,'With `a population in excess of 130,000, the other,
Monroe' wi'th' a population of approximately 10,000,8 raised problems
6 N. L. R, B. v., A., B. Swinerton„ et al.,, 202, F.,2d 511, 515-516 (C. A., 9), cert. denied
346 U. S. 814 ; N. L. R. B v. The Barrett Company, 135 F. 2d 959 , 961-962 (C. A. 7).
a N., L. R . B..v. The Barrett Company , supra. See also Tennessee-Carolina Transporta-
tion, Inc., 108 NLRB 1369, 1371, footnote 4,. where the Board, including our dissenting
colleague , pointed out that whether or not employees would have accepted an offer of
employment was not susceptible of any objective test unless and until the offer was made.
'Brown Truck and Trotter Manufacturing Company , Inc, 106 NLRB 999.,•,
9 Rand McNally -Cosmopolitan World Atlas , 1954 edition. 1
CALIFORNIA FOOTWEAR COMPANY 769
with respect to such physical factors as transportation and relocation
which raised serious doubts that a majority of employees would have
transferred to the new plant even if the Respondent there had bar-
gained in regard to transfers. Here, however, the 2 plants are only 15
miles apart and both are located in the Los Angeles metropolitan area,
Venice being only a suburb of Los Angeles. We do not believe such
a move as.this would place the plant beyond normal commuting prac-
tices in such metropolitan areas.
- The interpretation which our dissenting colleague places upon the
Brown case would in effect, establish an inflexible rule that the removal
of a plant for economic reasons, no matter what the circumstances sur-'
rounding the move, terminates any preexisting obligation to bargain
vvith'the employees' representative, which obligation is not revived
unless that representative establishes a new majority at thenew loca-
tion'. - We cannot agree that such a result is either required by the Act
or is necessary in order to effectuate its policies. We believe, rather,
that effectuation of the policies ' of. the Act requires that the-Board, in
this, type of case as in any other, not permit an employer to profit by
his own unlawful conduct; each case of this type must therefore be
decided oxi- the basis of its own facts, including both the character
of the employer's conduct and the probabilities resulting from the
Surrounding physical circumstances. In view of these considerations,
therefore, and on the basis of the facts in this case, we find that, in the
absence of affirmative evidence that a majority of the Los Angeles
employees would not have transferred to Venice if the Respondents
had fulfilled their obligations under the Act, it is not unreasonable
to ' believe 'that they would have done so. We further find, in agree-
ment with the Trial Examiner, that the Union's loss of majority was
directly attributable to the Respondents' unfair labor practices, and
that by refusing to recognize and bargain with the Union at Venice,
the' Respondents violated Section 8 (a) (5).'
We further disagree with our dissenting colleague that the' pre-
existing contract did not continue in effect after the removal of the
plant from Los Angeles to ' Venice, although we do agree that the
term "in effect," as used in Section 8 (d), is to be construed in the
light of the Board's*contract-bar doctrines .1 Under such doctrines, a
change' in the. situs of operations does not remove a contract as a bar
when the operations and. physical equipment remain substantially
the. same, and a substantial percentage of the employees at the old
9 The Board has also held , without specific reference to Section 8 (d), that an employer's
obligation to recognize and bargain with a contracting union continues throughout 'the
period when the contract would bart determination of representatives: Hemton Furniture
Company, 111 NLRB 342 ; Royal Cotton Mill Company, Inc, 109 NLRB 186 ; Sanson
Hosiery Mills, Inc . 92 NLRB 1102, enfd 195 F 2d 350 (C. A 5) ; cf. Scars Rocbncls &
-Company, 110 NLRB 226.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant have transferred to the new.10 Here the operations and physical
equipment remained substantially the same and, as we have found, the
failure of a substantial number of the employees to transfer from Los
Angeles to Venice must be attributed to the Respondents' unfair labor
practices. As effectuation of the policies of the Act requires. that
conditions at the Respondents' plant be restored as nearly as possible
to those which would have existed in the absence of the Respondents'
unfair labor practices," the contract must therefore be deemed to have
remained "in effect" until it could lawfully be terminated in accord-'
ance,with the requirements of Section 8 (d). As the contract was,still
"in effect" at the time the Respondents refused to apply it to the
Venice employees, and unilaterally changed the wages and working
conditions, of their employees, we find, in agreement with the Trial
Examiner, that the Respondents thereby unlawfully refused to bar-
gain with the Union, within the meaning of Section 8 (d) and Sec-
tion8 (a) (5).
2. We also agree with the Trial Examiner that the Respondents
discriminated against Blanche Roark, chief steward of the Union,
both at the time her employment at the Los Angeles plant was termi-
nated, and on February 5, 1953, when she was denied employment at
the Venice plant. The Trial Examiner's findings, that the Respond-
ents' actions with respect to Roark were discriminatorily motivated,"
are fully supported by the record, and our dissenting colleague does
not appear to contend otherwise. Rather, he appears to rest his dis-
agreement upon the propositions that Roark's termination was lawful
because the termination of operations at the Los Angeles plant was
lawful, and that the denial of employment at Venice was lawful be-
cause. the type of employment which she requested was not available.
However, the Trial Examiner did not find, as our dissenting colleague
seems to assume, that the termination of Roark's employment at the
Los Angeles plant was itself discriminatory; he found, rather, that
discrimination occurred at that time when Roark, for discriminatory
reasons, was not offered a continuation of employment at the new plant.
The Trial Examiner finds that Roark was 1 of a group of 5 employees
that Fellman told Lewis he would like to have at the Venice plant if
available, and that if he had not been adversely influenced by Lewis
he would have made arrangements to take her to Venice. It is there-
fore not material to this finding of discrimination -that the closing of
the Los Angeles plant was not unlawfully motivated. With respect
to the Respondent's further denial of employment to Roark at Venice,
Fellman admitted that work was available for her on February 5, when
she first applied; and, as found by the Trial Examiner,'the Respond-
10 The Alennen Company, 105 NLRB 677, Plvss Poultry, Inc, 100 NLRB 64
n Ford Motor Company, 31 NLRB 994, 1099-1101
32 We find it unnecessary , however , to rely on the Tiial Examiner ' s reference to the
Respondent 's refusal to bargain concerning the transfer of the employees.
CALIFORNIA FOOTWEAR COMPANY 771
ents failed to offer her employment on that date for discriminatory
reasons. As the discrimination on that date occurred at a time when
work was available, it is therefore of no consequence that work may
not have been available 2 days=later.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Jack Lewis and
Joe Levitan d/b/a-California Footwear Company, its partners, agents,
successors, and assigns,, and Trina Shoe Company, a corporation, its
officers, agents, successors, and assigns (to the extent that it has acted
or in the future may act on behalf of Respondent California Footwear
Company or its partners, agents, successors, or assigns), shall:
1. Cease and desist from :
(a) Discouraging membership in United Shoe Workers of America,
Local 122, or any other labor organization of their employees, by
terminating the employment of any of their employees discrimina-
torily and by thereafter failing and refusing to reinstate them, or by
discriminating in any other manner in regard to their hire and tenure
of employment or any term or condition of employment.
(b) Discharging or otherwise discriminating against any employee
because he has filed charges or given testimony under the Act.
(c) Refusing to bargain, collectively upon request with United Shoe
Workers of America, Local 122, as the exclusive representative of all
production employees employed at the Respondents' Venice (Los
Angeles), California, plant, excluding executive,'administrative, sales,
clerical, and maintenance employees, truckdrivers, guards, profes-
sional employees, and supervisors as defined in the Act.
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist United Shoe Workers of
America, Local 122, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in
other concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Shoe Workers
of America, Local 122, as the exclusive representative of the employees
in the above-described appropriate bargaining unit with respect to
3137644-56--vol 114---50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages, rates of pay, hours of employment, on other conditions; of
employment. -
' (b)" Offer- to Eugene Piasek 'immediate and ' full' reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make Eugene Piasek
and Blanche Roark whole for any loss of pay suffered as a result of
the discrimination against them, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payrolls records; social-
security payment records, timecards,. personnel , records and reports,
and all other records necessary to analyze the amounts of back pay due
and the rights of employment under the terms of this Order.
(d) Post at their Venice, California, plant, copies of the notice at-
tached to the Intermediate Report marked "Appendix A." 13 Copies of
said notice, to be furnished by the Regional Director for the Twenty-
first.Region (Los Angeles, California), shall, after having been duly
signed. by the authorized representative or representatives of the Re-
spondents; be posted by Respondent California immediately upon re-
ceipt thereof and be maintained by it for a period of-sixty (60) con-
secutive days thereafter in conspicuous places, -including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent California 'to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-first Region, in
writing,-within ten (10) days from the date of this Order what steps
the Respondents have taken to comply herewith.
- IT IS HEREBY FURTHER ORDERED that except as otherwise found herein,
the complaint in these cases be, and it hereby is, dismissed.
ACTING.CHAIRMAN RODGERS, dissenting in part :
1. This case involves, inter alia, a question concerning the continu-
ance of an employer's bargaining obligations where, for reasons having
no connection with employee rights protected by the" Act, the Em-
ployer removes his plant to a new location. I do not agree with my
colleagues' resolution of the issues pertaining to this matter.
As is set forth in the Intermediate Report, the Respondent 14 and the
Union were parties to a collective-bargaining agreement covering em-
ployees at the Respondent's, Los Angeles plant. The agreement was
is This notice shall be modified by substituting the words "A Decision and Order" for
the words "The Recommendations of a Trial Examiner.", In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant -to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
14I agree with the conclusions of my colleagues and the Trial Examiner that Respondent
Trina was the agent, or alter ego. of Respondent California; and that together they
constituted a single employer within the Act's meaning The term "Respondent" is used;
in this opinion, to signify both Trina and California as a single entity.
,CALIFORNIA FOOTWEAR COMPANY 773
effective until September 1953. In January 1953, the Respondent
closed the Los-Angeles plant, and moved to a new plant, some 15 miles
-distant, in Venice; California. The record shows, and the Trial' Ex-
aminer found, that the moving of the, plant, was prompted by personal
and economic considerations, and not by any antiunion considerations.
When the Union learned that the Los Angeles plant was to .be
moved it talked with the Respondent about transferring the ' Los
Angeles employees to the Venice plant. The Respondent, however,
declined, asserting -that the Venice plant would be under, a man- age-
ment' over which it lacked control. Subsequently, 3 weeks after-the
,Venice plant had begun to operate, the Union notified the Respondent
that the Los Angeles employees requested employment at Venice as
jobs became available. The Union also took the position that its bar-
gaining agreement with the Respondent, covering eni,ployees at, the
Los Angeles plant continued in being and was applicable to employees
at the Venice plant. The Union further asked that, without any ref-
erence to the Los Angeles agreement, 'the Respondent recognize it as
the-representative of the Venice employees. The Respondent agreed
to this latter request, provided the YJnion could show that it represented
a majority at that plant. Though it attempted to do so, the Union
could not make such a showing. In fact, the Union never secured the
support of a majority of the Venice employees.
Only three of the Los Angeles employees applied in person for em-
ployment 'at Venice. Of these, two were hired. The. third, Roark,
was' not hired, but, as I indicate below, I do not think the failure to
hire Roark was discriminatory. In addition, the Respondent itself
offered jobs at Venice to two other, Los Angeles employees, both of
whom went to work there.
On these facts, my colleagues, in agreement with the Trial Examiner,
hold that the Respondent violated Section 8 (a) (5) of the Act when it
failed to discuss with the Union the transfer of employees from Los
Angeles` to Venice. With this conclusion I agree. But my colleagues,
in agreement with the Trial Examiner, further find that the Respond-
ent violated Section 8 (a) (5) in each of the following particulars: By
refusing to apply the bargaining agreement covering Los Angeles em-
ployees to the Venice plant; by establishing wages and working condi-
tions for the Venice employees different from those in the Los Angeles
agreement; and by refusing "to recognize" the Union as the repre-
sentative of 'the Venice employees. With these latter, conclusions, I
cannot agree.
The problem of this case is not a new one for' the Board.' In the
very recent, and very similar, Brown case 15 (tivhich I think is control-
Brown Truck and Trailer Manufacturing - Company, Inc., 106 NLRB 999 (panel
decision by Members Houston and Peterson ; Chairman' Farmer disputed the, union's
majority status, and therefore did not pass upon the other matters decided -in-the case).
See also, National Hardware Co., 55 NLRB 71.
774 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
ling here) the employer, because of economic considerations, and not to
avoid collective bargaining or to discourage union membership, moved
his North Carolina plant from Charlotte to Monroe. The employer
failed to give notice to the union, the majority representative of the
Charlotte employees, in advance of the move. The Board ruled that
because of the considerations behind the move, the termination of the
employment of the Charlotte employees and the. failure to hire them
at Monroe did not violate the Act. It held further that the employer's
failure to discuss, with the union the movement of the plant in advance
of the move, thus failing to give the union an opportunity to discuss
the placement of the Charlotte employees in positions at Monroe, was
a refusal to bargain within the Act's meaning. The Board specifically
rejected .both the Trial Examiner's finding that the union was the
statutory representative of the Monroe employees, and his derivative-
conclusion that the employer had violated Section 8 (a) (5) by not bar-
gaining with the union concerning those employees. With respect to
this latter issue the Board said : 11
It is perhaps possible that, if the Brown Company had fulfilled its
obligation to bargain with the Union with respect to the location
of the Charlotte plant employees at Monroe, an agreement may
have been concluded resulting in the transfer of the employees in
question. We cannot assume, however, that even if such agree-
ment had been reached, Charlotte employees would have trans-
ferred to Monroe in numbers sufficient to constitute a majority of
the employee complement at the Monroe plant. In the light of
these circumstances and the lack of antiunion motivation behind
the move to Monroe, we do not believe that we should attribute
to the Union statutory representative status in the absence of
affirmative evidence that a majority of the employees at the Mon-
roe plant have, in fact, designated the Union as their bargaining
representative.
The. conclusions of the Trial Examiner and of my colleagues that
the Respondent violated the Act by refusing, to bargain with the
Union after the movement of the Respondent's plant to Venice is predi-
cated upon two premises. The first premise is that the Respondent's
failure, in violation of the Act, to talk to the Union about transferring
the Los Angeles employees to Venice rendered immaterial the fact
that the Union never represented a majority of the employees at the
Venice plant. The second premise is that the bargaining agreement
covering the Los Angeles employees continued "in effect" at the
Venice plant, thereby preventing the Respondent from modifying
the terms of the agreement without first satisfying the procedural
161bid., page 1002.
CALIFORNIA FOOTWEAR COMPANY 775
requirements of Section 8 (d).17 Both these premises, in my opinion,
are unsound.
The Trial Examiner rested his position upon the proposition that the
Union's loss of majority "can be directly traced" to the Respondent's
initial failure to talk about the transfer of employees from Los
Angeles to Venice. This "direct tracing" of the loss, however, did not
find its way into the Intermediate Report. My colleagues also say that
the loss of majority was "directly attributable to the Respondent's
unfair labor practices." [Emphasis supplied.] But my colleagues
cite in this connection only one unfair labor practice-the failure to
talk about the transfer of employees. They allude loosely to the fact
that Respondent Trina was the alter ego of Respondent California,
and they say that Trina was a' "false front" for California, and that
California played false with the Union and its employees by not dis-
closing it was running the Venice plant, glut, significantly, they do not
say that these acts were unfair labor practices. The truth, of course, is
that they were not.
Nor do my colleagues explain satisfactorily why in this case they
would put the burden "upon the Respondents to disentangle the conse-
quences of their lawful conduct from the consequences of their unlaw-
ful conduct," whereas the Board imposed no such burden on the em-
ployer in the Brown case. It is no explanation to say, as do my
colleagues, that the refusal to talk about the transfer of employees in
the Brown case was motivated by an erroneous belief as to the extent
of the obligation to bargain under the Act, or that there was lacking
in the Brown case the element 'of a plan to escape the Union by sub-
terfuge in the course of the move. For the plain language of the
Board's Decision in the Brown case declared that :
The Brown Company's agents [on June, 18, 1952] deliberately
created the impression that the Company was about to abandon
its,b9x plant operations completely. They acted similarly on
August 7, 1952, when the Union explicitly renewed its bargaining
request.18
Moreover the population and the distance figures cited by my col-
leagues as distinguishing characteristics are completely without sig-
nificance. Surely my colleagues do not mean to proclaim that more
people prefer to wend their perilous way through 15 miles of an
involved and hectic metropolitan area, such as Los Angeles, rather
than travel 30 miles on an open highway as in the Brown case. in
11 Section 8 (d) provides in pertinent part : ". . . where there is In effect a collective
bargaining contract . . . the duty to bargain collectively shall also mean that no party
to such contract shall terminate or modify such contract, unless the party desiring such
termination or modification" gives, among other=things, a written 60-day notice of the
proposed termination or modification.
Is Brown Truck and Trailer Manufacturing Company, Inc, supra, p. 1001.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
short; my colleagues, without the "affirmative evidence" that the Board
required in the Brown case, are making the precise assumption that the
Board refused to make in that case. It seems to me, therefore, that my
colleagues are either overruling the Brown case , or are now limiting
the rule of that case to employers in North Carolina and are establish-
ing a different rule for employers in California. '
So far as Section 8 (d) is concerned, my colleagues advance no plaus-
ible explanation as to why the bargaining agreement covering the Los
Angeles employees remained "in effect" at the Venice plant. The
agreement itself forms no basis for such a result, its terms being silent
on the matter of the contract's continuance after the removal of the
plant. There is neither Board nor court precedent for such a construc-
tion of the words "in effect" in Section 8 (d). Indeed, what authority
there is on the subject-the Board's own contract-bar doctrine and*the
Brown case, cited above-clearly suggests that in the circumstances
of this case the Los Angeles contract was not "in effect" at the Venice
plant.'B To find that the contract was "in effect," my colleagues have
recognized the need to reconcile the realities of this case with Board
precedent pertaining to the contract-bar doctrine. To do so, they
again resort to a fiction. This time the transfer to Venice of a "sub-
stantial number" of employees is assumed . But whether expressed in
terms of the transfer of a majority of the union supporters, or a sub=
stantial number of employees, the fact remains that the majority's po-
sition rests not upon a fact but only upon, a very questionable assump-
tion.
This is not a case in which an employer, impelled in whole or in part
by antiunion considerations, moves its plant in order either to thwart
its employees' organizational activities, or to avoid collective bargain-
ing, or to gain release from the terms of an existing bargaining con-
tract. We cannot therefore impose liability on the Respondent upon
any such premise.21 On the contrary, this is a case where the move-
ment of the Respondent's plant resulted from economic and personal
considerations. Because it was thus motivated, the Respondent could,
and did, terminate its Los Angeles operations without violating the
Act.21 If we accept the fact that the Respondent could do this-and
Ii See Clarostat hTanufacturanq Co, Ina., 88 NLRB 723. In that case, the employer
closed its plant in New York City, established a new plant in New Hampshire, and hired
a new complement of employees. The Board specifically rejected the argument that a
bargaining contract covering the New York employees barred an election at the New
Hampshire plant See also Sylvania Electric Products, Inc , 87 NLRB 597.
The legislative history of the 1947 amendments to the Act shows a specific sanctioning
of the Board's contract-bar rules as dictating the dismissal of petitions when valid con-
tracts are "in effect " Sen. Rep. No. 105, 80th Cong, 1st Sess 25; H. R. Conf. Rep. No
510 80th Cong, 1st Sess 50
2' See, for example, N. L R B. v. Somerset Classics, Inc, 193 F 2d 613 (C. A 2), cert.
denied 344 U. S 816, N. L. R B. v I: C Brown Co., 184 F 2d 829 (C A. 2) ; Tennessee-
Carolina Transportation, hzc, 108 NLRB 1369; Jones Manufacturing Company, 104
NLRB 117, 121; Rome Products Company, 77 NLRB 1217, 1219-1220.
21 See Bickfom d Shoes, Inc, 109 NLRB 1346, 1347
CALIFORNIA FOOTWEAR COMPANY 777
it is most significant that the General Counsel made no claim, the
Trial Examiner made no finding, and my colleagues do not now assert,
that the Respondent could not-then I think the Board is impelled to
conclude that the Respondent 's bargaining obligation with respect to
the Union terminated when it abandoned its Los Angeles operations.
Accordingly, I would dismiss the complaint insofar as it alleges that
the Respondent refused to bargain with the Union after the move had
been made.
2. Contrary to my colleagues and the Trial Examiner, I would not
find that the Respondent discriminated against Blanche Roark. The
Trial Examiner concluded that because the Respondent did not offer
Roark a job at the Venice plant before the Los Angeles plant closed
down , and because the Respondent did not discuss with the Union the
transfer of employees to the Venice plant , Roark was "an object of dis-
crimination at the end of her employment" at the Los Angeles plant.
In my opinion , these conclusions are wholly unwarranted . The Trial
Examiner, as previously pointed out, found that the Los Angeles plant
was closed down because of economic and personal reasons and not be-
cause of antiunion reasons. And though all the employees at Los An-
geles , were released when the plant closed down , the Trial Examiner
made the finding that only the release of Roark was discriminatory.
This conclusion with respect to Roark is clearly inconsistent with his
prior finding that the closing of the Los Angeles plant was not ille-
gally motivated and that presumably the termination of the other
employees were lawful.
Neither do I perceive how the Respondent 's failure to discuss the
transfer of its employees to Venice establishes that the Respondent
discriminated against Roark. Such a conclusion is even more unten-
able than the conclusion , already adverted to, that the failure to dis-
cuss that transfer demonstrates the Respondent 's responsibility for
the Union's lack of majority support at the Venice plant.
The Trial Examiner also concluded that the Respondent rejected
Roark's application for employment at the Venice plant because of
her union membership and activity . With this conclusion I also dis-
agree . The crucial issue with respect to this latter point is whether
there was a job available when she personally applied for employment
on February 5 and 7, 1953. It is the Respondent's position that there
was no job available.
Roark had been in the Respondent 's employ from 1950 until the
Los Angeles plant shut down in January 1953. During her first year,
Roark had been a sock stitcher; thereafter , she had worked as a plat-
form stitcher . There is no showing that Fellman, who was in charge
of the Venice operation , and to whom Roark applied for employment
in February 1953, knew that Roark had ever worked for the Respond-
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent as a sock stitcher. Fellman testified without contradiction that
Roark applied for work as a platform stitcher. The Intermediate
Report shows that at the time of Roark's application the Venice plant
had need for only one full-time platform stitcher. On February 5,
two employees, Oster and Murray, were dividing the platform stitch-
ing work. By February 7, the platform stitching work had been as-
signed exclusively to Oster. It is thus clear that for Roark to have
been employed as a platform stitcher, the Respondent would have had
to displace either Oster or Murray, or both of them.
The Trial Examiner does not find otherwise. He, however, viewed
with skepticism the Respondent's testimony that Oster became so pro-
ficient at platform stitching that it would not have been feasible to
switch him to sock stitching. This completely ignores the Respond-
ent's position that in order to have employed Roark, it would have
had to demote Oster to another job where he would suffer reduced
earnings. This the Respondent would not do. Certainly the law does
not require the Respondent, in order to avoid a charge of antiunion
discrimination, to transfer incumbent employees to less favorable
positions in order to accommodate prounion applicants. It seems to
me that the Respondent's position in this regard was both reasonable
and sound. The Board has no right to substitute its concept of busi-
ness management for that of the employer.
This statute places the burden of proving discrimination upon the
General Counsel; it does not require the Respondent to prove nondis-
crimination. Because of the facts discussed above, and because it is
not established by the record that platform stitching work was other-
wise available, I do not believe the General Counsel has sustained the
burden of proving that Roark was discriminatorily denied employ-
ment at the time of her application.
MEMBER LEEDOri took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On April 3, 1953, United Shoe Workers of. America, Local 122, herein called the
Union, filed with the National Labor Relations Board, herein called the Board,
charges against the above -named Respondents (herein called California and Trina,
when referred to individually ) of violation of Section 8 (a) (1), (3), and (5) of
the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Thereafter the Union filed three amended charges against Trina. On July 9, 1953,
the Acting Regional Director for the Twenty -first Region (Los Angeles , California),
on behalf of the General Counsel for the Board, on the basis of the foregoing charges,
issued an order consolidating the cases and a consolidated complaint both of which
were served on the respective parties. The complaint alleged that each of the Re-
spondents had, on specified dates, refused to bargain with the Union upon request;
had discriminatorily discharged Anna C. Cherry on April 2, 1953, Ruby Lee Walker
on April 6, 1953 , and Jack Rosenthal on April 28 , 1953; had interrogated employees
concerning their union membership and activities ; and had engaged in surveillance
of the Union.
CALIFORNIA FOOTWEAR COMPANY 779
The Respondents filed separate answers on August 3, 1953, denying the commis-
sion of the alleged unfair labor practices and pleading affirmatively that the Board
was estopped because this proceeding had the purpose and effect of enforcing a labor
contract, that the Union was currently prosecuting an action in a State court to
enforce a provision of the California statutes which constituted an encroachment
upon and usurpation of Federal power as expressed in the Act, and that the General
Counsel had been requested to protect the Respondents against such State court
action but that he had refused to do so.
On August 27, 1953, the General Counsel moved to strike the affirmative portion
of the answers and on August 28, 1953, Trial Examiner Wallace E. Royster, duly
designated to rule on the motion, granted it.
On September 30, 1953, the Regional Director, on behalf of the General Counsel,
issued an amended consolidated complaint, which did not alter the substance of the
unfair labor practices previously alleged but, inter alta, added allegations of addi-
tional violations of Section 8 (a) (1) of the Act, viz, that the Respondents delivered
an antiunion speech on March 15, 1953, followed by a refusal to permit the Union
to reply thereto under similar circumstances, and by making promises of wage in-
creases and threats of retaliation.
On October 12, 1953, said Regional Director issued an amendment to the
amended consolidated complaint in which it added an allegation that on February
1, 1953, and again on February 9, 1953, the Respondents and each of them failed
and refused to employ Blanche Roark 1 to discourage membership in the Union.
Pursuant to notice, a hearing was opened at Los Angeles, California, on October
13, 1953, by William E. Spencer, as duly designated Trial Examiner. At the hear-
ing on that date, counsel for the Respondents moved for a reconsideration of
the ruling of Trial Examiner Royster striking the affirmative defense in the Re-
spondents' answers. After hearing argument, Trial Examiner Spencer reaffirmed the
the ruling of Trial Examiner Royster. The Respondents then moved to quash three
subpenas which had been issued. The motion was denied, but the Respondents
refused to comply with the subpenas. To give the General Counsel time to en-
force the subpenas, the case was adjourned? At the reconvened hearing on Novem-
ber 5, 1953, counsel announced compliance with the subpenas. The hearing was
further adjourned to November 10, 1953, at which time the case was reassigned to
Trial Examiner James R. Hemingway. The hearing thereafter proceeded on various
dates to and including November 25, 1953.
At the hearing on November 10, 1953, the General Counsel moved to strike from
the amended consolidated complaint the name of Ruby Lee Walker as a discriminatee.
The motion was granted with prejudice. On the same day the Respondents stated on
the record their answers to the amended consolidated complaint and the amendment
thereto, specifically denying the alleged unfair labor practices and certain other allega-
tions. At the close of the General Counsel's case-in-chief on November 23, 1953,
the Respondents made motions to dismiss the complaint with respect to Roark, Cherry,
and Rosenthal, a motion to dismiss as to the refusal to bargain, and a motion to recon-
sider the ruling, previously mentioned, of Trial Examiner Royster. All were denied.
At the close of the hearing on November 25, 1953, the Respondent repeated the
same motions. Ruling thereon was reserved. Oral argument was made on the record.
The parties waived the filing of briefs.
On November 27, 1953, the Union filed a new charge against the Respondents alleg-
ing violation of Section 8 (a) (1), (3), and (4) of the Act.3 On December 3, 1953,
the General Counsel moved to reopen the hearing to adduce evidence that one
Eugene Piasek had been discharged because he gave testimony in the foregoing hearing
and to discourage membership in the Union. I granted the motion. On December
10, 1953, the Regional Director ordered the cases consolidated, issued a supplement
to the amended consolidated complaint, and served these documents on the parties
together with copies of the charge and notice of hearing. Pursuant to such notice a
further hearing was conducted at Los Angeles, California, on January 5, 6, and 14,
1954.
The supplement to the amended consolidated complaint alleged in substance that
on various dates in October and November 1953 the Respondents had discriminatorily
laid off Eugene Piasek to discourage membership in the Union and that on November
I Spelled Roarke in the complaint, but amended on motion granted-at the hearing.
2 The transcript shows an adjournment to October 20, 1953, and no exhibit is in
evidence to show a further adjournment, but I take official notice of a telegram in the
official files of the Board, dated October 19, 1953, continuing the hearing from October
20 to November 5, 1953
3 An amendment to this charge was filed on December 7, 1953.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
21, 1953 , the Respondents had discharged him to 'discourage membership in the
Union and because he had given testimony under the Act. When the hearing opened
on January 5, the Respondents stated their answer orally on the record , denying the
alleged unfair labor practices and alleging that the General Counsel was estopped
from proceeding on the Piasek charge because of the position of the General Counsel
in the original hearing with respect to Rosenthal. Also at the reopening, the Gen-
eral Counsel 's motion to amend the supplement to the amended consolidated com-
plaint by adding an additional date of alleged layoff was granted; the Respondents'
motion at the outset to dismiss the said supplemental complaint was denied; and
the Respondents ' motion to suspend the hearing until disposal of an appeal to the
General Counsel of the action of the Regional Director in dismissing a charge filed by
the Respondent Trina against the Union was denied . At the close of the reopened
hearing, on January 14 , 1954 , the General Counsel 's motion to amend his pleadings to
conform to the proof was granted and ruling was reserved on the Respondent's mo-
tion to dismiss as to Piasek. The parties argued orally upon the record and waived the
filing of briefs.
Upon the entire,record in the case , and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
During the year 1952 Jack Lewis and Joe Levitan , doing business as a copartnership
under the firm name of California Footwear Company, at a place of business in Los
Angeles, California , engaged in the manufacture and wholesale distribution of foot-
wear and shipped products valued in excess of $25,000 directly to points outside the
State of California. The exact character of California's operations during the major
part of 1953 is in dispute, but for the purposes of a finding on jurisdiction , it is undis-
puted that, during a substantial portion of the year 1953, Trina Shoe Company, a
California corporation (during 1953 located in Venice, an area in Los Angeles, Cali-
fornia), manufactured footwear which it delivered to California who, in turn, re-
sold the said footwear at wholesale and retail. During the first 10 months of 1953,
the value of the footwear manufactured and delivered by Trina to California and
thereafter shipped directly in interstate commerce by California to points outside the
State of California, exceeded $50,000. Although the Respondents in their answers
deny that they are engaged in commerce within the meaning of the Act, I find that
they are so engaged.
II. THE LABOR ORGANIZATION INVOLVED
United Shoe Workers of America, Local 122, is a labor organization admitting to
membership employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES'
A. The refusal to bargain
1. The Union's status at California and the theory of the General Counsel
On August 20, 1951, the Union was certified by the Board as representative of the
employees of California in an appropriate unit of production employees. On Septem-
ber 27, 1952, California executed a collective-bargaining agreement with the Union
effective for 1 year from October 1, 1952, to September 30, 1953, but automatically
renewing from year to year unless either party gave notice of termipation 60 days or
more before the terminal date or its anniversary. California operated under this agree-
ment until about the end of February 1953, at which time it claimed that it had dis-
continued manufacturing and that it no longer had production employees to whom the
agreement was applicable. It is the General Counsel's position that this claim was
based on a subterfuge, that California actually continued manufacturing under a
factitious arrangement with Trina, and that Trina was either California' s alter ego
or its successor. He contends, however, that, even if Trina is an independent con-
tractor, Trina improperly refused to'bargain upon request after a showing by the
Union of its majority.
2. The business and operations of the respective Respondents in 1952
For some time before the incidents here involved , California engaged in its manu-
facturing business at rented premises on Los Angeles Street in the City of Los
Angeles, hereinafter referred to as the Los Angeles plant. Albert Lewis, son of the
Respondent Jack Lewis (hereinafter referred to as Lewis, while Albert Lewis will be
CALIFORNIA FOOTWEAR COMPANY 781,
referred to as Albert), was an employee of California at its Los Angeles plant, and
during his 'last few months' at that location he was a salaried employee and nonmember
of the Union. Trina was incorporated in 1948 as a California corporation.4 All of
its stock was held by Maurice Fellman and his wife, who were, respectively, president
and secretary-treasurer. Its directors were Fellman, his wife, and his sister. Before
the latter part of 1952, Trina was engaged in the manufacture of footwear with its
own machinery and equipment at Costa Mesa, California, a small town in Orange
County, the county adjoining Los Angeles County to the south. Trina had never been
organized by a union. California's partners never owned any stock in Trina nor held
any position therein as officers or directors. Lewis had been acquainted with Fell-
man since about 1946 and had visited Feilman's plant in 1947.
3. Employment of Fellman by California and subsequent agreements
Because of a shortage of operating capital, Trina suspended operations before Oc-
tober 1952 and on October 1, 1952, Lewis hired Fellman at $80 per week as a pat-
ternmaker to make sample shoes. Fellman continued in California -s employ untii the
end of December 1952. During the first month of his employment by California,
Fellman, in spare time, manufactured at his Costa Mesa plant by himself a small order
of shoes for California (150 to 200 pairs) which he delivered to California and which
the latter found satisfactory.
California's Los Angeles lease was due to expire in February 1953. Its lessor, who
was asking an increase in rent from $288 to about $342 per month, turned down
Lewis' offer of $300. Because of this and because of poor health and advice of his
doctor to "take it easy" as much as possible, Lewis, who lived in Santa Monica, de-
cided to locate the plant closer to his home. During the first week in November,
California gave its specifications to realtors, and within 2 weeks the Venice location
was found. On November 24, 1952, California signed a lease for the Venice plant
with one Kate Salisbury as lessor for a term of 5 years beginning January 1, 1953, at
a rental of $275 per month for the first 2 years and $300 per month for the next 3
years.
In the month of December 1952, according to Fellman, he suggested to one of the
partners of California that Trina manufacture shoes for California, because "there
were several things that indicated there was a possibility that they might even go so
far as to discontinue manufacturing completely," such as Lewis' health and the run-
ning out of California's lease.-9 I infer that his proposal was to do the manufacturing
at the Venice plant. He testified that there was no reason why he could not have
manufactured shoes for California at his Costa Mesa plant but that it would not have
been agreeable to all parties because California wanted an arrangement whereby it
could have closer inspection of the work. Fellman informed Lewis of his financial
obligations and told him that, to make it possible for him to do any manufacturing
for California, Lewis would have to advance money to discharge his debts. As a
result of the discussions, Trina and California executed an agreement to buy and sell
footwear and a sublease by California to Trina of the Venice premises.
As evidenced by the first document which was dated January 2, 1953, Trina agreed
to sell and California to buy all the footwear required by the buyer in its merchan-
dising operations during the calendar year 1953. The buyer was given the right to
inspect both finished articles and work in process on the seller's premises. The price
of the footwear, made according to the buyer's specifications and subject to its ap-
proval, was to be fixed by written agreement for each style of shoe, slipper, or other
footwear before the seller entered on production, with a provision for arbitration in
the event of a failure to agree on the price. The buyer agreed to furnish technical
advice and assistance, for which a reasonable allowance was to be made in fixing
prices, and a reasonable allowance was also to be made "in the event that" the
buyer furnished to the seller the use of the buyer's machinery and equipment. The
agreement further provided for payment, within 30 days, for goods delivered, but with
provision that the buyer might set off the amount of any invoice against any amount
4 Fellman had operated as a proprietor before the incorporation.
Fellman, called early in the hearing as a witness by the General Counsel, testified
that he first broached this subject about 2 weeks before he moved at the end of December.
Later, when called as a witness by the Respondents, he testified that he first brought up
the subject early in December. Lewis testified that the discussions were going on about
the time that he was looking for a new location in November. He admitted, however,
that lie had full intention of leasing space in the Venice area regardless of whether or not
he ever made arrangements with Fellman. I find that the discussions took place after
California had signed its new lease.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
owing from the seller to the buyer . The last two clauses of the, agreement negated
relationship other than that of buyer and seller 6 and prohibited assignment of the
contract by the seller although permitting assignment by the buyer within certain
limitations.
The sublease , dated January 1, 1953, was for the same 5-year term as the Salisbury
lease to California with the same rent as provided in that lease . The sublease de-
scribed the premises covered as the building demised by the Salisbury lease but ex-
cepted "the front storeroom , the rear office room , and the front office room." How-
ever, the sublessee , Trina, was given joint use of the front office room with California
Fellman, although objecting to the amount of rent called for in the sublease, signed
the document , but from the start Trina was actually charged with only $200 on
account of rent.
4. Financial dealings between California and Trina
Lewis advanced various amounts necessary to pay Trina 's creditors , including the
amount of a note to a bank which was secured by a chattel mortgage of Trina's ma-
chinery and equipment . On March 21, 1953, Fellman and Trina signed a promissory
note in the amount of $3 ,500 payable on demand to California and at the same time
executed a chattel mortgage of Trina's machinery and equipment as security for the
payment thereof to cover the various amounts advanced by Lewis to pay Trina's pre-
existing debts.
Trina moved its machinery and equipment from Costa Mesa to Venice in late
December 1952. Lewis notified the trucking company that moved Trina's equip-
ment and the cost of moving Trina was billed to California who, in turn , billed
it to Trina . After the lease at the Los Angeles plant ran out in February 1953,
California moved its machinery and equipment to the Venice plant . Some of this
included machines which California was leasing from other companies under non-
cancelable leases. Although California continued to pay the lessors therefor, it
billed Trina for the rent thus paid. As 1 or 2 leases expired, the machinery was
returned to the lessors , but other machines , on which leases had not expired, were
kept at the Venice plant. It does not appear that Trina either required the use of
California 's machinery or requested that it be moved to Venice . In fact, it was
admitted that there was some duplication and that a good many machines were idle
because of duplication , principally in the leased equipment . The "reasonable allow-
ance" which the Trina-California sales agreement called for in the event that
California furnished Trina the use of California 's equipment was never fixed as a
separate figure. Nor was any attempt made to fix the value of technical advice and
assistance which California agreed to furnish Lewis testified that these items were
taken into account in the price of the footwear which California bought from Trina.
Fellman testified that when he entered into the arrangement with California he
expected little or no profit. The evidence indicates that Lewis would ask Fellman
what it would cost to make a particular shoe and that Fellman would give an esti-
mate based on cost Fellman testified that he did not figure cost and then add a
percentage for profit because "it would be a smaller item than anticipated profit,"
that "if you brought it down to percentage it might be two, one , or perhaps even less
in percentage ." The fixing of prices apparently was not done by written agreement
as agreed in the sales contract . From all the evidence I infer that neither party
to the agreement expected Trina to receive a credit for more than the shoes manufac-
tured actually cost.
With the exception of the amount involved in the chattel mortgage note, financial
transactions between Trina and California were handled on a bookkeeping basis.
California kept an account for money expended on behalf of Trina, 1 for money
advanced to Trina for payroll and operating expenses , and 1 showing credit for
finished footwear . California , itself , paid for all purchases of leather and supplies,
rental of machinery, etc , billing Trina therefor From January 10, 1953, to
September 30, 1953, California had advanced to Trina's account at weekly intervals
for payroll and operating expenses , the total sum of $43,750 . At the hearing on
November 23, 1953 , Lewis gave it as his opinion that if the contract between
California and Trina were terminated at that time their accounts would just about
even up At the reopened hearing in January 1954 Lewis testified that the arrange-
ment with Trina was severed as of January 1 and that Trina still owed California
money for merchandise billed.
"This clause reads : "It is specifically understood and agreed that Seller is acting
hereunder as a vendor and that no relationship of principal and agent , master and servant,
manutacturer and sub -manufacturer , jobber and contractor , partnership , or joint venture
is intended or shall exist between the parties hereto "
CALIFORNIA FOOTWEAR COMPANY 783
Since January 3, 1953, Trina made a few miscellaneous' sales of leather and
bindings to persons other than California. There is no evidence as to whether these
items had been owned by Trina before the execution of the sales agreement with
California or whether it represented' something acquired afterwards. With this
exception, Trina made no sales to anyone except California and received no funds
from anyone except California.
5. Description of the plant
The building housing the Venice plant has a frontage of about 80 feet. On one
side of the facade is a vehicular entrance. In the center is a double door leading
into a display room used by California which covers about half of the frontage.
On the other side of the facade is a single door leading into a smaller room occupied
as joint offices by California and Trina. Behind the display room, but reached
through the joint office, is California's office. Back of the joint office passage is the
shop, the front part of which is used by California for its stock. Behind that is
the factory.
Above the windows of the display room and joint office is a large painted sign
bearing the name,'"California Footwear Co." This sign appeared as early as March
1953. On the single street door to the joint office appear the following on four
separate lines, reading from top to bottom: "Lewis of California, Trina Shoe Co.,
Office, California Footwear Co."
Trina had no telephone listing, but California had a telephone listing at the
Venice address. In the yellow book (classified advertising telephone directory)
California had a listing at the Venice address with the words: "Calif. Footwear Co.,
mfrs. of slippers, sandals and casuals." 7
6. Employment, rates of pay, payroll, and personnel practices
In operations at Venice, Fellman, as president of Trina, drew $80 per week, the
same amount he had received as a patternmaker at California. Among the first
employees hired by Trina at Venice was Albert Lewis, son of Respondent Jack
Lewis. At first, Albert received less than Fellman, but before the hearing on
November 10, Albert had received an increase in salary to an amount in excess of
that received by Fellman.8 Fellman described Albert's position as "principally in
the supervisory capacity," but with no title, and "principally in the cutting room, but
not solely." One or two cutters were employed at the Venice plant. In response
to the question whether or not Albert directed the work of the cutters and others
in the cutting room, Fellman replied, "At times." Other evidence indicates that
Albert usually laid out the material to be cut by the cutters, but there is no evidence
that he actually gave directions. Asked whether Albert had other supervisory
duties, Fellman replied that he had and that they would be any duties that "I might
see fit to assign to him." There is some evidence that Albert occasionally inter-
viewed applicants for employment.
The evidence is in conflict as to the part played by Lewis, Levitan, and Fellman in
hiring, laying off, or discharging production employees for Trina. Testimony of
those three tend to create a picture that Fellman always made the decisions with
regard to hiring, laying off, and discharging, with Lewis and Levitan merely lending
him an occasional helping hand in interviewing applicants for employment and
performing ministerial acts on Fellman's instructions. However, the evidence as a
whole convinces me and I find that both Lewis and Levitan exercised more authority
than that. Fellman, early in the hearing, testified that he did all the hiring initially
and that he did not believe he had consulted either Lewis or Levitan about hiring
either generally or with reference to individuals. Later in the hearing, although
remembering no specific conversation with Lewis, Fellman testified that he had
told Lewis, presumably before Trina moved to the new plant, that there were
certain employees at California whom, if available, he would like to have at Venice,
and he named four employees whom he thought to be skilled workers. He did not
remember Lewis' answer, but he later employed two of those whom he had named.
7 The Respondent offered evidence that it is a common practice in the tiade for whole-
salers to describe themselves as manufacturers. In view of this, I have given the evidence
of the yellow book listing no independent weight but have considered it only as part of
the entire picture
8 Eugene Piasek testified without contradiction that when Albert got a raise from $75 to
$90, Fellman complained about it in a conversation with him (Piasek) saying that lie
was supposed to be president of Trina and was getting $80 on which lie had to support a
wife and two children, and because Albert got married lie got a raise to $90
784 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
There is cause to believe that Lewis may have vetoed Fellman 's selection of the
other two . Lewis testified that he had never hired any production employees at
Trina "directly" and that Fellman made the decision to hire, but he testified that he
did interview quite a few applicants and then would send them to Fellman "to get all
the information or instructions or whatever he has to offer ." The evidence indicates
that, in setting up at Venice , Fellman did , at times, interview and put employees
on the payroll . But Lewis told Jack Rosenthal , when the latter was discussing the
prospect of employment in December 1952 , that initially all the employees hired by
Trina would . be sent there by him and that Rosenthal would be the first clicker
operator hired . ' • Rosenthal was hired by Trina.
After California moved to Venice , Lewis and Levitan were active in hiring
some employees for Trina . Fellman testified that Levitan might have hired produc-
tion workers when Fellman had made it known that he was looking for someone to
hire and that he did not remember if Levitan had hired anyone before consulting
him. Lewis testified that he had had a conversation with Fellman "being that I was
more acquainted with the type of work and the type of manufacturing that was going
on in this place, here, I would more or less be able to judge from the conversation
of the interview , or from the experience of the applicant , whether they would fit in with
the type "of operation or not, and whatever information I obtained I turned it over
to Mr. Fellman."
Anna Cherry testified credibly that she went into the office about March 1, 1953,
and asked . Lewis , who was sitting there , about a job , that Lewis told her to wait,
that he went into the plant and sent Levitan out, that Levitan told her he could use
her and that she should return at noon . She returned at that time and was put to
work.
Charlotte Parker and Ethaline Smith, responding to a help -wanted advertisement,
went to the plant and spoke to an office . girl who called Levitan out . Levitan told
Parker to come to work in the morning , and when she returned he put her to work.
About May 18 , 1953, Levitan telephoned Smith, who went to the plant , and Levitan
put her to work . Smith testified that' I;e"vitan laid her off about ' 2 weeks later and
that toward the last of October he called her back and she worked for 3 days .9
Parker testified that Levitan laid her off in about June 1953 and later called her back
to work.
Lois Murray testified that in April 1953 she• went to the plant and talked to Levitan
and Albert , that Levitan told her he did not need her right then but that he would
call her in 3 days. When he did not call her , she returned anyway and Lewis hired
her. Lewis laid her off in August and about 2 weeks before testifying she called
Lewis and asked if she. could have her job . Lewis told her he had plenty of work
and to come back . She,returned but was laid off the same day.to
The provisions of California 's collective bargaining agreement with the Union were
not given effect at 'Trina in' Venice . Tr'ina's Costa Mesa personnel practices were
continued at the Venice plant. In"general Trina's policies were less beneficial to
employees than the provisions of the union contract.li
Trina at Venice paid its employees by check signed by Fellman . It was Lewis'
practice , however , to pick up piecework tickets and compute the amount due. Eugene
u Asked if he had recalled Ethaline Smith tb work 3 weeks earlier , Levitan testified : "I
never did. The true facts of this'case was as follows , she came in with another girl and
I had work for-to the other girl, I said, I haven 't got work .' Because she worked for us
much longer , she worked for Trina . longer , so Mr. Fellman told me, he says , when you
need somebody you put on this one." On cross-examination Fellman denied that he told
Levitan in the last 3 weeks that he could hire anybody , but he testified that Levitan might
have done so on instructions from Albert . Asked if he had laid Smith off, Levi tan testified :
"So far as the laying off , if Mr . Fellman would tell me, I would lay somebody off. If he
would not tell me I wouldn 't. In other words I was just acting on behalf of Mr . Fellman,
not on my authority " I do not credit the testimony that any such formality existed. In
fact at about the time of Smith's last layoff, Fellman was beginning to pull out of the
Venice plant . He had set up another plant for someone in Culver City, moved some of his
machinery there, and had put in an average of 30 hours a week there.
10 The foregoing instances are representative of the part played by Lewis and Levitan in
hiring and termination of employees . Additional evidence could be recited but it is not
deemed essential to do so at this point.
11 The record contains a comparison between the provisions of California 's union agree-
ment and Trina 's practices with respect to minimum hiring rates and other pay practices,
including reporting- in pay , overtime pay, prorata vacation pay, and holiday pay. Mention
will be made hereinafter of the health and welfare plan instituted by Trina at Venice.
CALIFORNIA FOOTWEAR COMPANY 785
Piasek, a cutter on-piece rate, testified "without contradiction that he, sometimes
found errors in the amount of his check and that he would go to Lewis to have them
corrected. On one occasion Piasek.went to see Lewis about an error and, as Lewis
was not there, he told Fellman that his check was short. Fellman replied that he
could do nothing about it, that Piasek would have to wait for Lewis. Piasek took
the check to Lewis the following week and Lewis checked and found an, error.
Piasek received the amount due him in his next paycheck.
On Saturday, October 31, 1953, Piasek went to the plant to get his paycheck for
the preceding week. When Fellman did not come in by-noon, Lewis told Piasek
he would give him a check, and he made out and delivered to Piasek a California
paycheck signed by Lewis and Levitan.in the amount of $60 payable to cash.. The
following week, Lewis brought the Trina paycheck: to Piasek, who endorsed it and
returned it to Lewis, receiving in cash the small difference between the $60 and the
amount of his Trina paycheck.
Piasek testified that for 1 week in 1953 the entire Venice plant was on a piece-
work basis,12 that following that period Fellman spoke to him at his machine and
told him that he (Fellman) had suggested to Lewis that the shoes could be made
cheaper if everyone were on piecework and that Lewis had said, "0. K., we will
make a try," but that at the end of the week Lewis had called Fellman into the
office and expressed criticism of the piecework compensation and it was abandoned.
Fellman, when asked on direct examination for the Respondents if he ever said
anything of that nature to Piasek, seemed confused but finally denied it.13 It was
not denied that'there was a time when piece rates applied to all production employees.
I am not satisfied that Feliman'was clear as to what he was denying, and I find that
a conversation such as Piasek testified to actually occurred. However, inasmuch
as the testimony was hearsay as to what Lewis said, I am not finding that Lewis actu-
ally made the statements attributed to him. The evidence is related here rather
to show a form of admission by Fellman that he was not completely autonomous.
Fellman at one point testified that he did not consult Lewis about individual in-
creases but that he might consult with Lewis or other parties for the purpose of
determining a rate.
With respect to supervision of the employees' work, the evidence tends to establish
that Lewis and Levitan, in addition to Fellman, did the supervising. Except for one
instance when Albert Lewis spoke to Piasek about whether or not he had performed
work assigned and about a mistake which someone had made in marking sizes, the
evidence shows little or no supervision by Albert. The Respondents argue that,
because California was buying the finished shoes, Lewis and Levitan were merely
exercising their.privilege of inspecting the work in all stages in process so that there
would be fewer rejects. If Feliman had continued his Costa Mesa operations and if
Levitan and Lewis,had confined themselves to watching and to reporting to Fellman
anything wrong which they noticed, there might be more to the Respondents' argu-
ment. However, the preponderance of the evidence indicates not only that Fellman
was required to move his factory to premises leased by California so that Lewis and
Levitan, would have closer. inspection but it also indicates that Lewis and Levitan
in fact exercised managerial authority beyond a mere inspection.14 A number of
employees testified that they had received directions from Levitan or Lewis and
that they had received instruction from both Levitan and Lewis. In some instances
they testified that Fellman also occasionally gave them instructions; others testified
that Fellman never gave them instructions.
The Respondents were careful to point out that Fellman did not object to the
admitted fact that, Lewis and Levitan had instructed employees, showing them
"Certain operations were on a piecework basis throughout the period covered by the
complaint.
13 Fellman testified :
Q. (By Respondents' counsel.) Now, Piasek still talking, testified that you told
him once that you had recommended to Jack Lewis that a piece rate system be
adopted and that Jack Lewis said O. K. Did you ever say anything of that nature
either in those words or in substance or effect to Piasek
A. Things are eery vague. It again couldn't have happened unless it's piecework,
we are referring now to the cutting room 7
Q. I am saying what the star witness Plasek said That is all I know. Look, all
I am asking is did it happen
A. No.
4To the extent that the testiinony of Lewis, Levitan, and Fellman conflicts with the
findings herein , I do not credit it.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
how to perform their work. Fellman testified, without giving any specific example,
that he objected "where there might have been a showing that I would find con-
trary to my wishes . " and that then the operation was performed as he wanted
it done. Other evidence leads me to believe that this was likely to occur only where
Fellman's experience in a particular operation was concededly greater than that of
Lewis or Levitan. Levitan testified that he would not show an employee how to per-
form an operation on a machine, ". . . 1 would in most of the cases, I would send
over Mr. Fellman because I am not an operator and he is." But if he saw a worker
holding scissors upside down he would "show them instead of going to tell Mr. Fell-
man to go see what this girl is doing or what that girl is doing." Levitan admitted
that he gave orders to an employee named Cherry. He explained: "We were pack-
ing, the Trina Shoe Company was packing for us a shoe that Mr. Fellman never
knew a thing about and still doesn't know about it which he openly admits. It
was straps. The shoes that he manufactured were a vamp shoe. . . This shoe is
made up of straps and he had never had any experience in it and so he would tell
me to go over and show her how to operate the machine and so I did." In view of
Levitan's testimony that he would not show an employee how to perform an oper-
ation on a machine because he was not an operator, but would send Fellman to
do so because he was an operator, I do not credit his testimony that Fellman would
ask him to show Cherry how to operate the machine. Cherry testified that Levitan
usually came around and told her what to do but "sometimes Joe Levitan say, `I
know what I want you to do, but I don't know how it is done.' So he get Mr. Fell-
man and bring Mr. Fellman and Mr. Fellman show me how he want it done."
Another instance of the exercise of managerial authority by Levitan is evidenced
by the fact that he told Piasek and Rosenthal, cutters on a piecework basis, who
occasionally worked on Saturday, which was not a regular workday, that they were
not to punch their timecards when they worked on Saturdays or overtime.
In October 1953, Fellman gave notice to Lewis that he did not wish to renew
the Trina-California contract when it expired at the end of the year and requested
that he be released from the remaining 4 years of the term of the sublease. Lewis
agreed to the request. Lewis testified that there had been a discussion also about
taking Albert into the California partnership if Fellman did not renew the contract.
In his testimony on November 23, 1953, Lewis said that a decision had been reached
for California to "go on to do manufacturing on our own until we find somebody
that will be able to take it over, take it off our hands." At the reopened hearing
Lewis testified that the arrangement with Trina had come to an end as of January 1,
1954, but the plant was not then operating. California expected to continue, how-
ever, either on its own or through an arrangement similar to the one it had had
with Fellman.
Shortly after Fellman notified Lewis of his intent not to renew (around November
1, 1953), he moved two of Trina's clicker machines and certain miscellaneous equip-
ment from the Venice plant to a location in Culver City, and from that time Fellman
averaged about 30 hours a week at the latter location. At about the same time he
ceased to draw his $80 a week salary from Trina. He testified that he still spent
some of his time at the Venice plant. Aside from signing checks, he performed no
apparent managerial functions after November 1, 1953. Fellman testified that in
most instances he had signed the payroll checks after they had been made out but
that he had left signed a blank check or two to cover any emergency when he was
not available. He further testified that he had not interviewed anyone for employ-
ment following that time but had "checked over everything" that had happened. The
evidence, including his own testimony, indicates that he was not, however, familiar
with all that had happened. For example, when Fellman was first called as a witness
on the General Counsel's case, he testified that some new employees were hired
while he was away and he did not know who did the hiring but that he had given
authority to Albert and Levitan to hire. He testified that Albert was in charge dur-
ing the time he was away but that "in a general sense" Levitan was in charge in that
Levitan had assured him he would keep things going. Later when Feilman was being
cross-examined as a witness for the Respondents, he testified that he had given Albert
express authority in advance to hire certain help that was needed and that he had not
given Levitan authority to hire, "but it is possible he might have done it through
instructions from Albert." Levitan testified that in that period he had put on em-
ployees for short terms at Fellman's instructions. Albert Lewis testified that, in
the sense of making the decision to employ someone, neither he nor Levitan nor
Lewis did any hiring. He testified that in that period he had interviewed a few
girls that came in for jobs, that he had written down all the information and passed
it along to Fellman, and that they were not hired until Fellman had specifically
approved their names. Albert did not give any names.
CALIFORNIA FOOTWEAR COMPANY 787
Martin Zell , who had been a foreman at another shoe plant , was hired by Trina
about mid-October 1953 . Fellman testified that he hired him after consultation
with Lewis and then terminated Zell's employ in about a month . He also testified
that he had hired Zell with the intention of using him in the lasting room but that
he did no work other than cutting, that Zell did not receive a salary while cutting but
was on an hourly rate , and that Zell had only one period of employment . Fellman
apparently did not know when he testified on November 24, 1953, that Zell had
served as a cutter for his first 2 weeks and then had been given an $85 per week
salary , but during the reopened hearing in January 1954 , Fellman appears to have
learned more about Zell's compensation , testifying that Zell was paid piece rate while
cutting and that Zell's pay had been established at $85 per week about his third
paycheck . At the hearing in November , Fellman furthermore apparently did not
know that Zell had been recalled to work and had worked for the 4 days before
Fellman gave the foregoing testimony . Likewise , Fellman could not explain the
$60 advance to Piasek. About the first week in November Levitan told Zell in
Piasek's presence , according to the latter, that Fellman "isn't here any more."
The evidence as a whole leads to the conclusion that the arrangement between
California and Trina was not an ordinary bona fide sales contract . Rather, I con-
clude that the legal documents were designed to give an outward appearance of a
type of relationship which did not exist in fact . In reality , the effect of the arrange-
ment was that Fellman lent his corporate structure to California for the sake of
appearance but occupied , himself, a position akin to that of foreman for California.
His functions in supervision, hiring , laying off, and discharging were no more than
might have been performed as a foreman . His signing of payroll checks was a
necessary formality to continue the appearance of a separate business. But Trina
operated without profit and with no funds of its own. By advancing funds for Trina's
weekly payroll , California was in a position to dictate how much should be paid for
each employee, including Fellman and Albert Lewis. It is inconceivable that a
president and stockholder of an independent corporation , expecting no profit, would
set a salary for Albert Lewis , for the type of services which he performed , larger
than he set for himself . Not only am I convinced that Fellman , in reality, was no
more than a foreman for California but I am convinced and find that even that
relationship ended no later than November 1, 1953, when Fellman ceased to draw
his salary as president and spent most of his time elsewhere.
7. Conclusions respecting the employer status of California and Trina
The preponderance of the credible evidence convincingly establishes that Trina
lacked that degree of independence essential to denominate it as an independent
contractor California's being the sole source of Trina's operating capital , its con-
trol over payroll funds , its active participation in hiring and termination of em-
ployees , its active participation in supervision of manufacturing operations, its
selection and leasing of the manufacturing site , and the use of its machinery and
equipment , among other things, combine to identify California as the dominant party
in the relationship.15 Even if the Respondents ' explanation of the conduct of Lewis
and Levitan in directing , supervising , hiring , and terminating employees were ac-
cepted and they were merely acting as agents for Trina at Fellman's request, they
would come within the statutory definition of "employer ," which includes "any
person acting as an agent of an employer , directly or indirectly ." However , looking
through form to the underlying substance of the relationship , I am convinced and
find that , despite the language of legal documents and the superficial formalities
followed by the Respondents , California was, during 1953, in reality the principal
and Trina was its alter ego or agent . As such , they were jointly and severally re-
sponsible for the unfair labor practices , hereinafter found, during the term of this
relationship
8. Circumstances of refusal to bargain
As previously stated , the Union had a collective -bargaining agreement with Cali-
fornia commencing on October 1, 1952. This agreement could be terminated by
either party on proper notice on September 30 of succeeding years.
Early in the year 1953 , Ernest Tutt , organizer for the Union , heard rumors that
California was going to shut down and that another shop was going to open in
'S Denton's, Inc., 83 NLRB 35 ; Manhattan Shirt Company, 84 NLRB 100 ; Walter
Holm & Co , 87 NLRB 1169 ; The Whiting Lumber Company , 97 NLRB 165 ; National
Garment Company , 69 NLRB 1208 , enfd. 166 F . 2d 233 (C. A 8), rehearing denied 166
F 2d 239 , cert. denied,334 U S.845.
387644-56-vol. 114-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Venice. As a result, he went, to California's Los Angeles plant and asked Lewis if
there was any truth in these rumors. Lewis said that the shop was going to close
down and he was going out of business. Tutt asked why, and Lewis explained that
he was doing this on advice of his doctor to take it as easy as possible because he
had an incurable spinal disease. Tutt asked if Lewis' decision had anything to do
with the Union or the contract or anything connected with the Union. Lewis re-
plied that it did not, that it was based on doctor's orders, that he could no longer
stand the strain and aggravation of running a shoe factory. Tutt then asked about
the Venice factory. Lewis told Tutt that it was one that was going to be operated
by Fellman. At Tutt's request, Lewis gave him the address of the new plant.
Tutt told Lewis that he was anxious to have as many California employees as possible
employed at the Venice plant. Lewis responded that he had nothing to do with
hiring or running the Venice plant and that Tutt would have to speak with Fellman
about that. Tutt asked Lewis if he had any idea of what Fellman's reaction would
be toward continuing the union contract.is Lewis replied that he did not and that
Tutt would have to talk to Fellman about that.
The agreement between California and the Union included provisions for a union
shop and checkoff of dues. California continued to check off dues of employees at
its Los Angeles plant until it moved to Venice. The last dues remittance by Cali-
fornia was for February 1953 dues for 10 employees.17
On January 27, 1953, Tutt, accompanied by the Union's business agent , went to
the Venice plant. At that time the plant was just being set up and there were not
more than five employees working. Tutt presented to Fellman a copy of the agree-
ment which the Union had with California and told him that the Union was anxious
to continue the agreement. Fellman suggested that they return later to discuss the
matter. On February 9, they returned and asked Fellman if he had been able to
look at the contract. Fellman said he had and he asked a few questions about the
agreement and commented that things at the shop were in a raw state and that they
were not producing many shoes. Tutt pressed Fellman for a reply as to whether or
not he would be willing to continue or reinstate the California-Union contract.
Fellman promised to telephone the Union by February 13 and give his answer. He
did not do so, however.
On February 19, 1953, the Union's attorney wrote a joint letter to California and
Trina, stating that it was the Union's position that Trina was actually California and
that the California-Union contract continued to be binding on Trina, that if the
Respondents took the position that they were not the same, the contract was, by its
terms, binding upon California's successor, and that until the successor agreed to
be bound, California remained liable under the contract. The final paragraph' of
the letter read:
This letter shall also serve as formal notice upon you that regardless of what
position is taken by the Company as to the existence of a union contract, all
the employees engaged at the old job at 253 South Los Angeles, Los Angeles,
California request employment on jobs which they are capable of performing
at the first time that the job becomes available. You may reach the employees
involved either by notifying the Union or notifying the employee direct.
A reply to this letter was sent to the Union's attorney by Richard Perkins, as attorney
for California, on March 19. In the reply, he described Trina as an independent
enterprise and said that it was not a successor. He stated that he was informed that
when Trina Shoe Company commenced operations it offered employment to those
who had worked at California although it was not obligated to do so.18
In the meantime, on March 18, Tutt and Knapp went to the Venice plant with a
prepared letter, addressed to the Union, reading:
Our Company agrees to recognize your Union as exclusive collective bargain-
ing agent for all of our production employees effective immediately, providing
you show us sufficient pledge and dues cards that you represent a majority of
our production employees.
1e The contract contained a provision that it was to be binding on successors and
assigns, but that when the successor or assign had agreed to be bound by the contract,
California's liability thereunder would cease.
17 The letter of remittance was dated February 11, 1953, but was on California's letter-
head bearing the Venice address The record does not fix the exact day when California
ceased operations at its Los Angeles location. California had checked off dues for 17
employees in January.
is The nature and extent of this offer will be mentioned later herein.
CALIFORNIA FOOTWEAR COMPANY 789
Tutt presented this to Fellman and asked that he sign it. Fellman read it and asked
if it was legal for him to sign it. Tutt assured him that it was; so Fellman signed
it as president of Trina. Tutt said that the Union would be in a position to negotiate
a contract with him as soon as they could prove that it represented a majority of the
production employees.
On March 23, Tutt returned to the plant with Frank Roth, a member of the Union's
executive board. Tutt asked Fellman for a list of production employees to see if the
Union had a majority. Fellman showed Tutt the timecards and Tutt copied the names
of the employees from them.
On March 23, at 4:30 p. m., Fellman called a meeting of employees, attended by
Albert and Jack Lewis and Levitan.12 All the employees were assembled at the front
of the shop. Fellman testified that his reason for calling the meeting was that the
Union had distributed a leaflet which quoted the March 18 agreement which he had
signed and which made untrue representations with respect to wage rates and other
benefits at Trina and certain other plants. Fellman spoke to the employees for about
20 minutes, discussing these representations and giving his version of the facts.20'
He called attention to the wage provisions of the union contract which Tutt had left
with him and which Fellman had posted nearby along with a typewritten statement
prepared by him on Trina letterhead. At the close of his speech, Fellman told the
employees to attend the union meetings but to use good judgment before signing
pledge cards and to verify the Union's representations of fact. Following Fellman's
speech, Lewis spoke with a few of the employees who had gathered around and
explained to them the new hospitalization plan that was going into effect . He testified
that he knew Fellman's plan was similar to one which California had had in the Los
Angeles plant because "I found that out from the insurance agents that came around
from different insurance companies and they brought in briefs, and from discussions
they had with the girl in the office as to how this plan worked." Linda Murray testi-
fied that "before we all went back to the machines, we started drifting one by one,
looking at the pamphlets that was put up , and Mr. Fellman had asked if we wanted
the union in there and no one said anything and then he asked . . . if there was
anyone that didn't want the union and no one said anything, until finally another
girl that worked at the California Footwear, Hazel Smith, I believe her name was,
stepped up and said she didn't want the union . . . and then Mr. Lewis said he
couldn't see where it would benefit us any and that we each had our jobs and as we
improved ourselves we would get a raise , but there was 16 or 18 others wanting in
there."
Murray testified , "That is all he said , 16 or 18 others wanting in there. He didn't
say they were going to hire them. . Gertrude Small quoted Lewis as saying that
"there was between 16 or 18 people waiting for our jobs any time." Lewis and other
witnesses for the Respondents emphatically denied that Lewis made a statement about
16 people waiting for jobs if the crew then working for Trina did not like theirs.
Small's memory did not appear to be very accurate. Furthermore, she testified that
she left early before the meeting was over. Although Murray's memory seemed bet-
ter than Small's, I am not convinced that her testimony was accurate in all details.
In view of the negative evidence and my doubt as to the complete accuracy of the
affirmative testimony , I do not find that Lewis made a threatening statement about l
or 18 waiting to get in. On April 17 the Union, having heard about Fellman's speech,
wrote a letter to the Respondents demanding an opportunity for the Union to address
the employees at the shop under conditions similar to those prevailing when Fellman
spoke to them. The complaint alleged that the failure of the Respondents to grant
10 According to the testimony of Linda Murray, Fellman at this meeting mentioned
the fact that Tutt had shown him the pledge cards. If this is a fact, the meeting would'
have occurred on the evening of March 24. But according to former employee Gertrude
Small, she was present at this meeting. Small testified that she quit on an undetermined
date. Her name was not on the list of employees on the Trina payroll for March 24.
Thus, she would not have heard the speech on the latter date. I find therefore that the
meeting was called no later than March 23 and it may have been as early as March 19
20 As I find that this portion of Fellman's speech did not exceed the permissible limits
of free speech, I do not detail all that lie said. Linda Murray, a witness for the General
Counsel, quoted Fellinan as saying he called the employees together because the union,
man had been out and "had showed him some names of some of us who signed up for
the union " I believe that 'Murray was mistaken that Fellman made the quoted statement
at this time, because I have.found that Tutt had not yet shown Fellman the cards at
the time of this meeting.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the request was a violation of Section 8 (a) (1) of the Act, but under the more recent
pronouncements of the Board I find no violation.21
On the following day, March' 24, Tutt again returned with Knapp, presented to
Fellman, in the office, a prepared letter of recognition which listed the names of 31
employees and the names of 17 of these for whom the Union had 12 pledge and 5
dues cards, and handed Fellman the pledge and dues cards. According to evidence
offered at the hearing, there were 27 production employees on March 24. Four of
the dues cards were those of employees who had worked at California's Los Angeles
plant. Two of the latter cards, those of Jesus Estrada and Herlinda Hernandez, bore
date stamps indicating dues paid through February; one, that of Annie Bell Stamps,
bore a date stamp for dues paid through January; and that of Charles Quesenberry,
although bearing a date stamp for dues paid through February had a penned date for
March dues and a penciled notation "See Ernie." The fifth dues card, that of Louis
Oster, who had not worked for California, bore date stamps indicating payment of
February and March dues on March 14. On this card, above the date, in a space
where payment of the $1 death benefit payment was customarily shown, was the
penciled word "free." Fellman looked through the cards, withdrawing that of Stamps.
Then he excused himself and went back into the factory. Fellman testified that, in
looking at the cards, he noticed what he called "discrepancies," that, in the factory,
he went to Quesenberry, asked if he had paid his dues and was a paid-up member
and got a negative reply, that he asked Quesenberry if the same was true of Hernandez,
with whom Quesenberry was friendly, and that Quesenberry said it was. Fellman
testified that the "discrepancy" which he noticed on Quesenberry's card was that dues
were shown to be paid for March although there was no checkoff of dues at Trina
and the checkoff would have stopped with February. He admitted that he suspected
how Quesenberry stood in the Union before he questioned him. Returning to the
office, Fellman told Tutt that he would not recognize the dues cards. After a brief
argument, Tutt and Knapp left.
On March 31 Tutt and Roth returned to the Venice plant, told Fellman that the
Union thought it now had a majority of the employees who had signed pledge cards,
and that the Union would not rely on dues cards. He asked Fellman how many em-
ployees there were at that time and Fellman replied facetiously that there were 1,624
employees. Tutt again asked and received the same reply. He reminded Fellman
that he had signed an agreement to recognize the Union if it showed that it represented
a majority of the employees and asked if Fellman intended to carry out that agree-
ment. Fellman replied, according to Tutt, "No, I don't like your antagonistic attitude
when I met with you last week." Fellman testified that he refused recognition because
he felt that there should be an election. There is no evidence that he so stated at this
time. On March 31, there were 28 production employees on the payroll. Of these,
12 had signed authorization cards. Two or three employees who had signed cards
and who were on the payroll on March 24 were not on the payroll on March 31.22
Although Tutt had with him the union authorization cards relied on, he did not, in
view of Fellman's refusal to recognize the Union on authorization cards, offer them
to Fellman. However, he offered Fellman a letter, similar to the one he had delivered
on March 24, listing the names of 15 employees from whom the Union had received
pledge cards signed on or before March 30. The evidence does not indicate that
Fellman looked at the letter and Tutt did not leave it with him.
Following the filing of the charges in this case, a meeting was arranged by a State
conciliator for April 7. At 10 a. in. that day, Tutt and Fellman met with the con-
ciliator in the latter's office. After discussing the cases of two discharged employees,
they discussed the subject of the union contract. Fellman suggested an election but
was told that an election could not be held because of the pendency of charges filed by
the Union. At noon, at the conciliator's suggestion, Tutt and Fellman had lunch to-
gether. At this time Fellman raised two objections to the contract, first, that he did
not wish to sign the contract which was under the name of California, and second, that
he believed the seniority clause would prevent a shifting of employees from one job
to another. Tutt assured him that the name would be changed to Trina and that the
21 Livingston Shot Corporation, et at., 107 NLRB 400; Cooper's, Inc (of Georgia),
107 NLRB 979; Detergents, Inc, 107 NLRB 1339
22 One card was signed by Isabel Rodriquez. There was a Mabel Rodriquez on the pay-
roll but not an Isabel. It does not appear whether or not they are the same person.
Gearline Kelly and Lonie Mae Brown, for whom the Union claimed cards, were not on
the March 31 payroll. Brown was not shown on the earlier payroll either. Although
her card was dated March 30, it was excluded from evidence As my findings -do not
depend on proof of cards or dues, I have not considered the effect of discrimination against
Roark in computing the total
CALIFORNIA FOOTWEAR COMPANY 791
seniority clause would not have the effect of prohibiting a shift of employees. When
they returned to the conciliator's office, Tutt said that he understood that Fellman's
two objections had been met and that he saw no reason why a contract could not be
signed . Fellman said that he had other objections to the contract. When asked what
they were, Fellman answered that he would have to study the contract. The meeting
ended without agreement. Presumably this was the last meeting concerning the sub-
ject of collective bargaining.
9. Conclusions on the refusal to bargain
The Respondents do not contest the appropriateness of a unit of production em-
ployees for the employer who employs them. The real contest is on the question of
who the employer is. If California is the real employer at the Venice plant, there is
a refusal to bargain, the General Counsel contends, in California's failure and re-
fusal to give effect to the existing union contract after the move to Venice (thereby
repudiating the contract), in the refusal of California to discuss with the Union the
transfer of California employees to the Venice plant, and in the fact that unilateral
changes in wage rates and other conditions of employment were made by the use of
Trina's employment conditions instead of those under the union contract. Although
denying that it was an employer after the move to the Trina plant, California con-
tends that, in any event, the union contract was illegal because it contained a clause
reading:
Apprentices or inexperienced workers with less than 3 months' experience in
the shoe industry shall secure work permits from the Union within two weeks
of their hiring and shall become members of the Union after 30 days of
employment.
The" General Counsel contends that illegality of the quoted clause would have no
effect on California's obligations under the contract because the contract contained
a separability clause and because the Union had not sought to enforce the clause,
had so notified the Respondents, and had, in a letter dated July 14, 1953, proposed
to delete the clause in question.23
California did not rely upon the illegality of the contract in discontinuing dealings
with the Union in the early part of 1953. Rather it took the position that it no
longer had production workers in its employ to whom the contract would apply.
Had California raised objection to the illegal clause, the Union might sooner have
assented to its elimination. The illegal clause was not essential to the effectiveness
of the agreement as a whole and can be eliminated without affecting the remainder
of the contract By the separability clause, the parties themselves expressed their
intention to continue the remainder of the agreement in the event that any clause
should be determined to be invalid. Such intention was not unlawful.24 I therefore
conclude that California was not relieved of its obligations under the contract by
virtue of illegality of the above-quoted clause.
As I have found that California continued to be an employer even after the move
to Venice, the only question to be decided is whether or not what it did constituted
a refusal to bargain. Section 8 (d) of the Act contains a proviso that "where there
is in effect a collective-bargaining contract covering employees in an industry affect-
ing commerce, the duty to bargain collectively shall also mean that no party to such
contract shall terminate or modify such contract, unless the party desiring such
termination or modification (1) serves a written notice upon the other party to the
contract of the proposed termination or modification sixty days prior to the expira-
za The contract also contained a clause requiring all employees to become members of
the Union after 30 days from the date of their employment with no mention of a grace
period for old employees One statement made by Respondents' counsel leads me to believe
that he was not attacking the legality of this clause To avoid any misunderstanding,
however, I find that this clause would be valid under the decision of the Board in Krause
Milling Co, 97 NLRB 530 Although the record contains no express reference to a union-
shop contract before the October 1, 1952, agieeinent, I note that the Union was certified
on August 20, 1951, and in Respondents' examination of the witness, Ray Peiffer, it was
brought out that he had been employed by California for a few days in the summer or
spring of 1952, that he was not then a member of the Union, but that he knew that, if
he had continued in California's employ, he would have had to join the Union I infer
that the Union had a union-shop contract with California before the one here involved.
In the letter of July 14 above referred to, the Union proposed an amendment to the
language of this-clause.
N. L. R B. v. Rockaway News Supply Co., 345 U. S 71.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lion- date thereof.. ." and complies with certain other requirements. On all the
evidence in the case it appears , and I find, that California took fortuitous advantage
,of its expedient removal of its plant to new leased quarters and resorted to a sub-
-terfuge in setting up Trina as a "front" for itself in order to disregard its contract
with the Union and to alter the wages and working conditions from those called for
by its contract with the Union. Whether or not this was a breach of contract, it was
a refusal to bargain within the meaning of Section 8 ( a) (5) and ( 1) and 8 (d) of
the Act.25
I also find that the Respondent California refused to bargain collectively with
the Union when the Union sought to discuss the transfer of employees from the
Los Angeles plant to the Venice plant. Lewis avoided his statutory obligation to
bargain about this subject by pretending that California was discontinuing manu-
facturing and had nothing to do with employment of production employees. If
the Union failed to represent a majority of the employees at Venice, that situation
could be directly traced to the fact that Lewis had refused to discuss and evaded
the request in the matter of transferring employees . From evidence hereafter
related, it is even inferable that the Respondents intentionally failed to invite all
of California's Los Angeles employees to Venice because of a desire to destroy the
Union's majority and to maintain a nonunion shop. Because Trina was, as I have
found, an alter ego or an agent for California, Trina was, within the scope of that
agency, bound by its principal 's obligation to recognize the Union and its contract.
Its refusal to do so constituted a refusal to bargain within the meaning of Section
;8 (a) (5) of the Act. I do not interpret the Union's conduct in attempting to prove
to Trina its majority by authorization cards to be a waiver of its right to recognition
(on the basis of its original certification and extant contract with California. Al-
though the Union suspected that Trina was a front for California, it could not be
sure of that until the matter had been fully investigated ; so it was justified in fol-
lowing a course based on alternative suppositions.
B. Interference , restraint, and coercion
Conflicts in testimony were numerous . There were no witnesses on either side
that could be called strictly disinterested , but witnesses had varying degrees of in-
terest or bias. Memories varied. In some instances witnesses testified more posi-
tively than their memories would seem to warrant . In others, especially with
Lewis and Fellman, I received the impression that they should have remembered
some things which they testified they had forgotten . In resolving conflicts, I have
taken into account the apparent keenness of memories , the possibilities of misun-
derstanding of spoken words, consistency of testimony within itself , consistency of
testimony with other testimony and with known facts, disposition of a witness to
depart from the truth , his interest or bias, the conduct of the witness while testifying,
and many other factors.
Gertrude Small, who worked at the Trina plant for a few weeks before March 24,
1953, testified that on an occasion when she was working as a packer, the date of
which was not fixed, Lewis and Fellman were talking to two women applicants for
-employment at the end of her work bench, which was "quite a ways from the office";
that Lewis told the women that the Union "wanted to come in there and did they
want to join the union , and it seems that the way he was putting it that, well, the
union was no good-something"; that one of the women said she belonged to the
Union before, and would like to belong to the Union, and did not want to work
if there was going to be trouble about the Union; that Fellman said, "Well, we
are trying not to have the union in here"; that the woman said she wanted to be-
long to the Union; that she ( Small) left before the conversation was finished and
that when she returned the women were gone and she did not thereafter see them.
Lewis testified that he remembered no such conversation and Fellman denied that
he was present at any such interview . Small's memory in some respects did not
appear to be too accurate . Because of this, because of the denials, and because
I am skeptical that such blunt statements would be made openly next to an em-
ployee whose attitude toward the Union was not known, I do not find that such
conversation took place.
Charlotte Parker was employed at Trina about April 6, 1953. About 2 weeks
later Lewis asked her if anyone had asked her to join the Union. She replied
in the negative, and Lewis remarked that there were some girls in the plant trying
to get something started and that there were always a few of those in every plant.
25 See Eva-Ray Dress Manufacturing Company, Inc, 88 NLRB 361 ; John W Bolton cE
Sons, Inc, t)1 NLRB 989.
CALIFORNIA FOOTWEAR COMPANY 793
Lois Murray was hired by Lewis at the Venice plant on about. April 15. In her
second week there Lewis called her to the office and asked her how she liked her,
job and then asked if she had joined the Union. She said she had not, and Lewis
then told her not to because she would be out a lot of money paying union dues.
Murray testified, and 1-find, that she was laid off by Levitan in August and was
recalled by Lewis about 2 weeks before she testified, that Lewis at that time asked her
if she had joined the Union and she answered that she had but did not know
what it was about when she joined, that Lewis asked her who had given her the
slip to sign (i. e., the pledge or authorization for the Union) and she answered
that she did not remember because it was when she had first come to work (in
April), and that Lewis remarked it was only someone trying to be smart.26
On March 31 or April 1, Fellman asked employee Anna Cherry what she
thought of the Union and then said that it would not do anything for the employees
and would close the shop down.
Eugene Piasek, whose discharge is related hereinafter, applied for work and was
interviewed by Fellman and Lewis on April 3, 1953. After Fellman had asked
Piasek a few questions about his identity, who sent him, and where he had worked
before, Lewis asked Piasek if he was a union member. Piasek answered that he
had been but falsely explained that he had had an argument with the union busi-
ness agent and had been "kicked out" of the Union and that this was the reason he
had left his prior job. Lewis then told Piasek to come back the next day for a
try-out.27
Piasek testified, and I find, that in May 1953 in a conversation he had at his machine
with Albert, Jack Lewis' son, no one else being present, he asked Albert if it
would not be better to belong to the Union than to run away from it, and that
Albert replied in the negative, adding, "The first year we belonged to the union
we lost $10,000." Piasek testified that he then asked what they would do if the
Union caught up with them "over here" and that Albert replied,that they would
move to another city 28
Jack Rosenthal also testified to a conversation with Albert at which no one else
was present. On March 25, the day after Tutt had shown Fellman the list of
names of employees claimed by the Union to constitute its majority, according
to Rosenthal, Albert said to him at his machine that Fellman had seen the list as
presented by Tutt and that "little by little those names would be let out." Albert
denied having made this statement in substance or effect. Rosenthal's name was not
on the list since he had not signed an authorization until later. However, if such
a threat had in fact been made, I doubt that Rosenthal, who did not appear to be
exceptionally aggressive, would have held the threat so lightly as to sign an applica-
tion blank on the very next day as he did. Because of this and in view of Rosen-
thal's interest as an alleged discriminatee at the time he gave his testimony and
the completeness and positiveness of Albert's denial in this instance, I credit the
denial.
On April 14, 1953, after working hours, the Union held a meeting in a house
on Main Street in Venice located about a mile south of the location of the plant.
Between 5 and 5:15 p. m. that evening, Lewis was sitting in his parked car almost
across the street from the meeting place. Piasek parked his car at the curb a few
se On cross-examination by Respondents' counsel, Murray testified that she was laid off
the same day. , i
27 Fellman testified that he did not believe that Pfasek was asked if he belonged to
the Union , but Fellman could not even remember if Lewis was present at the interview.
Lewis testified that there was no season to ask if Pfasek was a union member because
Pfasek said that he had worked at Ted Saval's, and it was generally known that Saval's
was a union shop, but when asked directly if lie or Fellman had put such a question to
Piasek, Lewis answered that he could not remember Both Fellman and Lewis recalled
that Pmsek had offered an explanation of some trouble he had had with the Union. It is
-extremely improbable that Piasek could have given an explanation, especially a false
one, of his standing with the Union if he had not had the question of his union membership
,put to him Because of this and my observation of the manner in which the witnesses
gave their testimony about this, I have credited Piasek's version.
28This testimony was taken subject to proof that the Respondents were responsible for
Albert's statements Although Albert's su,peivisomy authority was not great, I find that
he had some. But especially because Albert was the son of Jack Lewis and received a
higher salary than Trma's president, I find that in the minds of the employees Albert
was closely associated with management and that the Respondents were responsible for
.such utterances as he may be found to have made Mansbach Metal Company, 104 NLRB
797 , R cf J Und em wear Co, Innc , 101 NLRB 299
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cars behind Lewis' car, got out on the sidewalk side, and walked forward toward
the next pedestrian crosswalk. Up to this point, the testimony of Piasek and Lewis
coincide. Piasek testified that as he came along the sidewalk opposite Lewis'
car, he recognized it and saw Lewis, alone in the car, lean toward his right side
in a manner to conceal his face, that he (Piasek) continued to the crosswalk,
crossed the street, and stood on the sidewalk with a few others, calling their atten-
tion to Lewis, who was then sitting upright looking in their direction. Lewis
admitted that he was at the spot testified to by Piasek, but testified that he did not
know there was a union meeting scheduled there. He explained his presence there
by relating that a friend of his named Friedman had come from Passaic, New Jersey,
to visit him; that Friedman asked what the rental situation was, thinking he might
move his plant to the west coast; that Lewis drove Friedman around to see if they,
could see any signs of vacancies but consulted no realtors; that after a while he
parked on Main Street in Venice near a bus stop and talked with Friedman while
waiting for the next bus to take Friedman back to his hotel, that Piasek passed on
the sidewalk and stopped to talk for 5 or 6 minutes; that Piasek asked what Lewis
was doing there; that Lewis explained he was waiting "for this man to grab a bus";
and that he asked Piasek what he was doing there and Piasek answered that he
was going to a union meeting. According to Piasek's version, he did not speak
with Lewis when he saw him near the union meeting place, but the next day at
the factory Lewis said to him, "I thought you told me you were not a union member,"
to which Piasek testified he replied, "I am not. I went to see what is going on
over there." Lewis denied the last part of Piasek's testimony. It is odd that in
passing Lewis' car, Piasek, who was apparently on friendly terms with Lewis, would
not stop to speak or would stand on the opposite side of the street looking at Lewis,
who was looking in his direction, without giving some sign of recognition. Lewis'
testimony of the manner in which Piasek stopped and spoke with him was given
with a lack of restraint or effort that made it sound natural. I find that Piasek
did speak to Lewis on the street and I find that if Lewis said, "I thought you told
me you were not a union member," he made the statement at this time rather than
the next day. Oii the other hand, there are elements of Lewis' testimony and his
explanation of his presence there which make it difficult to believe that his being
there was pure coincidence. I am not convinced that Friedman was with Lewis
at this time. As I understand the evidence, the Venice plant was close to the
Santa Monica line 29 The route of the bus which Lewis testified his friend was
waiting for ran on Main Street into Santa Monica, in which town Lewis had his
home. Therefore, the bus would have passed the Venice plant and would have
come closer to Lewis' home than the corner near which Lewis testified he had
stopped to wait for a bus. This being the case, it would appear to have been more
logical for Lewis to put his friend, if he were there, on a bus near the plant, if
Lewis had intended to return there that evening, or to put his friend on the bus in
Santa Monica, if Lewis had intended to go home after dropping the friend. A day
or two before the meeting, the Union had handed out leaflets to employees at the
plant, announcing the time and place of the meeting. The Respondents saw other
union leaflets and could have seen this one, too. But regardless of this, I find the
circumstances of his being there too much of a coincidence to believe that he was
ignorant of the fact that a meeting was being held there. Even if Friedman was
with Lewis that evening, I find that Lewis took advantage of the occasion to stop
near the union meeting place for the purpose of surveillance.
Jack Rosenthal, one of the alleged discriminatees, testified that he attended a union
meeting on March 26, 1953, at which Tutt asked if threatening remarks had been made
to anyone there, that he told Tutt there had been to him,30 that the next day at his
machine Fellman asked him about the meeting and Rosenthal said there were not
more than a dozen people there, and that Fellman then said that there were I 1 people
at the meeting-9 from the shop and 2 spies. Fellman, without hesitation, flatly
denied that the conversation or any part of it had taken place. Although Fellman's
testimony was shaded in the direction of the Respondents' interests, he did not appear
to me to be inclined to make an unqualified, positive denial in an instance where his
memory was unimpaired and where he understood the question. Fellman may, in
20 I have taken official notice of a map of Los Angeles which tends to bear this out as
the smaller numbered streets are to the north.
30 This presumably had reference to a conversation which he had had a couple of days
before the meeting in which Fellman told Rosenthal, according to the latter, "If I were
you, I wouldn't go to that meeting," and when Rosenthal asked why not, Fellman re-
plied, "You might be breaking bread with- Jack Lewis some day." I do not find these
quoted statements to be coercive.
CALIFORNIA FOOTWEAR COMPANY 795
some instances, have given a negative answer to certain questions, where a part of
the question could have been answered affirmatively, and where he did not offer to
separate the true from the false, but the question here was both as to the whole con-
versation and any part of it, and Fellman denied both. Fellman did not deny that
he had spoken with Rosenthal about union meetings, and although I am satisfied that
Fellman may have spoken with Rosenthal on March 27 about the meeting, I do not
find that he made the statement as quoted by Rosenthal. If there had been two spies
at the meeting, they would have reported to Fellman that Rosenthal had volunteered
that threatening remarks had been made to him and that Rosenthal signed a union
application. But it does not sound logical that Fellman, knowing this, would confide
to Rosenthal that there were spies there unless Fellman was trying to inspire fear.
This did not appear in keeping with Fellman's nature.
Piasek testified that he attended the May 12 union meeting, this time going in by
the back way instead of by the front, and that the next day Fellman came to him as
he was working and said, "I thought you were not a union man, and you went last
night to the union meeting," and that he said to Fellman, "This is a free country,
and if I want to go to a union meeting, I will." Fellman testified that he recalled no
such conversation, that something along that line could have happened but not as
phrased in the question, and not the next day after a union meeting because he did
not believe he would have known of it. Fellman also testified that he knew from
some source that Piasek was attending union meetings and that the subject "was
never covered up between the two of us." I find that Fellman talked to Piasek about
the union meeting which Piasek attended but not in the words quoted by Piasek, and
I find no violation of the Act on this incident.
Linda Murray testified that on the day that Tutt brought the authorization cards
out to show them to Fellman, which she placed on the same day as Fellman's speech
to the employees, she called Fellman over to work on her machine, that Fellman then
told her, in the presence of an employee named Aldea Callahan, that he was mad at
Murray. When Murray asked why, Fellman replied, according to her testimony,
that he did not trust anybody any more and asked why she had signed that union
card. When Murray, in a surprised or questioning tone of voice, said, "I signed the
union card," 31 Fellman said, according. to Murray, "Yes, you did. I know all of
them that signed it," and turning to Callahan, Fellman said, "You did, too." Murray
testified that Callahan asked Fellman how he knew and he replied that the union man
had been out and had said so. Murray testified that Fellman, a moment later, said,
"I know where that rumor came from, now," referring to a rumor in the plant that
Lewis was going to fire anyone that joined the Union. Murray testified that she
asked where and Fellman replied that it came from Rosenthal. Murray testified
that she denied this and said that the rumor came from "the other room." Murray
then testified that Fellman asked her if she knew "they could shut the shop down,"
and that she had replied, "Well, that way it wouldn't make no money for nobody."
Murray further testified that Fellman spoke to employee Alice Dupuis and asked
her why she signed a card, that Dupuis had asked, "Jack Lewis can't fire me, can he?"
and that Fellman had asked, "Who said he was going to fire anyone?" Fellman was
unable to recall the conversations testified to by Murray but admitted that he might
have told Murray he had seen some union cards. I find that Fellman made the
statements substantially as testified to by Murray, but I find that the incidents occurred
on March 24 and not on the same day as Fellman's speech.
On the basis of the foregoing facts, I find that the Respondents interfered with,
restrained, and coerced the employees in the exercise of the rights guaranteed in the
Act by the following conduct: Lewis' questioning of Parker, Lois Murray, and Piasek
about their union membership or application for membership; Lewis' surveillance
of employees attending the April 14 union meeting; Fellman's questioning of Linda
Murray; Callahan, and Dupuis about their reasons for signing union pledge cards;
and Fellman's questioning of Cherry about her attitude toward the Union Because
it is not clear from Linda Murray's testimony to whom Fellman was referring by
the pronoun "they" in his statement that "they could shut the shop down" and because
it could have referred to the Union equally as much as to the Respondents and
apparently did in his remark to Cherry, I do not base a finding of coercion on this
testimony. I do not find Fellman's alleged antiunion speech or the Respondents'
refusal to give the Union an opportunity to reply under similar circumstances consti-
tuted a violation of Section 8 (a) (1) of the Act. The only evidence of a promise
of wage increase was Lewis' reference, after Fellman's speech, to the practice of giving
91 The finding about Murray's tone of voice is based on my observation of her testi-
mony It does not appear in the record.
796 DECISIONS OF` NATIONAL LABOR RELATIONS BOARD
5-cent increases as an employee's work warranted. The Respondents' unilateral
changes in wage and working conditions were part of the refusal to bargain, and,
like all violations of Section 8 (a) (5), are a violation of Section 8 (a) (1) of the Act.,
C. The discriminations'
1. Blanche Roark
Blanche Roark had been employed by California from 1950 to the time it ceased
manufacturing operations on Los Angeles Street early in 1953. For her first year,
Roark was employed as a sock stitcher and after that as a platform stitcher. Dur-
ing 1952 and until California moved, in February 1953, Roark was chief shop,
steward for the Union. In late December of 1952, Roark, having heard rumors
concerning the plant that was to be set up at Venice, made inquiries of Fellman.
Fellman told her maybe he could use her later on.
On Thursday, February 5, 1953, Roark went to the Venice plant with Tutt and.
with Ruth and Ed Morris, two former California employees. The testimony of
Roark and Fellman differed to some extent regarding their conversation at that
time. It is- not clear how much of the conversation between Fellman and Roark may
have been overheard by Tutt or the Morrises. Tutt was not asked about the in-
cident and the Morrises did not testify. According to Roark, she first asked
Levitan if she could have her job back and Levitan referred her to Fellman, who
told her that he could probably use her later on and that he would call her on Sat-
urday morning and let her know when she could go to work. Roark testified that
when Fellman did not call her, she telephoned him on Saturday and he told her
he could not use her then but would call her later. In this conversation, Roark
testified, the subject of her transportation was mentioned and she told him she would
make arrangements for it. Fellman never called her. Fellman testified that when
Roark came in with Tutt she asked if he had a job for her and he said he did, that
she asked when she could come to work and he gave her a specified date,32 that
Roark, who had to travel about 12 miles to the Venice plant, then became " evasive"
and uncertain about transportation and left the matter of employment undecided.;
Fellman testified that Roark telephoned him later about employment and that he
told her he did not then have anything for her but "might possibly know something
more definite by Saturday," and if he did he would call her. Roark's testimony,
appeared to be given frankly and her demeanor on the witness stand impressed me
favorably. Fellman's memory was so hazy about certain conversations with other
people that I am not convinced it was clear in this instance. Furthermore, there
were indications in his own testimony that he was not certain that he told Roark
when to come to work. On the basis of my observation of the witnesses, I credit
Roark's version and find that before Roark received the telegraphic offer of employ-
ment, hereinafter mentioned, she was not offered employment at the Venice plant.
Fellman testified that, before starting at the Venice plant, he told Lewis that there
were certain employees of California, whom, if available, he would like to have at
the Venice plant, and he named Blanche Roark, Ed Morris, Charles Quesenberry,
Herlinda Hernandez, and Jesus Estrada. He further testified that he personally
asked Quesenberry to come to Venice and probably asked Quesenberry with regard
to Hernandez because they were "very close." Apparently those were the only
two he personally invited, but he did, on application, hire Estrada and an employee
named Annie Stamps. Fellman had not told Lewis that Stamps was one of the
employees he would like to have. None of the four last named employees (Quesen-
berry, Hernandez, Estrada, and Stamps) signed union authorization cards or paid
dues after dues ceased to be deducted under the checkoff provisions of the union
contract. Subsequently the four were suspended by the Union for nonpayment
of dues.33
At the time when Roark talked to Fellman at the Venice plant, early in February,
an employee named Louis Oster was working about half the time on platform stitch-
ing and about half on sock stitching Oster had never worked at California before.
He had been a foreman at one shop, Kay's, and before his employment at Trina in
. 32 On cross-examination counsel for the General Counsel asked, "In your direct testi,
mony you told us a little bit more You said you told her when to come to work, is
that correct?" Fellman answered, "That is, yes, very possible" Later he testified that
he told her the day she could come to work but that he could not recall what day he
gave her.
v Late in March 1953 the Union wrote letters to these four threatening discipline and
asking them to appear at a union meeting on April 1. They did not appear.
- CALIFORNIA FOOTWEAR COMPANY 797
the last of January or first of February 1953, he had been laid off at Casual's of West
Los Angeles, a union shop where he was required to be a union member. How-
ever, in February, Tutt named Oster a steward and gave him credit as such for dues,
and Oster signed a union authorization card between March 24 and 31. Linda
Murray, an employee hired by Trina in January 1953, was doing similar work on
a type of slipper that did not'require as much skill. Feliman testified that when
Roark applied in person for work in early February, he intended to use her to
replace Murray or Oster, but that, by the time she telephoned him later, Oster had
gone on platform stitching exclusively, had developed his speed on that, and to trans-
fer him then to sock stitching, on which he would have been slower, would have
adversely affected his piecework earnings, which Oster probably would not have
tolerated. After Oster went exclusively on platform stitching, various operators
were used on the sock-stitching operation at different times. Only 1 platform
stitcher and 1 sock stitcher were needed full time throughout the year. Early in
November 1953, after Roark's name had been added to the complaint, Trina
sent 'Roark a telegram offering her employment. She telephoned in reply, and
Fellman told her the rate which Trina was then paying for platform-stitching work.
The piece rate was the same as she had been receiving at California but did not in-
clude the cost-of-living bonus which California had paid. Roark, then having
other employment, declined the offer. At this time, Oster was still employed; it
does not appear what Fellman intended to do with him if Roark had accepted the
offer. At no time did Feliman offer Roark a job as sock stitcher, but he testified
that he did not know that she had had any experience except as a platform stitcher,
and Roark did not ask for any work except as a platform stitcher.
From the type and length of Roark's employment at California and from the fact
that Fellman mentioned her to Lewis as one of the employees he would like to have
at the Venice plant, I infer that she was a skilled and competent worker. Since I
have found that Trina was not an independent employer but was under the control of
California, Lewis was in a position to, and did in many instances , pass on the em-'
ployment of certain employees. If Feliman had not been influenced by Lewis, I am
satisfied that he would have offered employment to all of the employees that he told-
Lewis he would like to hire, including Roark, and that he would have made sure of
Roark's retention by making a definite arrangement with her before her work at the
Los Angeles Street plant ended. His failure to do so and his vague answers to her
inquiries about employment indicate an intention not to employ Roark but an avoid-
ance of a direct refusal to employ her. If there was work available for Roark when
she visited the Venice, plant on February 5, as Fellman admitted, I am not persuaded
that the situation would have changed materially before she telephoned Fellman on
Saturday, February 7, even if that were the first time that he told her he did not have
a job for her. In 2 days' time Oster would not have become so much more proficient
in platform stitching that he could not have been transferred to sock stitching. And
presumably the difficulty of assigning Oster to other work did not deter Fellman from
offering Roark a job in November, by which time Oster certainly would have devel-
oped speed on platform stitching. On all the evidence, I conclude that the Respond-
ents refused employment to Roark on February 5, 1953, although work was available.,
The General Counsel contends that the real reason for refusing to employ Roark
was a discriminatory one-to discourage union membership. The Respondents may
argue that any appearance of discrimination is dispelled by the fact that they em-
ployed many union members, that sock stitching was done throughout by a member
of the Union,34 that Oster, who did the platform stitching, was a union member.
As Oster had been a foreman at Kay's and as such a nonunion man, and as Casual's
had a union shop where there would be no choice of not being a member, the Re-
spondents would not necessarily think of Oster as a union advocate when employ-
ing him. At least four employees (Quesenberry, Hernandez, Estrada, and Stamps),
who had been union members at California's Los Angeles Street plant under a union-
shop contract, exhibited their preference not to be members at the Venice plant where
the union-shop agreement was not given effect; so quite evidently union membership,
at a union shop would not convince the Respondents that it proved a disposition to
advocate the Union at a nonunion shop. As for the union members who did sock
stitching, with one excepton, it does not appear how long each remained in employ-
ment, how active they may have been on behalf of the Union,35 or whether or not
"It was so stipulated As there were several employees who performed this operation
at different times, I take the stipulation to mean that each was a member or at least an
applicant for membership in the Union.
w Roark, as chief shop steward at, the Los Angeles plant, would have been known by
the Respondents as one of the most prominent and active union members
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents were aware of their attitude toward the Union when they were em-
ployed . Linda Murray was one employee who had done that work, but for what
period of time it is not shown . From Fellman 's remarks to her, it appears that he
had not known her atttiude toward the Union before Tutt showed him the names of
union applicants on March 24 , although she had then been employed for more than
2 months. From the mere fact that there were union members employed at the
Venice plant, therefore , I cannot infer a disposition on the Respondents ' part either
to be favorable to them or to be indifferent . The record is replete with evidence
that the Respondents were disposed to maintain a nonunion shop. This is evident
from the very subterfuge employed by California in setting up Trina as apparent em-
ployer while retaining substantial control, and thereafter discontinuing application
of the union contract ; from the extensive questioning of employees and applicants
for employment about their union membership , applications , or views; from Fell-
man's speech on March 23 ; from the fact that, when Tutt sought recognition for the
Union on March 24, Fellman , evidently knowing the attitude of certain employees
toward the Union, refused recognition on the basis of prior dues payments and, when
the Union made a new claim on March 31 without relying on dues payments , Fellman,
without assigning any bona fide reason, and without examining the Union 's cards, re-
fused recognition ; from Lewis ' surveillance and from innumerable other indications
to be found in the record . On all the evidence , I conclude and find that the Respond-
ents refused to employ Roark on February 5, 1953, because of her union member-
ship and -activity , thereby discouraging membership in the Union . But in view of
the fact that the Respondents failed to offer Roark employment at the Venice plant,
before her work ended at the Los Angeles Street plant and the fact that California
refused to discuss with the Union the matter of transfer of employees to the new
plant, I also find that it was California 's intent to terminate Roark's employment per-
manently at the time when the plant was moved and when Roark was given no more
work , and that this resulted from California 's desire to escape the obligation of its
contract with the Union . Thus, Roark was the object of discrimination at the end of
her employment at the Los Angeles Street plant on about January 30 , 1953, as well
as on February 5, 1953.
2. Anna C. Cherry
Anna Cherry was employed by Levitan for work at the Venice plant at noon on
Monday, March 2, 1953 , at 75 cents per hour, and until the last week of her em-
ployment she was used principally on strap cutting and "spaghetti" cutting. Spaghetti
is a thin piping, the cutting of which required no special skill. Cherry was started
on spaghetti cutting as training for strap cutting. About a week after Cherry was
hired , Levitan informed her that she would get an increase , and she did thereafter
receive a 5-cent increase to 80 cents per hour. Cherry testified that she received the
increase in her second paycheck . Fellman testified that this did not sound right to
him and that it sounded like a bookkeeping error. Cherry 's final paycheck stub
showed that she was paid at the rate of 80 cents per hour for 32 hours in each of the
last 2 weeks of her employment . The other stubs did not indicate the number of
hours. Her first week 's pay was $27 . As she started at noon on Monday of that
week, the dollar amount correctly figures at 75 cents an hour for 36 hours. Her sec-
ond week's pay was $25 .60. This would be 32 hours at 80 cents. It would not com-
pute properly at 75 cents an hour. Her third week's pay was $32 , which would fig-
ure out at 80 cents an hour for 40 hours. On the basis of Cherry 's testimony and
the paycheck stubs, I find that Cherry received her increase as she testified . The rec-
ord is not clear ' as to what the practice at the Venice plant was with respect to the
first wage increase . Linda Murray did not receive a 5-cent increase for 3 months after
she was hired . Fellman testified that that was not in keeping with the policy con-
cerning raises and that normally he considered giving a raise after 30 days. It was
stipulated that Trina's practice was to pay 95 cents an hour to employees with a mini-
mum of 3 months' experience at Trina. I infer that , within a 3 months' period after
hire, employees were given increases as their work appeared to merit it. In the last
week of her employment Cherry was assigned to work cleaning shoes.
On March 16, Cherry signed an authorization and application card for the Union.
As previously related , about March 31 or April 1, 1953, Fellman asked Cherry what
she thought of the Union . When she did not answer , Fellman said that the Union
would not do anything for the employees and it could close the shop down . Cherry
walked away without speaking.
On Thursday , April 2, at the end of the day, Fellman told Cherry not to report
the next day saying they would have to lay her off , that they did not need- her,
and that there would be no more straps for a while . Cherry asked when he would
call her and he replied that he would call her if he had anything for her. Fell-
CALIFORNIA FOOTWEAR COMPANY 799
man testified that when he laid Cherry off he had no intention of recalling her
and that he had told her there was no more work for her as "just the easiest way
out of it."
Fellman testified that Cherry did satisfactory work cutting spaghetti but that
she did not take to cutting straps, that she spoiled a great many straps, that other
employees "complained" of her work in the sense that poor cutting would show
up in any of the stitching operations, that he called her attention to it "you might
say continuously" and cautioned her on her cutting every day. Fellman also testi-
fied that, later, shoes were returned because of inaccuracy on strap cutting. He
did not know "whether she had cut the straps but it's very possible." Fellman
had no complaint about Cherry's work on cleaning shoes.
Levitan testified that Cherry's strap cutting got so bad that Fellman took her
off the job and set her to cleaning shoes. Levitan also testified that Cherry com-
plained about being taken off strap cutting and that Fellman then showed Cherry
and two other employees a basket of straps, saying, " `You see this, we can't use
this. You see this. We can't use this basket, either,' and a little box in three,
four, places." Levitan denied that these were straps spoiled at the other plant.
Fellman denied that Cherry had complained about working at cleaning.
Cherry testified that she was never criticized while cutting straps and never
spoiled any that she knew of. She testified that she had reworked some spoiled
straps which Levitan had told her they had moved from the other plant. Linda
Murray, a witness for the General Counsel, who had worked close to Cherry, testi-
fied that, after Cherry had been employed a week or two, Levitan stopped and
told Cherry she was doing fine and he was going to see about getting her a nickel
raise. Murray testified that Cherry was very fast and that her work was of gen-
erally good quality. On cross-examination Murray was asked whether or not there
were instances when straps that Cherry had worked on had to be done over. Murray
answered, "No, sir, they come from the California Footwear. . . . They weren't
what she cut."
It is undisputed that strap-cutting work ran out temporarily at the time Cherry
was transferred to cleaning in the last week, but Fellman testified that he would
have taken Cherry off of strap cutting sooner if there had been more in sight. He
also testified that Cherry was not suited to cleaning shoes and that that was why
he laid her off, but he could not recall why she was unsuited. In one answer,
Fellman indicated that as they could not use Cherry where he wanted to use her,
there was in his judgment no place for her.
Linda Murray testified that practically all the other employees who cleaned shoes
after Cherry left were union members or applicants. The girl who was used on
strap cutting when it was next done had also signed a union application card.36
The Respondents' evidence concerning the excessively poor work that Cherry
did on strap cutting was not convincing. I do not doubt that Cherry was respon-
sible for some spoilage, but this was not uncommon. If Cherry had been as
bad as she was portrayed, I am convinced that she would have been taken off
the strap-cutting job before that work ran out,37 and the fact that she was given
an increase so soon after she was hired is inconsistent with the criticism which
was leveled at Cherry at the hearing It is conceded, however, that Cherry was
discharged at a time when she was on the job of cleaning shoes. No fault was
found in her work at that job. The Respondents did not assert that there was a
drop in the amount of cleaning to be done and that, consequently, one employee
had to be laid off. The record does not indicate how many employees were doing
that work before and after Cherry's discharge. But payroll exhibits in evidence,
which were supplied by the Respondents, indicate that the names of 4 employees
who were on the payroll on March 24 were not on the payroll on March 31 and
that 4 new names appear on the payroll on the latter date. This would indicate
an equal replacement. However, Cherry's name, as 1 of the 4, was omitted from
the exhibit purporting to show the payroll on March 31 although she actually was
not discharged until April 2.38 Taking this error into account, I note that on
36 This was Ruth Seaton, whose card bears the date of January 3
31 Such evidence as appears in the record indicates that the Respondents carefully
watched and guarded against waste It would have been contrary to their nature to
keep on a job an employee who was causing excessive waste as they kept Cherry on until
strap cutting ran out.
88 Can it be that the Respondents actually believed that Cherry had been terminated
at the conclusion of her work on strap cutting and that that explains why they came
prepared with a ground for discharging her from that job but had no explanation for her
discharge from the cleaning job?
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 31 there were only 3 old employees gone, while there were 4 new employees.
The record does not reveal to what jobs the new employees were assigned, but as there
was no strap cutting at that time it was not for that job. And apparently it was not
for one of the more skilled jobs since the skilled workers identified were still there.
Cherry would appear to have been as competent as any of the new employees on
nonskilled work.
The proximity of time between Fellman's questioning of Cherry about her atti-
tude toward the Union and her discharge, the currency of the question concern-
ing representation, and the changes in the payroll, combine to create a strong
suspicion that the Respondents hired new employees and discharged Cherry in
order to prevent the Union from getting a majority. But to carry the evidence
beyond the realm of suspicion to proof it would be necessary to show that the
new employees were still on the payroll on April 2 and that Cherry was replaced
at the cleaning job by a new employee. This does not appear. So far as appears,
no one replaced Cherry at cleaning. It is just as possible to infer that Cherry was
discharged because there was no need for her services as to infer that she was
discharged to keep the Union from getting a majority. The fact that Cherry was
discharged rather than laid off, despite what Fellman told her, also creates some
suspicion, but the evidence does not indicate that the Respondents made it a prac-
tice always to recall laid-off employees before hiring new ones, or that they never
laid an employee off with intent not to recall, so the mere fact that at the time
of Cherry's layoff Fellman intended not to recall her is not shown to be unusual.
For want of sufficient proof, I find that Cherry was not discriminated against.
3. Jack Rosenthal
Before Jack Rosenthal was employed at the Venice plant he had a period of em-
ployment at California ending some 4 years earlier. In early December or late
November 1952, Lewis telephoned Rosenthal and asked him to return, but Rosen-
thal said he was satisfied with what he was doing. However, about 2 or 3 weeks later
Rosenthal telephoned Lewis and asked if the job was still open. Lewis replied
that it was and told Rosenthal to come down to see him. When Rosenthal got to
the Los Angeles Street plant Lewis said he did not have an opening at that time
but that there would be an opening at another plant near Lewis' home. Rosenthal
testified that he asked Lewis, "What part of the place [the Venice plant] do you
own?" and that Lewis answered that he owned all of it. Lewis denied that Rosenthal
asked or that he answered as Rosenthal' testified. I am not convinced that the
question or answer was phrased as Rosenthal put it, but when Lewis was assuring
Rosenthal a job at another plant not far from his home, it would be the most natural
reaction for Rosenthal to want to know how Lewis could give that assurance. I
find that, in some form, Rosenthal asked Lewis' connection with the Venice plant
and Lewis indicated that he had an interest which would enable him to speak for it.
Rosenthal went to the Venice plant and talked with Fellman, who hired Rosenthal
at $1.75 an hour for the first month. After that Rosenthal was put on a piecework
rate. Rosenthal testified that, after Fellman had fixed his initial rate, all later
changes in rates he discussed with Lewis.
Rosenthal attended a union meeting on March 26, 1953. At the meeting, Tutt
inquired whether threatening remarks had been made to anyone there and Rosen-
thal told Tutt that he was one to whom such a remark had been made. After the
meeting that evening, Rosenthal signed a union application and authorization.
On April 6, the Respondent hired a second clicker-machine operator, Eugene
Piasek. Whereas Rosenthal had done some overtime work before Piasek was hired,
he did none afterwards.
The material customarily cut at the Venice plant was plastics, felts, and com-
positions. About mid-April, Fellman said to Rosenthal, "You haven't cut very much
leather, have you?" Rosenthal said that he had cut certain types, but Fellman
concluded that Piasek had had more experience on cutting leather than Rosenthal.
On April 28 Rosenthal was laid off. Fellman told him to come back in 2 or 3 days
and there would be. work for him. Rosenthal testified that, when he was laid off,
Lewis told him that there was no work for either him or Piasek. Albert Lewis
told Piasek to come in at 10 a. m. on the day following Rosenthal's layoff. Piasek
.testified that he did so and, when he came in, Albert told him the reason he had
told Piasek to come in at 10 a. in. was because "I fired Jack Rosenthal last night."
,Albert was not asked specifically if he had told Piasek to come in at 10 a. m.
the next day or if he had explained his reason for this the next day by saying it was
CALIFORNIA FOOTWEAR COMPANY 801
,because "I fired Rosenthal last -night." 39 Despite the lack of a specific -denial, I
,am skeptical that such an explanation was made to Piasek. There is an apparent
,suggestion in this testimony that the Respondents were trying to deceive Rosenthal
into believing that there was no work for Piasek either so that Rosenthal would
.not know that Piasek had been retained to cut leather while he had been laid off.
But Rosenthal would not be expected to be in the day after his layoff; so he would
not have seen Piasek even at 8 a. in., the customary starting time. As Fellman told
Rosenthal to come back in 2 or 3 days, Rosenthal would be expected to see (and
,did see) Piasek working at that time. No attempt was made to conceal it. Further-
more, Piasek testified on cross-examination that Lewis brought him 150 pair of
'leather material to cut the day before Rosenthal was laid off. Obviously, Rosenthal
could have seen then that the leather had been given to Piasek to cut. I do not
doubt that Piasek was told to come in at 10 a. m. or that he was told the next day
that Rosenthal had been laid off, but I find that no connection between the two
was mentioned. Piasek also testified that a day after the day that he started at 10
a. m., Lewis came over to his machine, that he asked Lewis why Rosenthal was
not working any more, and that Lewis said that Rosenthal "made too much trouble
here, and to him [Lewis], for the union." Piasek corrected this to "made too
much trouble by the union." Lewis denied that he told anyone that Rosenthal was
fired for union activity. Actually Rosenthal was not particularly active in the
Union. I doubt that Lewis would have made a remark in the form in which
Piasek put it. Piasek's testimony about the remark indicated some confusion. I
find that Lewis did not make the quoted statement.
A few days after his layoff, Rosenthal returned to the plant and spoke with Fell-
man. Rosenthal testified that Fellman told him that all the cutting would be leather
from then on and that he did not feel that Rosenthal was experienced enough to
cut leather. Fellman denied saying that all the cutting would be leather from then
on. Insofar as the form of the quotation implies that there would never be more
plastics to cut, I credit Fellman's denial Rosenthal tried to argue and asked for
a tryout but Fellman refused and told Rosenthal; "When we can use you, we will
.send for you." Fellman explained that he refused to give Rosenthal a test because
he already had an experienced man (Piasek) to do the work. Fellman testified that
200 pairs of leather parts could be cut in less than a day and that there were from
2,000 to 5,000 pairs to be cut. After Rosenthal left, Piasek worked extra hours,
putting in as much as 50 or 55 hours in some weeks, including work on a number
of Saturdays in a 2-month period.
In late May, Fellman sent Rosenthal a telegram asking him to return. Rosenthal
went to the Venice plant in response and told Lewis and Fellman that he was "tied
-up right now" but would know in a few days whether the "deal" that he was working
on would materialize, and he said that if it did not, he would return to work. Accord-
ing to Fellman's credited testimony, Rosenthal asked if the job would still be open
and Fellman said that they did not contemplate putting anyone on it for the next
couple of days. Three or four days later Rosenthal told Fellman that his deal fell
through and he wanted to return to work. Fellman told them that they needed him
3 or 4 days before but did not need him then. According to Fellman, work fell off
for some reason in the interim. On November 23, 1953, the Respondents put Rosen-
thal back to work. The occasion for this is interwoven with the circumstances of
,the discharge of Eugene Piasek, hereinafter related.
It is apparently the General Counsel's theory that the Respondents laid Rosenthal
off, intending not to recall him, because in some manner they learned that Rosenthal
on March 26 had offered to the Union, at the meeting that evening, evidence about
a supposed threat made by management. If this is the case, the Respondents waited
a long time before giving effect to their intent, for Rosenthal was not laid off until
late April. It is suggested that there was in fact work for two cutters after Rosenthal
was laid off and that absent a discriminatory motive the Respondents would have
employed Rosenthal. But the only evidence of the quantity of work on hand is that
;Piasek did overtime work after Rosenthal left whereas neither had worked overtime
when-he was there. But even if Piasek had worked as much as 55 hours in 1 week,
which was his estimate of the greatest number of hours worked and which would
not have been a constant figure, this is a long way from proving that there was
'enough business for 80 hours of work a week which would be necessary for 2
employees. It may be noticed that before Piasek was hired, Rosenthal had done
overtime work' himself, proving that the Respondents had periods when one man
working somewhat long hours was capable of handling the volume of work on hand.
a9 Counsel for the Respondents asked Albert if lie had told Piasek that his father (Jack
Lewis) had told him that Rosenthal was flied because of the Union. '' . '
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel appears to suggest that the only reason why Trina called
Rosenthal back to work at the end of May, after the third amended charge; which
included Rosenthal's name, had been filed, was to stop the running of back pay in
the case of a discriminatory discharge. If the initial layoff was not discriminatory,
the fact that the Respondents might not have offered Rosenthal employment in May
but for the fact that a charge was filed cannot, ex post facto, convert an economic
layoff into an unfair labor practice. The third amended charge mentions the fact
that Rosenthal was laid off although he had more seniority than the cutter retained.
Whatever obligation California had under its union contracts and regardless of the
fact that failure to give consideration to seniority might be a breach of contract,
that would not alone prove a discriminatory motive or a violation of Section 8 (a)
(3) of the Act. On all the evidence, I find that the Respondents did not discriminate
with respect to Rosenthal's hire or tenure of employment because of his union mem-
bership or activity and that Rosenthal was in fact laid off because Fellman believed
Piasek to be more experienced in cutting leather.
4. Eugene Piasek
Piasek was interviewed for employment by Fellman and Lewis at the Venice plant
on April 3, 1953. As previously related, Lewis asked Piasek about his membership
in the Union, and Piasek, who was a union member, falsely stated that he had had
difficulties with the Union and had been expelled. Lewis told Piasek to come back
the next day, Saturday, and they would see how he could cut. Piasek worked from
9 a. in. to 1:30 p. in. on Saturday. Then Fellman took Piasek to the office and told
Lewis that Piasek was "cutting reasonable." Lewis gave Piasek the piecework rates
and told him to come back on Monday, April 6.
Piasek attended two union meetings, the first on about April 14, when Lewis was
parked across the street from the meeting place as related earlier herein, and the
second on about May 12. According to Piasek's testimony, the Respondents were
aware of his attendance at each meeting.
During a part of July or August 1953, the Venice plant closed down. After the
plant closed, at a time not disclosed by the record, Piasek got a job at another plant.
Between the time of the shutdown and the month of October, Piasek returned once
or twice. He returned again on or about October 14 and talked to Lewis. Piasek
testified that Lewis told him to quit the job he was on (Lewis denied this) 40 and
return to work the following week. He also testified that he quit his other job as
of October 16, but he made no mention of having gone to the plant on that day or
on Monday, October 19 He merely testified that he went to the Venice plant on
Friday, October 23. Meanwhile, in mid-October, Martin Zell was hired. Zell had
been lasting room foreman at another shoe factory and he was hired with the idea
that he might become a supervisor at the Venice plant. Zell, a laster, had had some
experience on cutting, but I would judge that he was not as experienced a cutter as
Piasek. When Piasek came to the Venice plant on October 23 and saw Zell working
at the cutting machine, he told Fellman that Lewis had told him to quit his job
but had hired another cutter. Fellman said that Zell had not been hired as a cutter
but as a supervisor, and he told Piasek to see Lewis. Piasek went to Lewis and com-
plained in the same fashion. Lewis also told Piasek that Zell had not been hired as
a cutter but had been hired as a supervisor. After talking for a while, Lewis told
him to wait while he went to speak to someone. According to Piasek's undenied
testimony, Albert Lewis came in and said, "You see, Gene, my father didn't want
to take you back but I made him take you back." Then Lewis returned and told
Piasek to call the next day and he would tell him when to come to work. Piasek
telephoned Lewis the next day and Lewis told him to come to work on Monday,
October 26. Piasek did so and worked the full 5-day week, and the first 3 days of the
following week. On Wednesday evening, November 4, Piasek was told to come in
the next day as some sponge rubber was coming in to be cut. On Thursday, Novem-
ber 5, the day when the Respondent complied with the subpoena daces tecum in this
case, Lewis and Fellman went to the hearing. That morning at the plant, Albert
told Piasek that his father had said he (Piasek) was not to do any cutting that day
but would start the following Monday. Piasek did not leave immediately, and at 8:30
a. in. he saw Albert take the sponge rubber to Zell at the machine Piasek used and
saw Zell start to work on it.
On Tuesday, Thursday, and Friday, November 10, 12, and 13, Piasek was in the
hearing room waiting to be called to the witness stand. On Armistice Day, Novem-
ber 11, no hearing was held, but the plant was operating. Piasek testified that he
40 Lewis testified he told Piasek to keep his job "until we started up again."
CALIFORNIA FOOTWEAR COMPANY 803
-went- to the plant that day and Lewis called him into the office and asked him
why he had to testify against him. Piasek testified that he replied, "Listen, Jack, you
do such unfair labor practice over here . . . everybody wants to testify against
you. This is the truth. . . . You told me to quit a job. I am a cutter, then you hired
Martin Zell and put him on the cutting machine and you dismissed me ... which isn't
fair." He further testified that Lewis asked, "Why didn't you tell me?"; that he
replied, "You're the boss, I am just the employee. I can't tell you what to do";
and that Lewis said, "I will fire him [Zell] at the end of this week." Lewis denied
that there was such a conversation, that there "couldn't be any conversation to that
effect because during that period when he was working there there was not a
proceeding going on and he wasn't called to testify and I had no way of knowing
what the testimony would be. I couldn't tell one way or another whether he would
testify for me or against me or which way.. " Of course, Lewis would have
known that on November 10 Piasek was in the hearing room not because he was
called as a Respondents' witness, and he could have inferred that Piasek was called
by the opposite side In any event, from observing the witnesses as they gave
this testimony, I find that the conversation took place substantially as testified by
Piasek.
On Friday, November 13, at the hearing room, Lewis asked Piasek if he would be
able to start cutting on Monday, and Piasek replied that he would if he were called
to testify that day (Friday) but otherwise he would start working on Tuesday.
On Saturday, November 14, Lewis telephoned Herman Greenberg, who had
been a cutter at the Los Angeles plant for 3 years until January 1953. Lewis asked if
Greenberg was working. Greenberg replied that he was and asked if Lewis had
"straightened out" with the Union. Lewis answered that he expected to the next week
and that then they could get together again.41 I infer that Lewis, having learned that
Piasek had not changed his intent to testify, was looking for a cutter to replace
Piasek.
Piasek was not on the witness stand until Monday, November 16. On Tuesday,
November 17, after he had given his testimony, Piasek went to the plant. When
he walked through the office into the packing room he was met by Levitan who told
him that they did not need him then, that if they wanted a cutter they would call
him. Piasek testified that as he walked back through the office, Albert came over
to him and the following conversation took place: Albert said, "Gene, my father
and Joe Levitan are sore at you because you testified against him." Piasek said,
"Listen, Albert, I testified the truth, didn't l? I didn't lie." Albert said, "Yes, you
testified the truth but you know how my father is." Albert denied that any such
conversation took place. T have no doubt that Lewis and Levitan were displeased
with Piasek's testimony, but I do have some doubt that Albert was so naive as to
tell Piasek that, and I doubt that the conversation, if it occurred, would have been
in the form testified to by Piasek. I make no finding that the conversation occurred.
On the weekend of November 21, 1953, Fellman and Lewis met with Respondents'
counsel at the Venice plant As a result of the discussion they had there, Fellman,
on the same day, sent a telegram to Jack Rosenthal recalling him to work.
On Monday morning, November 23, Piasek went to the Venice plant and saw
Rosenthal waiting to start work. Piasek went to Levitan and berated him for not
having told him the week before that he was discharging him instead of leaving
him uninformed as to his status. Levitan told Piasek that he did not know any-
thing and that he should see Fellman.
At the hearing on November 23, the General Counsel rested, and Respondents'
counsel made certain motions, among them a motion to dismiss as to Rosenthal.
41 This finding is based on Greenberg's credited testimony. On the Respondents' case,
Lewis denied that he had called Greenberg He testified that Greenberg had called him
about work early in 1953, but not in November, and that he had not heard from Greenberg
for 5 or 6 months But earlier, when called as a witness for the General Counsel, although
denying that he had called Greenberg, he testified that in the fall of 1953 Greenberg had
called hun In response to the General Counsel's question as to whether Lewis, in that
telephone conversation, had said, "Maybe we will get together again in a week or two
and you can go to work for me," Lewis answered, "In essence it might have been but in
actual conversation did not He just wanted to know what was doing in the plant and
if we were busy and so on and so forth and did we straighten it out as far as the union
was concerned and I told hun we were in the midst of the hearing right now and I
couldn't very well tell him one way or another and that is all " The inconsistency in
the two portions of Lewis' testimony is obvious. As Greenberg had another Job, it is
unlikely that he would have called Lewis at all, much less to call for the limited con-
versation testified to by Lewis. '
387644-56-vol. 114-52
-41
804 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
In the course of his argument on this motion, he announced that Rosenthal had re-
turned to work that morning, that there was work for only one cutter- Rosenthal
or Piasek. It was not then specifically stated whether Piasek was discharged or
laid off, but in the answer to the supplemental complaint, stated orally on the record
on January. 5, 1954, the Respondents denied the allegation that Piasek was dis-
charged as alleged.
The Respondents take the position that, as the amended consolidated complaint
alleged that Rosenthal was discharged discriminatorily on April 28, 1953, and as
the General Counsel had not acknowledged, before November 21, nor in fact before
December 4, 1953, when counsel for the General Counsel wrote a letter to Respond-
ents' counsel 42 that Rosenthal had lost his right to reinstatement after he was offered
employment in the latter part of May, the Respondents were required to decide
whether or not it was advisable, even though they thought Rosenthal was not dis-
criminated against, to cut off any possibility of further back pay and, having decided,
on advice of counsel, on the weekend of November 21, that it would be advisable,
they immediately recalled Rosenthal and that Rosenthal's return necessarily elimi-
nated Piasek. On the record, I find that Respondents' counsel had, before December
4, 1953, some reason to believe that the General Counsel was not conceding that
Rosenthal's right to reinstatement was cut off in May 1953. The question to be
decided is whether or not the reason given by the Respondents was the one which
actually motivated them in replacing Plasek with Rosenthal. Doubt that it was
arises from (1) the fact that the Respondents delayed so long in making the decision
to offer reinstatement to Rosenthal, (2) the fact that Lewis and Levitan were ob-
viously displeased with Piasek's testimony and gave him no more work after he
had testified, and (3) the fact that the Respondents presumably made their decision
to employ Rosenthal over the weekend and quickly acted on it, knowing that the
action would be viewed with suspicion, and not taking the trouble to consult with
the General Counsel's representative concerning the move 43
With respect to the first point-the long delay-it may be noted that the Respond-
ents did offer Rosenthal reinstatement in May after the filing of the charge of dis-
crimination against him. If there had been a discrimination against him, that uncon-
ditional offer would have terminated the Respondents' responsibility when Rosenthal
failed to accept it. Of course, a new unfair labor practice might have arisen if the
Respondents, having work for him, discriminatorily refused him employment a few
days later when he offered his services, But if the Respondents were concerned
with this point, they apparently gave no thought to the replacement of Piasek with
Rosenthal as a solution until after Piasek had given his testimony. It might be
argued that it was Piasek's testimony that made it appear that the refusal of employ-
ment to Rosenthal when he applied for work after his deal fell through was an
•unfair labor practice. I am not persuaded that this argument has much force. All
the evidence indicated that, with the exception of two short periods when Fellman
or Zell did cutting, the Respondents had managed with one cutter-Piasek. The
Respondents might, at those times, have eliminated any question of back pay to
Rosenthal by recalling him to do that work, but apparently it was not considered
important enough to do so. Likewise, after the summer layoff and after Piasek
had gotten another job, they could have explained to him that they deemed it
advisable to take Rosenthal back in order to safeguard themselves against the
possibility of increasing back pay for Rosenthal. In sum, there were several other
ii This letter, after the opening paragraph reads :
In view of the fact that employee Jack Rosenthal turned down an unconditional
company offer of reinstatement in May of 1953 (a fact undisputed in the record) it
is the General Counsel's position that he thereby lost his right to reinstatement by
reason of the alleged Section 8 (a) (3) violation. Of course, said former employee,
should he apply for employment in the future, is entitled to non-discriminatory
consideration as a new applicant for employment.
We urge the companies, through you as their attorney, to immediately reinstate
Eugene Piasek to the position of cutter, and invite you to participate with us in a
case settlement conference at your earliest convenience. Pending such conference,
and apart from it, we urge the immediate reinstatement of Eugene Piasek and, in
that connection, we assure you that the General Counsel does not make, and at no
time has made any claim that cutter Jack Rosenthal is entitled to reinstatement (or
back-pay after date of unconditional offer) by reason of the alleged Section 8 (a) (3)
discrimination
43 Counsel•for the hespondenfs testified that he would not have known how to get in
-touch with counsel• for the General Counsel during the weekend.
CALIFORNIA FOOTWEAR COMPANY 805
:times when it would have been more logical for the Respondents to recall Rosenthal,
if they were going to, than the time they actually did.
Evidence of the Respondents' displeasure with Piasek is found in the Armistice
Day conversation between Lewis and Piasek, Lewis' action on the following Saturday
to see if Greenberg was available as a cutter, Levitan's refusal to permit Piasek to
work at all following the- day he testified, and, without notice to Piasek, re-
calling Rosenthal to take Piasek's place. When Levitan told Piasek on November
17: "Listen, Gene, we don't need you now. If we need a cutter we will call you,"
'Piasek apparently interpreted the statement as a temporary layoff. I interpret it,
in the light of all the evidence, as a complete termination.
With respect to the apparent suddenness of the decision to recall Rosenthal without
consulting with counsel for the General Counsel, it is significant that in testifying
.about the conference which Perkins, Lewis, and Fellman held at the plant on the
weekend of November 21, Fellman did not testify that any question was raised by
Lewis or Fellman concerning the discharge or layoff of Piasek. Fellman testified:
"It was a very brief thing, a question of who to hire and who to call back for the
cutting and asking Mr. Perkins if he thought it advisable to call Mr. Rosenthal back."
Perkins testified about the conference: "The question of putting a cutter to work
came up. I don't recall exactly how but I think I probably asked in view of the
testimony going on here whether there was any work for a cutter, and, if so, what
kind, and what kind of material they were running." Perkins did testify: " . I
-believe it was stated to me that except for this suggestion of mine about taking
Rosenthal back that Trina was going to call Piasek back. I think that information
came up when I was asking him what cutting work there was to be done and
what the prospects were and I believe I was informed by Mr. Fellman or by some-
body there that there was some cutting work to do and it was intended to call back
Piasek." Later when asked whether he had taken into account, in making his
recommendation, the position that the General Counsel might take with regard to
Piasek in the event he were discharged and Rosenthal were rehired, Perkins replied:
"Well, I believe I considered that. At the time I gave the advice, I don't know
that it was discussed." Failure to take the question up with counsel for the General
Counsel before acting on the-decision appears particularly significant. The fact that
the matter could not have been discussed with the latter before Monday morning,
November 23, is a weak excuse since the delay of an additional day after such a
long delay up to that time- would have meant little in the way of additional
liability for back pay for Rosenthal, especially in comparison to the amount that
might be involved if Piasek were found to have been discriminated against. Unless
the Respondents had already discharged Piasek in anger because of his testimony at
the hearing and were adamant in opposing his further employment, I cannot believe
that counsel would have permitted them to run the risk that could be avoided by
waiting until Monday morning.
After the filing of the charge with respect to Piasek, the General Counsel notified
Respondents' counsel of his position regarding Rosenthal and Piasek, stating that
the May 1953 offer to Rosenthal was deemed to cut off back pay for him and
urging reinstatement of Piasek. The request was refused, although it was apparent
that, if any back pay were to be involved, it would then be for Piasek and not
for Rosenthal.
On all the evidence in the case, I am convinced and find that Piasek's employment
was terminated on November 17, 1953, the day following his testimony in the
hearing in this case and not on the following weekend when Rosenthal was recalled.
At the time of the weekend conference, I find that the question raised was not
whether Piasek should be discharged and Rosenthal recalled, but what the Respond-
ents were to do about getting a cutter for a position already vacant. Although
Perkins was not positive about it, there may have been some discussion about Piasek.
The fact that Rosenthal was out of work and that the unfair labor practice charge
involving him had not been settled offered an appealing solution to the problem. I
am convinced and find that, but for the Respondents having already discharged
Piasek for having testified against them, the Respondents would not have recalled
Rosenthal when they did. I find, therefore, that by discharging Piasek on November
17, 1953, the Respondents discriminated against him in violation of Section 8 (a) (3)
and (4) of the Act.
The supplemental complaint, as amended at the hearing, also alleges that Piasek
was discriminatorily laid off on October 16 and 19-23, inclusive, and on November
5, 6, 9, and 11, 1953. I have found no evidence that Piasek presented himself for
work at the Venice plant before October 23. As a result of his conversations that
day and the next, he was started to work on Monday, October 26. I find no evidence
•of discriminatioh or even a layoff in October: ` Piasek was laid off on November 5
806 ' DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
,and 6 but was told to report back to work on November 9 and , so far as the record
discloses , he may have done so. It is apparently the theory of the General Counsel
that the layoff on November 5 and 6 was discriminatory because the available cut-
ting work was given to Zell instead of to Piasek. By November 5, Zell, who had
been started on a piecerate basis, was getting a salary of $85 a week, apparently
having been given supervisory status. Piasek was paid on a piecework basis.
Because Zell had to be paid his salary whether or not there was work for him, the
Respondents may have deemed it more economical to let him do the cutting work.
If there was any discrimination against Piasek on those days , it does not appear
to have been motivated by his union membership or activity . Piasek appeared at the
hearing on Tuesday , November 10. He was at the plant on November 11, the day
Lewis called him to the office to ask Piasek why he had to testify in the 'Case.
Piasek did not testify that he did not work on that day and there is no other evidence
thereon. I find, therefore , that Piasek , was not discriminatorily laid off before
November 17.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in
connection with the operations of the Respondents 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents engaged in certain unfair labor practices, I
shall recommend that they cease and desist therefrom and that they take certain
affirmative action designed to effectuate the policies of the Act.
California served notice of termination of its contract with the Union on the
expiration of a year after its effective date. It may be argued that it was under
no duty thereafter to bargain with the Union without proof of a majority. How-
ever, I have found that the Respondents ' unfair labor practices had the effect of
undermining the Union and of dissipating its majority . The situation prevailing
before the commission of the unfair labor practices can be restored only if the
Respondents are required to recognize and to bargain with the Union. Trina was
acting as an agent or alter ego of California . As this relationship was terminated
on January 1, 1954, and as Trina has not been shown to be acting on California's
behalf thereafter or even shown to be in operation since that date , I shall limit the
recommendation to bargain to the Respondent California and its partners , agents,
successors , and assigns , except to the extent that Trina may hereafter act on behalf
of California.
It is the contention of the General Counsel that the remedy should include a res-
toration ab initio of wages, rates, and other conditions called for by the Union's col-
lective-bargaining contract, which terms and conditions were unilaterally changed
by the Respondents. I have found this unilateral conduct to be a violation of both
Section 8 (a) (1) and (5) of the Act, but I have grave doubts of the propriety of
such a remedy as that suggested by the General Counsel. Specific losses to individ-
ual employees as a result of such changes have not been shown, and I do not believe
it wise to require action of unascertained limits. Normally, damages for breach of
contract are determined in a court action, and section 301 makes it possible for a
union to sue for such damages in Federal Courts where proof may be offered of
specific losses or damages. Although a breach of contract may be also an unfair
labor practice, I do not believe it would effectuate the policies of the Act to disregard
the borderline between the two. Furthermore, if the parties comply with the recom-
mendation to bargain herein made, it is conceivable that they may work out a solu-
tion which will more appropriately settle the dispute than an order in general terms
would do I shall, therefore, make no recommendation with respect to retroactive
restoration of contract terms.
Both Respondents were employers at the time of the discriminations against Roark
and Piasek . But as Trina is not shown to be in business and no longer has any con-
nection with the plant where Roark and Piasek were entitled to employment, only
California would have control over their positions. Therefore, I shall recommend
that California offer them reinstatement to their former or substantially equivalent
positions 44 without prejudice to their seniority or other rights and privileges. Both
44 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Bhauch,
65 NLRB 827.
CALIFORNIA FOOTWEAR COMPANY 807
Respondents are, however, responsible for any loss suffered by Roark and Piasek as
a result of the discrimination against them, and I shall recommend that the Respond-
ents jointly and severally make them whole for any loss suffered by them by paying
to each a sum of money equal to that which he would normally have earned from
the date of the discrimination against him to the date of the offer of reinstatement 45
less his net earnings 46 during such period. Such sums are to be computed on a
quarterly basis in accordance with the Board's established practice.47
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make, the following.
CONCLUSIONS OF LAW
1. United Shoe Workers of America, Local 122, 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 employment of Blanche
Roark and Eugene Piasek because of their union membership and activities, thereby
discouraging membership in the Union, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Eugene
Piasek because he gave testimony in the hearing in this case, the Respondents have
engaged in and are engaging in an unfair labor practice within the meaning of Sec-
tion 8 (a) (4) of the Act.
4. All production workers employed in the California Footwear Company plant
at 253'South Los Angeles Street, Los Angeles, California, prior to February 1, 1953,
and all production workers employed,,af the Respondents' plant at 222 Main Street,
Venice (Los Angeles), California, since February 1, 1953, excluding executive, ad-
ministrative, sales, clerical, maintenance employees, truckdriver, guards, and profes-
sional and supervisory employees as defined in the Act, constitute an appropriate
unit for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act
5. United Shoe Workers of America, Local 122, is now, and at all times mate-
rial herein has been, the exclusive representative of all the employees in the above-
described unit for the purposes of collective bargaining within the meaning of Sec-
tion 9 (a) of the Act
6. By refusing to bargain collectively with the Union, the Respondents have en-
gaged in and are engaging in unfair labor practices within the meaning of Section
S (a) (5) of the Act.
7. By the foregoing conduct and by interfering with, restraining, and coercing
their employees, the Respondents have engaged in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
8 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
9. The Respondents have not discriminated in regard to the hire and tenure of
employment of Anna Cherry or Jack Rosenthal.
[Recommendations omitted from publication.]
45 The period of discrimination in Roark's case is February 1 to about November 1, 1953,
the date when she was offered reinstatement , in Piasek's case, from November 17, 1953,
to the (late on which California shall have offered him reinstatement. Tuna's liability to
Plasek shall not extend beyond January 1, 1954, when it severed its connection with
California and ceased doing business
49 Crossett Lumber Company, 8 NLRB 440, 497-8. See also Republic Steel Corporation
v N L R B, 31111 S 7.
47 F W. TVoolwoi tie Company, 90 NLRB 289, N. L R. B. v. Seven-Up Bottling Coinpany
of Miami, Inc, 344 U. S 344.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, the undersigned California Footwear Company and (to
the extent that it may have acted, or may in the future act, on behalf of California
Footwear Company) Trina Shoe Company hereby notify all employees at the plant
at 222 Main Street, Venice, California, that:
WE WILL NOT discourage membership in, or activities on behalf of, United
Shoe Workers of America, Local 122, or any other labor organization, by
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminating in regard to the hire or tenure of employment or any term or
condition of employment of any employee.
WE WILL NOT discharge or otherwise discriminate against any employee be-
cause he has filed charges or given testimony under the Act.
WE WILL- NOT in any other manner interfere with , restrain, or coerce our
employees in the exercise of their right to self-organization , to join or assist
United Shoe Workers of America, Local 122, or any other labor organization,
to bargain collectively through representatives of their own choosing , to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities , except
to,the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment , as authorized
in Section 8 (a) (3) of the Act.
WE WILL bargain collectively, upon request, with United Shoe Workers of
America, Local 122, as the exclusive representative of all our employees in
the bargaining unit described below concerning wages, rates of pay, hours of
employment , and other conditions of employment. The bargaining unit is.
All production workers excluding executive , administrative, sales, clerical,
maintenance employees , truckdriver, guards, and professional and super-
visory employees , as defined in the Act.
WE WILL offer Eugene Piasek immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to his seniority and other
rights and privileges.
WE WILL make whole Blanche Roark and Eugene Piasek for any loss of pay
they may have suffered by reason of the discrimination , against them.
All our employees are free to become, remain , or refrain from becoming or
remaining members in the above -named Union or any other labor organization,
except to the extent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the Act.
CALIFORNIA FOOTWEAR COMPANY,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) ( Title)
TRINA SHOE COMPANY,
Employer.
Dated---------------- By----------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced, or covered by any other material.
Oriole Motor Coach Lines, Inc., t/a Washington Suburban Lines
and Division of 689, Amalgamated Association of Street, Elec-
tric Railway and Motor Coach Employees of America, AFL
Thomas Parran , Jr., t/a Silver Spring Transit Company and
Division 689," Amalgamated 'Association of Street , Electric
Railway and Motor Coach Employees of America , AFL. Cases
Nos. 5-CA-697, 5-CA-725, 5-RC-1133, and 5-CA-823. October
31,1955
DECISION AND ORDER
On August 25, 1953, Trial Examiner Martin S. Bennett issued his
Intermediate Report finding that Respondent, Oriole Motor Coach
Lines, Inc., t/a Washington Suburban Lines (Cases Nos. 5-CA-6911
114 NLRB No. 129.