Chesapeake Shoe Manufacturing Company

National Labor Relations Board - Board Decisions

May 12, 1939

12 N.L.R.B. 832 (N.L.R.B. 1939)

In the Matter of CHESAPEAKE SHOE MANUFACTURING COMPANY and
UNITED SHOE WORKERS OF AMERICA
Case No. C-554 .-Decided May 12, 1939
Shoe Manufacturing Industry-Interference, Restraint , and Coercion : hire of
employee to assist in destroying union ; shut-down of factory to discourage
membership in union-Unit Appropriate for Collective Bargaining : production
and maintenance employees , excluding supervisory, clerical employees and
watchmen , no controversy as to-Representatives : no controversy as to-Col-
lective Bargaining : refusal at commencement of negotiations to sign an agree-
ment, if reached ; participation in deceiving union into believing agreement had
been reached ; denial to union of any credit for its achievements ; refusal to
union representatives of what it was willing to and immediately thereafter did
offer to individuals-Discrimination : discharge of union leader and refusal to
reinstate him except on condition that he relinquish union activities and on
further condition that employees be informed that neither union nor Board
was responsible for reinstatement ; charges of, not sustained as to another em-
ployee-Strike-Conciliation : efforts at, by Maryland State Labor Commis-
sioner-Reinstatement Ordered: employee discriminatorily discharged-Back
Pay: awarded.
Mr. Reeves R. Hilton and Mr. Jacob Blum, for the Board.
Mr. Randolph Barton, Jr., Mr. F. Fulton Bramble, and Mr. Harry
0. Levin, of Baltimore, Md., and Mr. John W. Maher, of Washington,
D. C., for the respondent.
Mr. Jacob J. Edelman, of Baltimore, Md., and Mr. James J.
Mitchell, of Washington, D. C., for the Union.
Miss Fannie M. Boyls, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Frank J. Bender,
regional director for the Committee for Industrial Organization in
the State of Maryland, the National Labor Relations Board, herein
called the Board, by Bennet F. Schauf ler, Regional Director for the
Fifth Region (Baltimore, Maryland), issued its complaint, dated
February 25, 1938, and its amended complaint, dated March 4, 1938,
against Chesapeake Shoe Manufacturing Company, Baltimore, Mary-
12 N. L. R. B., No. 90.
832
CHESAPEAKE SHOE MANUFACTURING COMPANY 833
land, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1), (3), and (5) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act.
Copies of the complaint, amended complaint, and accompanying
notices of hearing were duly served upon the respondent and the
United Shoe Workers of America, herein called the Union, a labor
organization representing employees of the respondent.
Prior to the commencement of the hearing, the respondent filed
answers to the complaint and amended complaint, respectively, in
which it admitted the allegations relating to the nature of its busi-
ness and the effect of its business upon commerce, but denied that it
had engaged in any of the alleged unfair labor practices.
Pursuant to the notice accompanying the amended complaint, a
hearing was held on March 10, 11, 12, 14, and 15, 1938, at Baltimore,
Maryland, before Gustaf B. Erickson, the Trial Examiner duly desig-
nated by the Board. The Board and the respondent were represented
by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing upon the issues was afforded all parties. At the con-
clusion of the Board's case, counsel for the Board moved to amend
the complaint to conform to the proof in respect to dates and the
spelling of names. The motion was granted. During the course of
the hearing the Trial Examiner made rulings on other motions and
on objections to the admission of evidence. The Board has consid-
ered the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
On April 18, 1938, the Trial Examiner filed his Intermediate Re-
port, in which he found that the respondent had engaged in the
unfair labor practices with which it was charged and recommended
that the respondent cease and desist from engaging in such unfair
labor practices, that it reinstate, with back pay, two employees found
to have been discriminatorily discharged and that, upon request, it
bargain collectively with the Union as the representative of its em-
ployees. Thereafter, on April 27, 1938, the respondent filed excep-
tions to the Intermediate Report and requested to be heard in oral
argument before the Board.
Pursuant to notice, a hearing was held before the Board on June
14, 1938, in Washington, D. C., for the purpose of oral argument.
The respondent and the Union were represented by counsel and par-
ticipated in the argument. On June 16, 1938, the respondent filed a
"Petition to Expedite" the decision of the Board for the alleged reason
that a contemplated sale of the properties of the respondent could
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not be consummated during the pendency of this proceeding' There-
after, on August 20, 1938, the respondent filed a brief.
The Board has considered the brief and the exceptions to the
Intermediate Report and, save to the extent that the findings below
depart from those of the Trial Examiner, finds the exceptions
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Chesapeake Shoe Manufacturing Company, is a
corporation organized and existing under the laws of the State of
Maryland since August 13, 1922. It operates a factory in Baltimore,
Maryland, at which it is engaged in the manufacture, sale, and
distribution of shoes.
Approximately 95 per cent of the' raw materials used by the re-
spondent, principal of which is leather, are obtained from States
other than Maryland. About 95 per cent of the shoes manufactured
by it are sold and transported outside the State of Maryland.
For the calendar year 1936 the respondent expended $411,571.51
for raw materials, and its sales amounted to approximately $650,000.
Normally it employs about 275 employees.
II. THE ORGANIZATION INVOLVED
United Shoe Workers of America is a labor organization affiliated
with the Committee for Industrial Organization. It admits to mem-
bership all shoe workers except supervisory and clerical employees
and watchmen who serve as policemen.
III. THE UNFAIR LABOR PRACTICES
A. Background
In about 1934 the Boot and Shoe Workers' Union, a labor organi-
zation affiliated with the American Federation of Labor, attempted
to organize the respondent's employees. Immediately, David Gold-
strom, president of the respondent, who was in charge of its labor-
relations policies, took steps to combat the organizational activities.
He admittedly hired Frank Kwiatkowski, known at the factory and
referred to in the complaint and,in this decision as Joseph Bloom,
and other employees to spy upon union meetings and activities and
1 The Board was informed on August 12, 1938, by letter from John W. Maher, counsel
for the respondent , that plans for the proposed sale had been canceled.
CHESAPEAKE SHOE MANUFACTURING COMPANY 835
report to him all information obtained. Thereafter, as a result of
the discharge by the respondent of the chairman of the shop com-
mittee of the Boot and Shoe Workers' Union, a strike was called.
While the strike was in progress, Bloom and other employees who
had been hired by the respondent as spies formed a "company
union," to which Goldstrom contributed $100, for the purpose of
resisting the Boot and Shoe Workers' Union and breaking the strike.
This they succeeded in doing. An election conducted under the
auspices of the old National Labor Board was lost by the Boot and
Shoe Workers' Union, and it thereafter ceased its attempts to
organize the factory.
In June 1937 the United Shoe Workers of America organized the
employees of Clement and Ball, a shoe factory adjoining the re-
spondent's factory, and negotiated a contract for them. Thereupon
employees of the respondent manifested an interest in organizing.
To offset this interest, Goldstrom called his employees together,
asked for their wholehearted cooperation, and promised them a 40-
hour week, increases in pay, and a bonus at the end of the year. The
40-hour week was put into effect on July 1, but increases in pay were
granted only in certain departments. Shortly thereafter union cir-
culars, upon which was printed, "Don't listen to Goldstrom's lies,"
were distributed in front of the factory.
B. Interference, restraint, and coercion
In June Philip Weinstein, the respondent's superintendent, en-
gaged Bloom in a conversation, during the course of which he stated
"that if the Union ever did get in, that there would be no work in
the factory, that they would go out of business, and would close up
the shop." Bloom, nevertheless, joined the Union in July and com-
menced distributing membership cards to other employees.
During July Goldstrom called Bloom into his office upon several
occasions to consult with him about the Union. Bloom testified that
at one of these conferences Goldstrom told him that he could make
,some money if he would work with him, Goldstrom, against the
Union; that when Bloom replied, "It takes money to do things,"
Goldstrom gave him $10. Bloom further testified that he went to a
union meeting that night and spent the $10 on beer for employees
after the meeting adjourned, but that he did not attempt to dissuade
any of them from joining the Union; that on the following day
Philip Weinstein asked him how he "got along," to which inquiry
he replied, "I am not a miracle man ; it takes a lot of time to pull a
thing like that. This has been brewing for months;" that there-
upon Weinstein told him, "We got to know very soon or we got to
close this plant down." Neither Goldstrom nor Weinstein denied
169134-39-vol. 12-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their part in the above-related incidents, and we accept Bloom's
account as true.
By the end of July Bloom had signed up a large majority of the
employees as members of the Union. On or about August 1, the
factory was shut down. Goldstrom claimed as reason therefor that
he was obliged to spend so much of his time with union conferences
that he had insufficient time left to obtain orders for shoes. He cited
an instance in which he dismissed an important customer with whom
he was conferring when interrupted by a telephone call on behalf
of the Union demanding that he confer with the Union that day or
on the following morning by 10 o'clock. The facts shown by the
record indicate that this action of Goldstrom's was captious, petu-
lant, and uncalled for. We are convinced that the respondent, by
shutting down its factory on or about August 1, was fulfilling its
threat theretofore made to close down its factory if the Union be-
came organized therein, and that such action was taken for the
purpose of discouraging membership in the Union.
We find that the respondent, by the acts set forth in this sub-
section, has interfered with, restrained, and coerced its employees in
the exercist of the rights guaranteed in Section 7 of the Act.
C. The refusal to bargain collectively
1. The appropriate unit
The complaint alleged, the respondent's answer admitted, and it
was stated by a union representative at the hearing, that the produc-
tion and maintenance employees, excluding supervisory and clerical
employees and watchmen, constitute a unit appropriate for the pur-
poses of collective bargaining. We see no reason to modify the
agreed unit.
We find that the production and maintenance employees, exclud-
ing supervisory and clerical employees and watchmen, constitute a
unit appropriate for the purposes of collective bargaining and that
said unit insures to employees of the respondent the full benefit of
their right to self-organization and collective bargaining and other-
wise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
On August 19, 1937, while the plant was closed down, an election
was held, with the consent of the respondent and the Union, to de-
termine whether or not the employees desired to be represented by
the Union for the purposes of collective bargaining. The election
resulted in 154 votes being cast for the Union, 29 against it, and 2
challenged votes. There were 200 employees in the appropriate unit.
CHESAPEAKE SHOE MANUFACTURING COMPANY 837
The respondent has not contended that the Union at any time there-
after failed to represent a majority of its employees.
We find that on August 19, 1937, and at all times thereafter the
Union was the duly designated representative of a majority of the
employees in the appropriate unit and, pursuant to Section 9 (a) of
the Act, was the exclusive representative of all the employees in such
unit for the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, and other conditions of em-
ployment.
3. The refusal to bargain in good faith
During the latter part of August 1937, Goldstrom expressed an
intention to reopen the factory, which had been closed since about
August 1, and to select a limited number of employees to return to
work immediately. The Union refused to agree that the employees
should return to work under conditions proposed by the respondent,
and as a result of several conferences failing to effect an accord, the
Union called a strike for September 17, and on or about that date
commenced picketing the plant. Thereafter several more confer-
ences were held at which some progress was made toward settling
the strike. At the Union's insistence, the respondent agreed to re-
instate all employees and divide the work among them under what
was designated by the Union as a "stagger" system. The respondent
also agreed to grant a 5-per cent increase in wages. It refused, how-
ever, to concede demands by the Union for a 40-hour week and a
signed agreement.
On October 28, at the solicitation of the Union, Harry T. Phoebus,
Senator and Labor Commissioner of the State of Maryland, held
a meeting in his office with representatives of the respondent and the
Union in a further attempt to settle the strike. Joseph Bloom,
Chester Brown, and several other employees, together with Bender,
the regional director of the Committee for Industrial Organization,
Martin J. Lawless, a field organizer, and Jacob J. Edelman, the
Union's attorney, were present as representatives of the Union; and
Goldstrom, Weinstein, and F. Fulton Bramble, the respondent's at-
torney, were present as representatives of the respondent. At the
commencement of the negotiations the Union requested that an agree-
ment, if reached, be reduced to writing and signed by the parties.
Goldstrom reiterated the position which he had consistently held
throughout all previous negotiations, that he would not sign an
agreement with the Union because he did not believe it was a re-
sponsible organization and further because the board of directors of the
respondent had instructed him not to sign an agreement. Phoebus,
however, prevailed upon him to consent that if an agreement were
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached, it might be incorporated into a written unsigned memo-
randum, with Phoebus as a witness to the fact that the memorandum
embodied the terms agreed upon. Upon this basis the Union and
the respondent proceeded to discuss the terms of an agreement.
The Union, although it had been demanding a 10-per cent increase
in wages, agreed to accept the respondent's proposal for a 5-per cent
increase. It insisted, however, upon a 40-hour week, except for two
8-week periods in each year during which the respondent might op-
erate on a 45-hour basis. The respondent insisted that the employees
work 44 hours a week because its competitors in Pennsylvania op-
erated under a 44-hour week and further because it claimed that an
attempt to operate under a 40-hour week in July had proved unsuc-
cessful. Phoebus argued that the Congress of the United States
would probably pass a wage-hour bill providing for a maximum
40-hour week within a few months and that Goldstrom by electing
to operate consecutively under the two 8-week periods of 45 hours
a week, which the Union was conceding, would not likely ever have
to operate under a 40-hour week until competitors were also so
operating.
Almost the entire day was consumed in a discussion of the maxi-
mum hour and other provisions of a proposed agreement. Goldstrom
and Weinstein left the meeting with the understanding that the terms
agreed upon would be incorporated into a memorandum which would
be presented to Goldstrom by Phoebus at a meeting arranged for that
night. A memorandum agreement was then dictated by Phoebus and
the Union representatives to Phoebus' secretary. It contained a pro-
vision for a 40-hour week.
Concerning the terms which had been agreed upon at that time,
there is an irreconcilable conflict in the testimony of the witnesses.
Edelman testified that an "agreement had been reached containing
the essential phases" of the memorandum which was subsequently
written and that the essential phases included a 40-hour week pro-
vision. He later qualified this testimony with the statement, "Now,
upon leaving we felt morally assured, based upon everything else
that transpired at the conference, that Mr. Goldstrom would accept
our arrangement; and if there was any question left, to ascertain that
fact for us, the Commissioner of Labor, Senator Phoebus, was to meet
with Mr. Goldstrom that night and was to impart to us the following
day what transpired between them." He admitted, however, that at
a hearing before Governor Nice of Maryland,2 at which these negotia-
tions and the record of Phoebus were the subject of an inquiry, he
2 Phoebus had been accused of misconduct in office and was requested by Governor Nice
to resign as State Labor Commissioner. A hearing on the charges of misconduct was
held before Governor Nice shortly prior to the hearing in this case,
CHESAPEAKE SHOE MANUFACTURING COMPANY 839
testified that Goldstrom was still insisting upon a 44-hour week as he
left the conference. Bender testified that to the best of his knowledge
Goldstrom had agreed to all terms of the memorandum before leav-
ing. Phoebus, Goldstrom, and Weinstein, however, testified that
Goldstrom had not agreed to the 40-hour week provision, and we are
satisfied that he had not.
Phoebus met Goldstrom and Weinstein on the night of October 28.
On the following morning he informed Edelman that Goldstrom had
agreed to the provisions of the memorandum; Edelman so informed
Bloom and other union representatives; and a union meeting was
called for Monday, November 1, for the purpose of ratifying the
agreement.
At the union meeting on Monday night Edelman informed the
members that Goldstrom had agreed to the terms of the memorandum
agreement and was waiting to hear whether the Union would accept
the agreemei t. The Union thereupon accepted it and Edelman de-
parted with the announced purpose of conveying the news to Gold-
strom. He returned as the meeting was about to adjourn and told
the employees that Goldstrom desired the cutters to return to work
on the following morning.
On November 4 an article appeared in the Baltimore Sun, a daily
newspaper, announcing that the employees had returned to work
under an agreement worked out by Phoebus and describing the agree-
ment which the employees believed had been reached. On November
5 the same newspaper published another article in which it quoted
Goldstrom as stating :
That no agreement was reached with the State Commissioner
of Labor, which brought to an end the strike in its factory; that
on Tuesday morning, November 2, when the men voluntarily
returned to the factory for work, Mr. Goldstrom asked them
whether they desired to work on a forty-four or forty-hour basis.
The men themselves indicated that they desired a forty-four
hour week and that is the basis on which the plant is now
operating.
With reference to the five per cent increase in wages, Mr. Gold-
strom stated that the five per cent increase had been voluntarily
offered to the men before the strike began.
At the time the statement just quoted was published, most of the
employees had already returned to work. The others, thereafter,
continued to return. One department, several days later, walked out
at 4 o'clock in the afternoon, asserting its intention to work only 40
hours a week. After a conference between the leader, one Carey, and
Goldstrom, however, at which Goldstrom pointed out to Carey that
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees would be making less money by working only 40 hours,
they resumed their 44-hour schedule. No further protest was made.
Goldstrom denied that he had on the night of October 28 or at any
other time agreed to the 40-hour week provision of the memorandum
agreement and claimed that it was not until 6 or 7 weeks after the
employees commenced returning to work that he learned that they
believed he had agreed to it.
He testified that on the night of October 28, when Phoebus met
him and handed him a copy of the memorandum, he, Goldstrom, ob-
jected immediately upon observing the 40-hour week provision; that
Phoebus, thereupon, told him, "Get them back to work. You ain't
signed anything. Get them back to work;" that he, Goldstrom, con-
tinued to remonstrate, whereupon Phoebus stated, "Take it with in-
structions from Senator Phoebus and show it to your attorney."
On the following morning, October 29, Goldstrom showed the
memorandum to Bramble, the respondent's attorney, and related to
Bramble what had occurred on the night before. Bramble told him,
"Senator Phoebus is going to claim that you agreed to this." Bram-
ble then telephoned Phoebus and informed him that Goldstrom had
not accepted the agreement. Phoebus replied, "Well, I understood
he agreed to it, but he wanted to get his plant open. Why don't he
go ahead?" Bramble on the same day told Goldstrom about this
conversation and wrote a letter to Phoebus, confirming their tele-
phone conversation.
Goldstrom testified that on the night of October 29 he telephoned
Phoebus at the latter's residence and again told Phoebus that he could
not accept the agreement; that on October 30, he telephoned Edelman
and stated to him, "Mr. Edelman, my heart is broken. I am going
out of business Tuesday morning if my men don't return to work;"
that he further told Edelman that he did not agree to "Senator
Phoebus' contract"; that Edelman replied, "Mr. Goldstrom, we are
having a meeting of your employees Monday night, and, if you will
arrange to meet me late Monday night, I will tell you the attitude
of the employees"; that on Monday night he did meet Edelman who
told him that the employees had voted unanimously to return to
work; that he then again told Edelman, "And understand me,
Mr. Edelman, it is 44 hours a week and five per cent on the last
payroll in June, and I will comply with the Wagner Act."
Phoebus, although he admitted being told by Bramble, over the
telephone and also by letter, that Goldstrom had not agreed to the
memorandum, insisted that Goldstrom actually did agree to it on
the night of October 28. He explained, "Mr. Goldstrom changes his
mind so often that I never know what the man positively means at
any time. I think Mr. Bramble only wrote me what Mr. Goldstrom
CHESAPEAKE SHOE MANUFACTURING COMPANY 841
probably told him to write ." Phoebus admitted that Goldstrom had
telephoned him on the night of October 29 but testified that Gold-
strom did not then deny having made the agreement but, on the con-
trary, was very happy that an agreement had been reached, and
wanted to know how many children Phoebus had and the sizes of
the shoes they wore . Goldstrom admitted that he had a very pleasant
conversation with Phoebus and that he asked Phoebus about the
sizes of his children 's shoes. He added , "That is not unusual. I give
away a lot of shoes."
Edelman admitted having received a telephone call from Gold-
strom on October 30 in which Goldstrom denied having agreed to
the 40-hour week provision and testified that he told Goldstrom that
the Union was relying upon information received from Phoebus that
an agreement had been reached on the night of October 28 and that
if Goldstrom had any further statements to make on that subject, he
should make them to Phoebus. Goldstrom did not deny that Edel-
man made the latter statement to him and we accept that part of
Edelman's testimony as true. Edelman further testified that pursu-
ant to an appointment made with Goldstrom over the telephone on
November 1, he met Goldstrom that night and informed him that
the employees had voted to accept the memorandum agreement and
return to work; that Goldstrom thereupon requested him to tell the
cutters to return to work on the following morning.
Phoebus had, prior to the commencement of negotiations on Octo-
ber 28, informed Goldstrom , "What I start, Mr. Goldstrom , I finish.
You will be back to work in one day ." It is clear that both Phoebus
and Edelman were eager to settle the strike and return all employees
to work even at the cost of deceiving the Union and its members in
order to accomplish this end.
Whether or not Goldstrom actually agreed to accept the 40-hour
week provision of the memorandum agreement on the night of Octo-
ber 28 , it is clear that he either led Phoebus to believe that he would
accept it or consented that the employees be deceived into believing
that he had accepted it. That Goldstrom approved of the manner in
which Phoebus was handling the situation is shown by his pleasant
conversation with Phoebus and his expression of an intention to send
shoes to Phoebus' children , after having been informed of Phoebus'
claim that he, Goldstrom, had accepted the memorandum agreement.
Whether Goldstrom , in telephoning Edelman on October 30, was
making a bona fide attempt to inform the Union that the respondent
was not agreeing to the 40 -hour week provision of the agreement, or
whether, believing that Edelman was participating in the apparent
scheme to deceive the Union, he wanted to protect himself against
any future claim that he was conceding the Union its demand for a
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
40-hour week, we are convinced that by his failure thereafter to com-
municate with either Phoebus or any member of the union bargain-
ing committee for the purpose of clarifying his position, he consented
to and became a party to the deception being practiced upon the
Union. While under ordinary circumstances a communication by
Goldstrom to Edelman, as attorney for the Union, of the fact that he
had refused to agree would probably be sufficient notice to the Union,
Goldstrom could not have considered it sufficient notice after being
told by Edelman that the Union was relying upon Phoebus' state-
ment that an agreement had been reached.
We are convinced, too, that Goldstrom, at his conference with
Edelman on the night of November 1, knew the conditions under
which the Union had voted to return to work.
After considering the respondent's conduct and the whole course
of negotiations up to this point, we conclude that while the respond-
ent met with the Union upon request, it consistently, throughout its
negotiations with the Union, refused to bargain with it in good faith
and followed a policy of attempting to discredit and subjugate it
and deny it credit for its achievements. This policy was expressed
at the commencement of negotiations with the Union on October 28,
when it refused the Union's request that an agreement, if reached,
be put in writing and signed by the parties thereto. In the light of
its background of hostility toward and attempts to discourage mem-
bership in and destroy the Union as set forth above, this refusal to
sign an agreement, if reached, showed that the respondent was not
bargaining in good faith. We said in Matter of Inland Steel Com-
pany and Steel Workers Organizing Committee and Amalgamated
Association of Iron, Steel, and Tin Workers of North America, Lodge
Nos. 64, 1010, and 1101; 8
Section 8 (5) of the Act requires an employer to accept the
procedure of collective bargaining in good faith, and the nature
of this obligation must be determined in the light of the prevail-
ing practice of collective bargaining and the spirit and purpose
of the Act as a means of avoiding industrial strife. We regard
it as well settled that collective bargaining in good faith requires
a willingness to consummate the negotiations, if successful, by
entering into some sort of an agreement. And we hold that
under such circumstances as are presented here, it is the em-
ployer's obligation to accede to a request that understandings
reached be embodied in a signed agreement.
This statement is no less true under the facts now before us.
3 9 N. L R. B. 783.
CHESAPEAKE SHOE MANUFACTURING COMPANY 843
The respondent's continued bad faith was thereafter exemplified
by its participation in deceiving the union members into returning
to work under conditions which they believed had been agreed upon,
but which had been rejected by the respondent. It is apparent that
this attempt to deceive would not have been successful had the re-
spondent not refused to sign an agreement, if reached. The absence
of the respondent's signature upon the agreement would have put the
Union on notice that an agreement had not in fact been reached.
The respondent's purpose to discredit and subjugate the Union
and deny it credit for its achievements is further shown by Gold-
strom's statement to the press, set forth above, in which he attempted
to make it appear that the Union had gained nothing for the em-
ployees and in which he even refused to give the Union credit for
calling off the strike. Such a statement issued by the respondent in
reply to a report on the result of the negotiations between the Union
and the respondent is inconsistent with an attempt on the part of the
respondent to bargain in good faith.
Even if the conduct of the respondent in refusing to sign an agree-
ment, if reached, its participation in deceiving the Union, and its
statement to the press were not deemed by us a basis for finding
that the respondent has refused to bargain collectively within the
meaning of the Act, its conduct, upon resuming operations, clearly
constitutes a refusal so to bargain. On the morning of November
2, when the cutters, 21 in number, returned to work, Goldstrom called
them together and said, "We have had a lot of dissension over 40
hours against 44. I am going to offer you men your preference, 40
or 44. The reason I am asking is that I would like to get an idea,
firstly, on the way the people feel and, secondly, if we can see a
way on the basis of a 40-hour week." The cutters chose to work 44
hours. The conditions which Goldstrom had recited as reasons for
his inability to work under a 40-hour week, set forth above in the
account of Goldstrom's conference with the Union on October 28,
had not changed. According to his own testimony, he had only
the night before, at his conference with Edelman, renewed his asser-
tion that he would operate under a 44-hour week. His flat refusal
to concede the representatives of his employees what he was willing
to, and immediately thereafter did, offer to individual employees is
clearly a refusal to bargain collectively within the meaning of the
Act. This conclusion is no less true whether Goldstrom actually
believed that the Union had voted to return to work under a 44-hour
week or whether he knew, as we have found that he did, that the
Union voted to return to work under a 40-hour week. In either case
the respondent's action was an attempt to undercut the authority of
the chosen representatives of the employees in dealing with the ques-
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of hours of work as a subject for collective bargaining and in
that manner to evade its duty to bargain collectively with the Union.4
We find that the respondent has refused to bargain collectively
with the Union as the exclusive representative of its employees in
an appropriate unit and that it has thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
D. The discharges
Joseph Bloom was employed by the respondent on March 17, 1932,
as a bed laster and worked continuously in that capacity until his
discharge on December 22, 1937.
Bloom was recognized by the respondent, as well as by the em-
ployees, as a leader. He has already been mentioned in connection
with the anti-union activities of the respondent in 1934 and also in
connection with its preliminary attempts to prevent the advent of
the Union in its plant in July 1937. After joining the Union and
signing up a large majority of the employees as members, he was
selected as its shop chairman. As shop chairman he participated in
many of the negotiations with the respondent which we have already
mentioned.
During the latter part of November or the first week in December
1937, Goldstrom called his employees together and asked them to
"bury the hatchet" and to cooperate with him. After he had made
this talk and while six or seven employees remained around him,
he and Bloom became engaged in a conversation which developed
into an argument concerning whether or not an agreement had been
reached before the strike was called off. Goldstrom turned to the
employees around him and told them that when the strike was called
off, Bloom came to him and congratulated him upon his victory.
Bloom thereupon denied that he had congratulated Goldstrom upon
a victory and explained that he had congratulated Goldstrom for
settling the strike. A heated argument concerning what had been
said then ensued, during which Bloom called Goldstrom a liar and
Goldstrom retorted that Bloom was "two liars." At this point Gold-
strom's brother, Morton, who was vice president and treasurer of
the respondent, ushered Goldstrom into his office. Nothing was said
to Bloom about this altercation until after his discharge several weeks
later, and he continued to work as usual.
4 See National Labor Relations Board v. Ren njton Rand, Inc., 94 F. (2d) 862, 868,
870 (C. C. A. 2d) cert. den . 304 U. S. 576 ; National Labor Relations Board v. The
Louisville Refining Company , 102 F. (2d) 678, (C. C. A. 6th), decided March 13, 1939;
Matter of Williams Coal Company, et at. and United Mine Workers of America, District
No. 23, 11 N. L. R. B. 579.
CHESAPEAKE SHOE MANUFACTUING COMPANY 845
On December 20 Bloom, as shop chairman, accompanied by other
bed lasters, interviewed Goldstrom in an attempt to secure an in-
crease in the piece rate on a new type of shoe which the respondent
had commenced making and which required more time for the em-
ployees to complete. At the commencement of the interview Bloom
addressed Goldstrom as "Dave" and Goldstrom rebuked him with
the statement that they had not gone to school together and that,
consequently, Bloom should call him "Mr. Goldstrom." Bloom re-
plied, "All right, Mr. Goldstrom, you can call me Mr. Bloom !"
Goldstrom refused to grant the request of the committee that an
increase in rate of pay on the new type of shoe be granted, where-
upon Bloom told him that the committee would let him know whether
the bed lasters would return to work on the following morning.
Morton Goldstrom was present at this interview. He testified, "The
way he (Bloom) spoke to my brother, it was such a shock to me,
I hated to see an employee speak to my brother in the way he did,
with the idea `I will let you know whether I will be in tomorrow."'
David Goldstrom, too, seemed especially provoked by Bloom's sug-
gestion that there was a possibility of the bed lasters not returning
to work on the following morning. He testified that he had planned
to leave for Boston that night for the purpose of attempting to
obtain a large order for shoes, that because of Bloom's threat, he
did not go to Boston and later received only one-half_ or one-third
of the order which he had expected to receive.
Bloom, about 13 years prior to the above incident, when he was
17 or 18 years, old, had pleaded guilty to a charge of stealing an
automobile and had served a 3-year sentence in the Maryland State
Penitentiary. It was while in the penitentiary that he learned his
trade of bed lasting. About 1 year after being released he was
arrested and pleaded guilty to a charge of drunkenness and of carry-
ing concealed weapons. He served a sentence of 1 year in jail for
that offense. It was generally known by employees who worked
near Bloom that he had a criminal record.
Weinstein and David Goldstrom testified that they had no knowl-
edge of Bloom's record prior to about December 21, 1937. Morton
Goldstrom claimed that he had no knowledge of the fact until 5
or 6 days prior to the interview of December 20 when one of the
employees reported to him that her husband knew of Bloom's crim-
inal record; that he did not immediately pay any attention to the
report, but that after the December 20 interview, and after he had
observed the attitude which Bloom was taking toward his brother,
he decided to investigate what had been told him; that he notified
his brother of the report and both of them proceeded on December
21 to investigate Bloom's record, whereupon they discovered the facts
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which we have above related . David Goldstrom testified that upon
learning these facts he immediately became afraid of Bloom and
decided that in the interest of his personal safety he could no longer
retain Bloom in his employ . He related to Edelman what he had dis-
covered and also the other difficulties which he had recently had with
Bloom and told Edelman that he Aid not desire to retain Bloom as
an employee . Edelman expressed surprise upon learning of Bloom's
criminal record and stated that in view of the hostility which seemed
to have developed between Bloom and Goldstrom , Bloom could not
be expected to continue effectively to represent the Union as its
shop chairman . He agreed to attempt to persuade Bloom to with-
draw from his leadership in the Union and suggested that Bloom
might then make a satisfactory employee. Goldstrom seemed agree-
able to this suggestion . It was recognized that Bloom was an excep-
tionally good worker.
Early in the morning of December 22 Goldstrom called upon the
police department of the City of Baltimore for protection , and when
Bloom arrived for work , he was met by several police officers, who
followed him into the plant. Goldstrom met Bloom and asked him,
"What do you expect to do ?" Bloom replied, "I am going to work."
Goldstrom then told him about the discovery of his criminal record
and informed him that he would not be allowed to work, at least
not until a report had been received from Edelman . Bloom asked
if he had been fired , and Goldstrom told him that he was not fired
but that he, Goldstrom , nevertheless , wanted Bloom to leave the plant.
Bloom thereupon left, accompanied by the policemen.
On the following day Bloom saw Edelman , and the latter advised
him to abandon his union leadership and activities in order to secure
reinstatement . Bloom , although reluctant to accept this condition, was
apparently persuaded by Edelman that he should . The reinstatement
was never effected, however , for when Bloom and Edelman obtained
an interview with Goldstrom for the purpose of making final arrange-
ments for Bloom's return to work , Goldstrom insisted , as an added
condition , that either Goldstrom or a union representative talk to the
employees and inform them that it was neither the Union nor the
Board which was effecting Bloom's reinstatement , but that he, Gold-
strom , was voluntarily doing so. The shop committee of the Union
and Bender , the Committee for Industrial Organization 's regional
director , thereupon took Bloom's case under consideration and refused
to consent that any condition be attached to his reinstatement. Bloom
abided by the decision of the Union and was never reinstated.
There is substantial support in the record for a finding that the re-
spondent knew of Bloom's criminal record long prior to his discharge.
Bloom testified that in 1932 , while he was unemployed , David Gold-
CHESAPEAKE SHOE MANUFACTURING COMPANY 847
strom accompanied by one Lou Faber , who knew all about Bloom's
record, came to Bloom's home and requested him to work for the
respondent; that shortly thereafter at a party given for the employees
of the respondent, Weinstein, the superintendent, suggested a game
which had for its purpose the acquainting of employees with each
other , and that in connection with this game Weinstein announced to
employees around him that Bloom had learned his trade in the peni-
tentiary ; that while a strike by some of the respondent 's employees
was in progress in 1934, pickets, in the presence of David Goldstrom
upon a number of occasions , called Bloom an ex-convict as he passed
through the picket lines on his way to work; and that several years
prior to his discharge Morton Goldstrom had asked him for what
offense he had served his time in the penitentiary. This testimony,
considered in the light of the fact that David Goldstrom had been
-very closely associated with Bloom since engaging his services to com-
bat the Boot and Shoe Workers' Union in 1934, and the further fact
that it was generally known among the employees who worked near
Bloom that he had a criminal record, lead us to conclude that although
the respondent may not have known the specific offenses for which
Bloom had been imprisoned , it did know that he had a criminal
record.
However, even were we to concede that the respondent did not know
of the record which we have hereinbefore related , other circumstances
convince us that Bloom's criminal record was not in fact the true
reason influencing the respondent to discharge him. About 2 years
after Bloom had been employed by the respondent he was arrested
upon a charge of drunkenness and assault upon an elderly woman.
Morton Goldstrom employed an attorney to represent Bloom, furnished
bail, and paid a fine of $25 for him. Both Morton and David Gold-
strom were fully acquainted with all the details of that arrest. They
admitted that another employee had been arrested for robbing a cash
register, that the respondent had likewise secured counsel and fur-
nished bail for that employee, and that the employee continued to work
for the respondent. At the hearing it appeared that a third employee
had at one time served a sentence in a penitentiary but that the re-
spondent , knowing of such fact , was not interested in investigating the
offense for which he had been convicted and had no intention of dis-
charging him because of any previous criminal record.
The respondent has placed little emphasis upon its charge that
Bloom was insolent as a reason for discharging him. The incident in
which Bloom called Goldstrom a liar occurred several weeks prior to
his discharge and apparently would have been forgotten had Bloom
not attempted to bargain for his fellow employees . The other in-
cident cited by the respondent as insolence , the fact that Bloom, on
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 20, had called Goldstrom by his given name, we regard as
trivial,' especially in view of the fact that the record shows that Bloom
and Goldstrom had once been on very friendly terms, that Goldstrom
had upon several occasions accompanied Bloom for a drink of beer,
and on one occasion had gone with Bloom to visit a girl whom Bloom
later married. The point stressed by both Morton and David Gold-
strom in testifying relative to the December 20 interview, at which an
increase in the rate of pay on a new type of shoe was requested, was
Bloom's remark, after the request was denied, that he would let David
Goldstrom know whether the employees would return to work on the
following morning. That fact, as well as the fact that the respondent
was willing to reinstate Bloom on the condition that he would give up
all union activities and that the Union be given no credit for securing
his reinstatement, lead us to conclude that the true reason for his dis-
charge was his strength as a union leader.
We find that by discharging Bloom in December 22, the respondent
discriminated in regard to his hire and tenure of employment, thereby
discouraging membership in the Union and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Bloom normally earned an average of about $33 a week while work-
ing for the respondent. However, due to the fact that the plant was
not operating at its full capacity at the time of his discharge, he was
then earning an average of only about $18 a week. He had not ob-
tained other employment at the date of the hearing.
Chester Brown had been employed by the respondent for about 3
years in its finishing department as an edge trimmer at the time of
his discharge on March 1, 1938.
He had joined the Union and was a member of its shop committee.
As such he occasionally presented grievances to Weinstein or Morton
Goldstrom. Concerning his accomplishments as shop committeeman,
he testified, "They (the respondent) never paid any attention to
me . . . They just say, `What am I worrying about other people's
troubles for P "'
The edge trimmers worked upon several types of shoes, designated
by the respondent as spring heels, rubber heels , and misses. One of
these types, spring heels, was recognized by the respondent and by the
employees as being more difficult to trim. The trimming of spring
heels usually slowed down the work of the edge trimmers or else caused
blisters to be formed upon their fingers because of the hardness of the
material. For this reason, it was customary for Weinstein, who was
in charge of distributing these shoes, to alternate spring heels with
rubber heels and misses shoes. After the termination of the strike,
Chester Brown complained to Weinstein and then to Morton Gold-
strom that he was being given more than his share of spring heels.
CHESAPEAKE SHOE MANUFACTURING COMPANY 849
For a short while after he had complained to Morton Goldstrom, the
number of spring heels given him decreased. However, he was soon
again given a large number of that type of shoe to trim and continued
to complain to Weinstein.
On the morning of March 1, 1938, Weinstein informed Brown as he
arrived for work that one of the employees on an operation through
which spring heels did not pass would be absent during the afternoon
for the purpose of attending a funeral, and that to avoid slowing up
production in the edge-trimming department, Weinstein intended to
send Brown several cases of spring heels. An argument ensued, during
the course of which Brown asked Weinstein why, if there was not
enough work to keep the trimmers busy, Weinstein did not send them
home. Weinstein retorted that if Brown wanted to go home he could
do so at any time he felt like it. Thereupon, Brown started to leave,
and Weinstein told him that if he did leave, he need not return on the
following day. Brown then came back toward Weinstein in a threaten-
ing manner, and stated, "I've been waiting a long time to get even with
you, and I'll do it right now." Weinstein replied, "Brownie, if I was
you, I wouldn't hit anybody." Thereupon Brown left the factory. He
returned to work on the following day and was told that he had quit
and could no longer work for the respondent. Weinstein refused to
consider reinstating Brown because of the latter's conduct on the
preceding day.
Sam LiPira, an edge trimmer, and Casper Bayer, a packingroom em-
ployee who worked near Brown, testified that in their opinion Wein-
stein discriminated against Brown by giving him more spring heels
in succession to work upon than were given other edge trimmers. Sul-
bert Robey, one of the edge trimmers, testified that the employees
had discussed among themselves the fact that Brown was getting a
large number of spring heels to work upon, and that,he, Robey, had
noticed adhesive tape on Brown's fingers after he had been required to
I rim spring heels. LeRoy Arndt, Paul M. Bish, and George Lowry,
other edge trimmers, testified, however, that in their opinion spring
heels were "practically evened up" and that they did not believe that
Brown had been discriminated against. Weinstein testified that he at-
tempted to distribute spring heels as evenly as possible among the
edge trimmers who could do the work and that Brown really received
less than his share of spring heels because he constantly complained
and other edge trimmers did not complain. From the evidence be-
fore us, we are not convinced that the respondent discriminated against
Chester Brown by giving him more than his share of spring heels to
trim.
Upon the basis of all the facts set forth above, we find that the
respondent did not discriminate in regard to the hire or tenure of
employment of Brown because of his union membership or activities.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and have led and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action which we deem necessary to effectuate the
purposes of the Act.
We have found that the respondent has refused to bargain with
the Union. We shall therefore order that, upon request, it bargain
collectively with the Union as the exclusive representative of its
production and maintenance employees, excluding supervisory and
clerical employees and watchmen, and that if an agreement is
reached, it embody such agreement in writing and sign the same as
a party thereto, if requested to do so by the Union.
We have found that the respondent, by discharging Joseph Bloom
on December 22, 1937, and thereafter attaching as one of the condi-
tions for reinstating him the requirement that he abandon all union
activities, has discriminated in regard to his hire and tenure of
employment because of his membership in and activities in behalf
of the Union. In order to effectuate the policies of the Act, we
shall order the respondent to offer Bloom reinstatement to his former
position without prejudice to his seniority and other rights and
privileges and without attaching to such offer any illegal condition
of employment such as abandonment of his union leadership and
activities. The respondent will also be required to make him whole
for any loss of pay he has suffered by reason of his discharge by
payment to him of a sum equal to the amount which he normally
would have earned as wages from the date of his discharge to the
date of the offer of reinstatement, less his net earnings 5 during said
period.
0 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590. 8 N. L. R, B . 440. Monies
received for work performed upon Federal , State, county , municipal or other work-relief
projects are not considered as earnings , but, as provided below in the Order , shall be
deducted from the sum due the employee , and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal , State, county , municipal , or other government
or governments which supplied the funds for said work-relief projects.
CHESAPEAKE SHOE MANUFACTURING COMPANY 851
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Shoe Workers of America is a labor organization within
the meaning of Section 2 (5) of the Act.
2. The production and maintenance employees of the respondent,
excluding supervisory and clerical employees and watchmen, consti-
tute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. United Shoe Workers of America was on August 19, 1937, and
at all times thereafter has been, the exclusive representative of all
employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with United Shoe Workers
of America as the exclusive representative of its employees in the
appropriate unit, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of Frank Kwiatkowski, also known as Joseph Bloom, thereby
discouraging membership in the Union, the respondent has engaged
in and is engaging in an unfair labor practice, within the meaning
of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
8. By discharging and refusing to reinstate Chester Brown, the
respondent has not engaged in an unfair labor practice, within the
meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Chesapeake Shoe Manufacturing Company, Baltimore,
Maryland, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Shoe Workers
of America as the exclusive representative of its production and
169134-39-vol 12-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance employees, excluding supervisory and clerical employees
and watchmen ;
(b) Discouraging membership in United Shoe Workers of Amer-
ica, or any other labor organization of its employees, by discharging
or refusing to reinstate any of its employees, or in any other man-
ner discriminating in regard to their hire and tenure of employment
or any term or condition of employment because of membership or
activity in United Shoe Workers of America or any other labor
organization of its employees ;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining and other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Shoe Workers
of America as the exclusive representative of its production and
maintenance employees, excluding supervisory and clerical employ-
ees and watchmen, in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, and, if an agreement
is reached on such matters, embody said agreement in writing and
sign it ;
(b) Offer to Frank Kwiatkowski, also known as Joseph Bloom,
immediate and full reinstatement to his former position, without
prejudice to his seniority and other rights and privileges, and with-
out attaching to such offer any illegal condition of employment such
as abandonment of his leadership or activities in behalf of the
Union;
(c) Make Frank Kwiatkowski, also known as Joseph Bloom, whole
for any loss of pay he may have suffered by reason of the respond-
ent's discrimination in regard to his hire and tenure of employment
by payment to him of a sum of money equal to that which he nor-
mally would have earned as wages during the period from the
date of such discrimination to the date of the offer of reinstatement,
less his net earnings during said period; deducting, however, from
the amount otherwise due him, monies received by him during said
period for work performed upon Federal, State, county, municipal,
or other work-relief projects, and pay over the amount so deducted,
to the appropriate fiscal agency of the Federal, State, county, munici-
pal, or other government or governments which supplied the funds
for said work-relief projects;
CHESAPEAKE SHOE MANUFACTURING COMPANY 853
(d) Post immediately in conspicuous places throughout its factory
and keep posted for a period of at least sixty ( 60) consecutive days,
copies of this Order together with a statement that the respondent
will abide by and comply with the provisions of this Order;
(e) Notify the Regional Director for the Fifth Region in writing
within ten ( 10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the amended com-
plaint that the respondent has engaged in an unfair labor practice
within the meaning of Section 8 ( 3) of the Act by discharging and
refusing to reinstate Chester Brown be, and they hereby are,
dismissed.
MR. DONALD WAKE=-r D SMITH took no part in the consideration of
the above Decision and Order.