Daly Bros. Shoe Co., Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1949

86 N.L.R.B. 1282 (N.L.R.B. 1949)

In the Matter of DALY BROS. SHOE Co., INC., EMPLOYER and UNITED
SHOE WORKERS OF AMERICA, CIO, PETITIONER
Case No. 13-CA-1,07.-Decided November 7, 1949
DECISION
AND
ORDER
On July 29, 1949, Trial Examiner J. J. Fitzpatrick issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint, and recommended dismissal of these
allegations. Thereafter the Respondent filed exceptions to the Inter-
mediate Report, and a supporting brief.
The Board 1 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, the Respondent's brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
The Trial Examiner found, and we agree, that Dorothy Merkel was
discriminatorily discharged by the Respondent on August 24, 1948,2
at the height of the Union's organizing campaign, because of her activ-
ities on behalf of the Union. The Trial Examiner's determination
was based largely upon his credibility findings. The Respondent has
taken exception to these findings. Upon the entire record, however,
particularly in view of the contemporaneous antilnlibn remarks made
by Superintendent Marine and Foreman Pence to Merkel, and in view
of the summary manner of Merkel's discharge without prior warning,
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three-member panel
[ Chairman Herzog and Members Houston and Murdock].
2 In his preliminary discussion concerning Merkel's discharge , the Trial Examiner inad-
vertently stated that she was discharged on August 23, 1947, rather than on August 24,
1948 , as he subsequently found. We hereby correct the Intermediate Report in this respect.
86 N. L. R. B., No. 133.
1282
DALY BROS. SHOE' CO., INC. 1283
we adopt the credibility findings of the Trial Examiner as our own.
.Accordingly, we find, as did the Trial Examiner, that Merkel's dis-
charge constituted a violation of Section 8 (a) (3) of the Act.
2. The Trial Examiner recommended dismissal of the allegation
that the Respondent engaged in surveillance of the union activities
of its employees. No exception has been filed to this recommendation.
Accordingly, we shall dismiss this allegation of the complaint.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Daly Bros. Shoe
Co., Inc., Marion, Indiana, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in United Shoe Workers of America,
CIO, or in any other labor organization of its employees, by discrimi-
natorily discharging or refusing to reinstate any of its employees, or
discriminating in any other manner in regard to their hire and tenure
of employment or any terms or conditions of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to form
labor organizations, to join or assist United Shoe Workers of America,
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and 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
membership in a labor organization as a condition 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) Offer to Dorothy Merkel immediate and full reinstatement to
her former or substantially equivalent position without prejudice to
her seniority or other rights and privileges ;
(b) Make whole Dorothy Merkel for any loss of pay she may have
suffered by reason of the Respondent's discrimination against her,
by payment to her of a sum of money equal to the amount she would
normally have earned as wages during the period from the date of the
discrimination against her to the date of the Respondent's offer of
reinstatement to her former or substantially equivalent position, less
.her net earnings during such period;
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plant in Marion, Indiana, copies of the notice attached
hereto and marked Appendix A.3 Copies of said notice, to be.
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent or its representative, be
posted by the Respondent immediately uron receipt thereof and main-
tained by it for a period of sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material;
(d) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent engaged in surveil-
lance of the activities of its employees on behalf of the Union in viola-
tion of Section 8 (a) (1) of the Act.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, 1947, we hereby notify our employees that :
EVE WILL NOT in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist UNITED SHOE WORKERS
or AMERICA, CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and 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 organi-
zation as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
WE WILL OFFER to the employee named below immediate and
full reinstatement to her former or a substantially equivalent
position without prejudice to any seniority or other rights and
privileges previously enjoyed, and make her whole for any loss of
pay suffered as the result of the discrimination.
Dorothy Merkel
3 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the notice, before the words "A DECISION AND ORDER" the words,
"A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
DALY BROS. SHOE' CO., INC. 1285
All our employees are free to become, remain, or refrain from be-
coming members of the above-named union or any other labor organ-
ization except to the extent that the right to refrain may be affected
by a lawful agreement requiring membership in a labor organization
as a condition of employment. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf
of any such labor organization.
DALY BROS. SHOE CO., INC.,
Employer.
By----------------------------
(Representative ) (Title)
Dated-------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. John P. von Rohr, for the General Counsel.
Mr. John 0. Campbell and J7r. Jerry W. Torrance, of Marion, Ind., for the
Respondent.
Mr. James E. Bungle, for the Union.
STATEMENT OF THE CASE
Upon a charge and amended charge duly filed' by United Shoe Workers of
America, CIO, herein called the Union, the General Counsel of the National
Labor Relations Board 2 by the Regional Director for the Thirteenth Region
(Chicago, Illinois), issued a complaint dated April 29, 1949, against Daly Bros.
Shoe Co., Inc., Marion, Indiana, herein called the Respondent, alleging the Re-
spondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and
(7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called
the Act. Copies of the complaint, the notice of hearing thereon, together with
the charges, were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance
that the Respondent: (1) Since about July 1, 1948, has engaged in a continuous
course of interference, restraint, and coercion of its employees in the exercise
of the rights guaranteed them under Section 7 of the Act by ; (a) warning
and threatening its employees against joining or assisting the Union; (b) en-
gaging in surveillance of the activities of employees on behalf of the Union ; and
(c) interrogating an employee concerning her membership, interest, or activities
in or on behalf of the Union; and (2) on or about August 23, 1948, discharged
Dorothy Merkel, and had since failed and refused to reinstate her, because she
joined and assisted the Union.
1 The original charge was filed August 30, 1948, and served on the Respondent Septem-
ber 2, 1948. The amended charge was filed October 25, 1948, and served on the Respondent
October 26, 1948.
2 The General Counsel and his representative at the hearing will be referred to herein
as the General Counsel, the National Labor Relations Board as the Board.
867351-50-vol. 86-82
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent' s answer , verified May 9, 1949, admits that about August
23, 1948, it discharged Merkel and had since failed and refused to reinstate her,
but denies all allegations of unfair labor practices.
Pursuant to notice, a hearing was held at Marion, Indiana, on May 31, June
1 and 2, 1949, before J. J. Fitzpatrick, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel and the Re-
spondent were represented by attorneys and the Union by an International
representative. All parties participated in the hearing and were afforded full
opportunity to be heard , to examine and cross -examine witnesses , and to intro-
duce evidence bearing on the issues. At the conclusion of the hearing the parties
waived oral argument, but the General Counsel and the Respondent have each
filed a brief since the close of the hearing.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT 3
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Daly Bros. Shoe Co., Inc., is a Massachusetts corporation with
principal office and place of business in Boston , Massachusetts . It operates
manufacturing plants in a number of States, including one at Marion, Indiana,
the only plant involved in this proceeding , where it is engaged in the manufacture
and sale of shoes. At its Marion plant the Respondent purchased materials
and supplies valued in excess of $100,000 during the calendar year 1948, more
than 50 percent thereof being purchased and shipped to Marion from points
outside the State of Indiana . During the same period , its annual receipts from
sales of its products exceeded $100,000 in value, of which more than 50 percent
came from sales outside the State.
11. THE ORGANIZATION INVOLVED
United Shoe Workers of America, CIO, is a labor organization admitting to
membership employees of the Respondent.
III. TIIE UNFAIR LABOR PRACTICES
A. Background and sequence of events
The Respondent has over 300 production employees at its Marion plant, but
prior to the events hereafter referred to there was no union organization in
the plant. On June 28, 1948, the plant was closed due to the death of John
Daly. Some of the employees, including Dorothy Merkel, (lid not see the pub-
lished notice of the closing and reported for work that morning. On discover-
ing that the plant was closed, 3 of these employees including Merkel and
Francis Cartwright went to the latter's apartment where they discussed the
advisability of organizing a union at the plant. Merkel, who had been a
member of the Union while working for other shoe manufacturing concerns in
Chicago, Illinois, and also in Rochester, New York, arranged for the Union to
send an organizer to Marion. While waiting for Rose, the organizer, to arrive,
Merkel talked union with employees at the plant and at their homes. When
Rose appeared, about the middle of July, Merkel supplied him with the names
and addresses of interested employees, and otherwise assisted him in securing
union members. A number of other employees, including Nellie Alwine and
Naomi Scott, also did some soliciting.
3 Unless otherwise specifically indicated herein all dates referred to are in the year 1948.
DALY BROS . SHOE' CO., INC. 1287
In the course of the organizing campaign a union meeting was arranged for
the evening of July 30 at the apartment of Mickey Gosnell. No one attended
this meeting , however, excepting employees Gosnell and Merkel, and George
Barile and George Rose union representatives . Thereafter several union meet-
ings were held in the evening at the following times and places : August 12 and
19 at the Spencer Hotel in Marion , and August 26 at the CIO Hall in that city.
In the meanwhile , on August 23, Dorothy Merkel was discharged allegedly for
absenteeism , and has not since been reinstated'
B. Interference, restraint , and coercion
1. Questioning of employees
The Respondent learned of the union activity in the plant shortly after its
inception, and about the end of July, General Manager E . Rex Lowey gave oral
instructions to the foremen and other supervisors to be careful in talking with
any employees "not to threaten them with loss of their jobs on account of any
activities they might have in regards to the union." 6
The rank and file employees were not notified of these instructions , and it is
clear from what transpired thereafter that Superintendent Marine and a number
of the foremen gave lip service only to those instructions.
Thus, before her discharge in August , Dorothy Merkel gave employee Phyllis
Sanders a union authorization card one morning on their way to work. The
same day, according to Sanders ' undenied and credited testimony, her foreman,
a Mr. Jacobs ,' asked her at work if she had a union card and Sanders replied
that she had torn the card up.
It is undenied , and Evelyn Petrie's testimony is credited that her foreman,
Robert Pence , asked her at work in the fall of 1948 if she knew anything about
the Union . Harvey Leech testified credibly and without contradiction that,
after attending one of the union meetings in the Spencer Hotel ( where he was
seen in the lobby of the hotel by Superintendent Marine ), lie was told at work
early the next morning by his foreman , Earl Vernerder , ( acting under instruc-
tions from Superintendent Marine ) to "watch where he went and to watch what
he said, to keep out of trouble" ; that later the same day Superintendent Marine
sent for Leech and asked him what he thought about the Union , that the
Respondent "had gotten along fairly good for a long time without a union." 7
Under the circumstances I find Vernerder ' s comment to Leech followed by
Marine's questioning was intended as a warning by the Respondent for Leech
to continue his interest in the Union at his peril.
There is considerable other testimony , most of it disputed, of interference by
Superintendent Marine and Foreman Pence with the rights of the employees
during the Union 's organizing efforts.
Naomi Scott and Nellie Aiwine attended the August 19 union meeting at the
Spencer Hotel. Marine saw both of them , as well as other employees in the hotel
4 Later on , probably in the fall of 1948 , an AFL Union became interested in organizing
the employees . The amount of progress made by the AFL Union does not appear from
the record , but at the time of the hearing the Board had ordered an election among the
employees in the plant.
$ Plant: Superintendent Verne Marine testified that following the above instructions by
Lowey lie also, about the 1st of August, gave approximately the same instructions to the
foremen and told them that "they were not in any way to interfere with the employees in
any action they alight take."
Jacobs did not testify.
Marine did not deny this testimony- of Leech's but testified that lie sent for Leech because
he heard Leech had been giving out cards on company time.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lobby. The next morning at work Marine sent for Scott and Alwine. He ad-
monished them against union activity on company time, stated that he had noth-
ing against unions in the plant, but did not like the CIO, and said that if the
Union succeeded in its efforts to organize the plant, Respondent might not get
along with it and could easily move out of Marion ; that most of the Respondent's
machinery was leased and that in that event, the employees who owned the
plant 8 would be put to upkeep expense and any employee who left might be
delayed in securing the money he had contributed to the Realty Company a
Sylvia McAllister testified that in August, Marine came to her machine and
the following transpired :
Well, Mr. Marine come up, drew up a chair beside me, and we talked about
different things, and then he said : "Sylvia, what do you think about this
union?" I said: "What Union?" He said: "Didn't you hear about it?" I
said : "No." He said : "You mean that as long as you and Naomi have been
friends she has not given you one of those little white cards to sign?"' So I
said, "No, she did not." He said: "I know she is passing them out here, and
Nellie, because I have one of them." And I said, "Well, it could be. I don't
know anything about it."
He said, "Well, there is just one thing about it," he said, "The Company
will not tolerate any union trouble." He said : "If they do, they will prob-
ably move out." And he said : "There is just one thing about it," he said, "If
they come here they won't get any further than the front door."
McAllister further testified that Marine left after some further discussion between
them relative to working conditions in the plant.
Marine testified that occasionally he talked with employees at work and that
he had known McAllister for many years and had visited with her on the above
occasion. He stated that he could not recall the exact conversation, but denied
saying that the Union would not get farther than the front door because the
Respondent would move out. He did not deny the other McAllister statements.
McAllister was an old employee of the Respondent. She had not attended any
union meetings and, so far as the record discloses, was not particularly interested
in the charging union. She was testifying under subpoena. There was nothing
about her demeanor on the stand or her testimony to indicate lack of candor.
On the other hand, Marine, as above found, was definitely opposed to the Union.
I therefore do not credit his denial , and find that he made the statements
substantially as testified to by McAllister.
Betty Hoig, no longer employed by the Respondent, attended the union meeting
at the CIO Hall on August 26. The early part of the meeting she with Dorothy
Merkel left the Hall, went down the stairs to the street for the purpose of crossing
B Respondent ' s predecessor in Marion, the Marion Shoe Company , went into receivership
in 1934. Included in the assets sold by Court Order was the plant itself which the business-
men of Marion, through the Shoe Manufacturers Realty Company, presumably formed for
the purpose, bid in for $20,000 or $25,000, there being an understanding at the time that
Respondent would keep the plant up including the paying of insurance, taxes, and other
items for the use thereof as a manufacturing plant. Respondent owned none of the Realty
Company ' s stock, though it was arranged that each of its employees , after 6 weeks service,
be required to invest a small amount of his earnings, up to a total of $250, in the stock.
By this device a fund was created from which the businessmen were reimbursed and any
employee who left the Respondent could cash in on the stock he had purchased.
9 The above findings are based on the credible testimony of Scott corroborated in part by
Alwine, a witness for the Respondent, and by the admissions of Marine. His denial that he
told the two women employees he did not like the CIO and that the Respondent could
easily leave Marion is not credited , in the light of all the circumstances.
DALY BROS. SHOE CO., INC. 1289
to the other side to get into an automobile. As they did so they saw Marine
sitting on a bench on the Court House sidewalk across from the union Hall. She
testified that the next day Pence called her to his desk and the following
transpired:
He asked me how I felt about the union . Then he said he had been
informed that I had attended the union meeting, and that I was seen in the
company of Dorothy Merkel. So he said he didn't like to see me get mixed
up in the union, but that lie liked me personally, and he would hate to see
me let out because of union activities.
Hoig further testified that the talk extended over 15 or 20 minutes and that no
one else was present ; that whenever anyone came to the desk, Pence would stop
talking until he had left.
Pence testified that he knew Hoig and she had been an employee in his depart-
ment. The following question and answer is the only other reference in Pence's
testimony to this Hoig incident.
Q. Did you ever call Betty Hoig to your desk when Mr. Marine was there,
and say this or this in substance to her, that you were informed that she had
attended a union meeting, and that you hated to see her get mixed up with
the union, and would have to see her get let out because of union activities?
A. No, Sir.
Assuming that Pence intended to deny this talk as testified to by Hoig, I do not
credit the denial. Not only has Pence's testimony been otherwise discredited
herein, but Hoig in her demeanor on the stand impressed me as a comparatively
disinterested witness trying to give an accurate version of the incident. I there-
fore find that Pence made the statements substantially as testified to by Hoig.
Dorothy Merkel, whose discharge on August 23 is discussed hereafter, was the
most active of the employees in promoting the Union's campaign. She testified
that about the 1st of August her foreman, Pence, sent for her and in Marine's
presence asked if she had heard about the Union and who in the plant was active
on its behalf ; that he told her on this occasion, as well as numerous times there-
.after, to "keep her nose clean" of union activities ; that Marine stated that
Respondent would never recognize the Union, and would leave town if it got intc
the plant. Merkel further testified that after she had passed word around of the
August 12 union meeting, but before the day of the meeting. Pence came to her
machine and asked if she had heard of any union activities, and that upon her
response in the negative Pence stated that :
It would be too bad for all these people to be out of jobs, because they liked
me, they liked my work, and they needed me, and I needed my job, but Daly
Brothers would definitely move if the union came in.
Merkel also testified that after she had passed around word of the August 19
union meeting, but prior to the time when the meeting took place, Marine called
her from her machine to a point in the department where they could not be over-
heard, and asked if she had heard anything more about the Union and if she knew
where the union organizer lived; and that on her response in the negative to both
these queries, Marine reiterated that the Respondent would have nothing to do
with the Union and would move if it came into the plant.
Pence denied that he had asked Merkel if she had heard anything about the
Union, that he had stated it would be too bad for employees to be out of work
and that the Respondent would move if the Union came in, or that he told Merkel
to keep away from the Union. Marine denied that he had told Merkel that the
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent would never recognize the Union and would move or close its doors.
Pence testified that about the latter part of July, Merkel told him that two men
wanted her to help organize the Union, but that she wanted no part in it as they
were "Commies"; that she was satisfied and would like to remain on the job at
Marion. Pence further testified that some clays later Merkel came to his desk
voluntarily and reiterated her story about the two men to himself and Marine.
Marine corroborated Pence's testimony as to the Merkel statement at Pence's desk.
Marine also testified that he only had this one talk with Merkel.
I am unable to credit the denials of Pence and Marine, or their explanations
-of what Merkel said about the Union (denied by Merkel). As heretofore found,
Merkel was a member of the Union before she last returned to work for the
Respondent in 1947. She was instrumental in getting a union representative to
come to Marion in the summer of 1.945 in order to interest the Respondent's
employees in the Union. She assisted the union business agent in meeting and
soliciting members among the Respondent's employees, and was the most active
among them in arranging union meetings. In other words .she did everything that
an active, loyal, union member could do to further the organizational campaign.
On the stand she appeared mature and sincere, giving the impression that she
would be utterly loyal to any cause she espoused. Furthermore, Merkel had no
need to curry favor with management. She had years of experience not only
with the Respondent but in other shoe manufacturing concerns. In fact, she was
invited by Marine and Pence to return to the Respondent in 1947 as a utility
operator 10 in the fitting room. Moreover, as has been found above, both Marine
and Pence were actively engaged in using their supervisory authority to discredit
the Union and to discourage union activities by employees under their control.
Under all these circumstances and from the entire record, I reject the denials and
-explanations of Pe:ice and Marine and find that each of them made the statements
substantially as attributed to them by Merkel.
In September, after Merkel's discharge, Pence questioned Ruth Himes about her
membership in the Union. He advised her not to join as any of the Union's
known leaders would be discharged. Pence admitted that Himes worked under
him but denied the above testimony of Himes or that he had ever talked to her
about the Union. He stated ( as Himes had testified he told her on the above
occasion) that employees frequently asked him what to do about the Union.
Pence's denial is rejected in view of the entire record herein.
Concluding this section of the Report I find that the Respondent, (a) by
Superintendent Marine's inquiring of Merkel about the union activities of the
employees and the address of the Union 's business manager, his statement to
Merkel that the Respondent would not recognize the Union and would leave
Marion if it came into the plant, his similar statement to Naomi Scott, Nellie
Alwine, and Sylvia McAllister and his comments to Scott and Alwine that the
advent of the Union in the plant might impair their investment in the Shoe
Manufacturers Realty Company, and his questioning of Harvey Leech, who had
attended a union meeting the night before, as to Leech's opinion of the Union
after Leech had been warned by his foreman, Vernerder (under instructions
from Marine to do so), to "watch where he went and to watch what he said, to
keep out of trouble" ; (b) by Foreman Pence's questioning of Merkel about
union activity in the plant and his warning to "keep her nose clean" about the
Union, his threat to Merkel that all employees active for the Union would be
10 A utility operator must be able to perform any operation in the department. He sub-
stitutes on call in case any machine operator is absent, and helps operators in case of trouble
or delay in getting out the work.
DALY BROS. SHOE CO., INC. 1291
out of work and that Respondent would move its plant if the Union came in,
his questioning of Betty Hoig about union activities and his implied threat she
might lose her job because of union activities, his similar questioning and threat
to Ruth Himes and his interrogating Evelyn Petrie relative to the Union ; and
(c) by Foreman Jacobs questioning of Phyllis Sanders whether she had a union
card, has interfered with, restrained, and coerced its employees in the rights
guaranteed in Section 7 and in violation of Section 3 (a) (1) of the Act.
2. Alleged surveillance of union meetings
As has been heretofore found, there was a union meeting at the Spencer Hotel
the evening of August 19. The meeting was in a room on the 2nd floor of the
hotel. Between 7 and 7: 30 p. in. as a number of employees entered the hotel
to attend this meeting they saw Superintendent Marine seated in the lobby read=
ing a newspaper. On August 26 a union meeting was held at 7: 30 p. in. in the
CIO Hall which is located on the 2nd floor of a building on East Fourth Street;
facing the Court House "Square." Betty Hoig was the only one of the Re-
spondent's employees who attended this meeting, other than Dorothy Merkel
who had been discharged 2 or 3 days before. Shortly after the meeting opened
Merkel recalled that she had forgotten some notes and Hoig volunteered to drive
her home to secure them. The car they used was parked across Fourth Street
in front of the Court House. The two descended the stairs and as they crossed
the street to enter the car they saw Marine sitting on a sidewalk bench facing
the union meeting place and almost directly across from it.
It is alleged in the complaint and denied by the Respondent that the two in-
cidents of August 19 and 26 above described constituted "surveillance" by the
Respondent of the activities of the employees on behalf of the Union.
In resolving this conflict, I take judicial notice that Marion is a comparatively
small city of about 35,000 population. The Respondent is one of its important
industries employing in excess of 300 production workers. The Spencer Hotel,
located on the corner of a block in the downtown business section of Marion, is
the largest and best hotel in the city. The County Court House occupies the
center of a city block immediately northeast of the hotel corner" and is sur-
rounded by a lawn. On the inside of the sidewalk on the 4 sides of the Court
House Square at intervals are benches facing across the various streets for the
convenience of residents and others who desire to use them. These benches
are occupied more or less, particularly in the evening.
I have studied this record very carefully relative to the surveillance testi-
mony in view of the fact that Marine's testimony has been discredited of other
material and disputed issues, and also because of his antiunion activities dur-
ing the same period as herein found. In this instance there is no dispute as to
what transpired either at the hotel or in front of the CIO Hall. Marine admits
that he was at the Spencer Hotel in the evening on two occasions in August
and that lie saw a number of employees in the lobby of the hotel in both in-
stances. He testified that on August 26 he was sitting on a bench on the west
side of the Court House Square when Merkel and Hoig crossed the street to
enter an automobile.
Under all the circumstances, I am convinced that the facts herein detailed do
not warrant or justify a finding that Marine went to the hotel or the square
11 There is nothing in the record to indicate the relative proximity of the hotel to the
Court House. However, I stayed at the hotel during the hearing and I am sure there can
be no dispute as to the actual location of these buildings.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of surveillance of a union meeting. Word of both meetings was
passed around to interested employees only by word of mouth, and there is no
evidence whatsoever that Marine, or anyone connected with management, knew
that a union meeting was pending on either,the 19th or the 26th, much less
where it was to be held. Furthermore, the hotel and certainly the Court House
Square were public places, and Marine had a right to be at either place. An
inference that he was at either the hotel or court house for an unlawful pur-
pose is not justified under the circumstances. I therefore find, as testified to
by Marine without denial, that on August 19 he was at the hotel either to meet a
United Shoe Machinery Company representative or because he had invited
Mrs. Marine to the hotel for dinner that evening, and that on August 26 he had
arranged to meet Personnel Manager Eisen on the west side of the Court House
Square about 7: 30 p. m. for a social evening (as Elsen also testified). I fur-
ther find that the Respondent did not engage in surveillance of union activities
as alleged in the complaint.
C. The discriminatory discharge of Dorothy Merkel
As had been previously found, Dorothy Merkel had been a production worker
in shoe factories for many years. In fact, she worked for about 10 years prior
to 1934 at the Marion Shoe Factory (the Respondent's predecessor in Marion),
and continued on for the Respondent when it opened its Marion plant in 1934.
In 1935 she moved to Rochester, New York, where she was employed continu-
ously in shoe factories until 1940. At that time she returned to Marion and
again worked for the Respondent until December 1942 when she left to accept
a better job in Chicago. In the spring of 1943, because of her mother's illness,
she again returned to Marion for 3 months. During this 3-month period, at
Foreman Pence's request, she worked for the Respondent. On returning to
Chicago she continued to work at various shoe factories until early 1947. In
March of that year, while in Marion over the weekend, she accepted an invi-
tation from Superintendent Marine and Foreman Pence to return to the Re-
spondent as a utility operator in the Fitting Department, and held this position
until her discharge on August 23, 1947.
The Respondent does not dispute Merkel's ability as a worker and in fact
Foreman Pence, her supervisor, testified that she was "a well qualified operator,
and had the makings of a line supervisor."
As has been heretofore found, Merkel was an old member of the Union and
played a leading part in the campaign to organize the employees in the summer
of 1948. The Respondent was aware of and disapproved of the union activity.
The circumstances immediately leading up to the discharge of Merkel are as
follows : Friday, August 20, following the August 19 union meeting, the plant (or
at least the Fitting Department where Merkel worked), was closed for some
undisclosed reason'2 Monday morning Merkel had a headache and did not
report for work. However, before starting time she sent her foreman the fol-
lowing note :
Bob I'm sorry fellow I won't be in today. I went to the Rodeo yesterday &
the result is a nasty headache. See you tomorrow.
(Signed) DonoTHY3
1 2 The plant did not operate on Saturdays.
is Merkel testified credibly and without denial that at the Sunday Rodeo she fell in
dismounting from a horse , and that the resulting headache continued through the night and
Monday.
DALY BROS . SHOE' CO., INC. 1293
When Merkel reported for work on Tuesday morning, she was discharged by
Pence for "absenteeism." Merkel questioned the reason for her discharge and
there is dispute as to what then transpired between them. It is Merkel's testi-
mony that Pence stated, "Well, I warned you, Dorothy to keep your nose cleaR,
that Mr. Lowey will have nothing to do with the union." On the other hand
Pence testified he told her, "I have warned you about your absenteeism, Dorothy,
and the heat is on me, and I will just have to discharge you."
Before resolving the above conflict, it is advisable to explore Merkel's absences
from work since her reemployment by the Respondent April 1, 1947.
The Respondent's Personnel Manager Elsen testified, without dispute, that the
time card " showed that in 1947 Merkel was absent from work 4 days in June,"
2 days in November and 1 in December. There is no showing that Merkel was
warned or criticized in 1947 for absenteeism. The Respondent had no paid
vacation policy but the employees were encouraged, whenever convenient, to
take time off at their own expense. Under such circumstances it certainly can-
not be inferred that 6 days absence from work during a 9-month period from
April 1 to the end of December 1947 constitutes an unreasonable amount of
absenteeism. I find that Merkel was not unduly absent from work in 1947.
In 1948 Merkel was away from work a total of 16/2 days, counting from the
first of the year to and including August 23 when she was discharged, as follows :
February 3, 9, 1.0, and half of the 27th, March 20, 25, and half of the 26th, April
5 (half), 19, 20, 21, and 22, May 24, 25, 26, and 28 (half), June S (half) and 30,
and August 23.
Merkel testified that she thought she had the measles about February 9 and 10,
and Elsen's September memorandum to the Field Examiner (not questioned as
to accuracy in this respect) also indicates she was ill on these dates. April 19
to and including the 22nd, Merkel was off duty because of a broken nose, as
testified to by both Merkel and Elsen and as appears from an unchallenged
portion of the September memorandum.
In explanation of her absence from work on May 24, 25, and 26, Merkel testi-
fied that she had been excused by her foreman so that she could make a trip
to Chicago. Pence denied that Merkel ever told him in advance that she would
be absent from work, or that he gave her permission to remain away or to go
to Chicago. Pence's testimony that Merkel never gave him notice when she
.was not going to work is not only in direct conflict with Merkel's testimony but
is contrary to other testimony in the record, including his own. He admitted
receiving Merkel's note the morning of August 23, explaining why she could not
work that clay, and Elsen.testified that his records showed several occasions in
1947 and 1948 Merkel had reported to Pence in advance explaining why she
would not come to work. I note also that the September memorandum (not
criticized by Elsen as being incorrect in that respect) has "moving" written after
the dates May 24, 25, and 26, 1948. This comment on the memorandum is not too
intelligible, but it does justify the inference that the Respondent at the time had
some information as to why Merkel was not working. Under the circumstances,
14 These time cards were at the hearing and available for inspection and use by the Gen-
eral Counsel.
"There is evidence in the form of a memorandum prepared for a Board Field Examiner
in September 1948 by Eisen indicating that Merkel was ill when she was absent in June
1947. Although Eisen testified that this memorandum was incorrect in that it included
some days in March 1948 when Merkel had been excused because of an injury, he did not
question the June 1947 notation thereon.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am unable to credit Pence's denial, and find that Merkel was granted permission
to be away from work on May 24, 25, and 26.18
It is Pence's testimony that Emma Pratt, the only other utility worker in the
Fitting Department besides Merkel, told him the week before August 23, that
she would have to go to the hospital for an operation, and that on Thursday,
August 19, he instructed Merkel to be sure and be on hand Monday (August 23)
because Pratt was "at the hospital." Personnel Manager Elsen also testified that
on August 23, Pence told him that he had personally instructed Merkel to be at
work Monday because Pratt was in the hospital for an operation.
Mrs. Pratt , no longer employed by the Respondent and called in rebuttal , testi-
fied in substance as follows : On Tuesday, August 17, she went home at noon after
telling Evelyn Petrie ( Pence not being there at the time ) that she was ill, and
that afternoon was informed by her doctor, after a physical examination, that
an appendectomy might be necessary but that she should go home and return
for further checking; that the doctor examined her on Wednesday and again
about 4 p. m. on Thursday, at which latter date he told her an operation was
required and that she should report at the hospital ; that she checked in at the
hospital at 6 p. in. that same night, Thursday, August 19, but was not operated
on until August 26. Pratt further testified that on August 19, after learning that
an immediate operation was necessary, she did not contact management in any
way to let the Respondent know of her condition.
I credit Pratt's testimony . Obviously , if Pratt herself did not know that
she was to be operated on until late Thursday, August 19, Pence could not have
had the information. Pence's testimony as to his instructions to Merkel on
August 19, denied by Merkel, is therefore rejected." I also credit Merkel's
undenied testimony that on August 19, and immediately prior thereto, she had
not been doing Pratt's work.
It thus appears, and I find, that Merkel was either excused or had a legitimate
excuse known to the Respondent for not working on February 9, 10, April 19 to 22,
May 24 to 26, and that she was away from work, apparently without permission
from management , 1% days in February, 2% days in March , 1/2 day each in
April and May and 1% days in June-a total.of 6% working days during a period
of over 8 months." I further find that Merkel's 1948 absences were not excessive,
and that, at the time of her discharge on August 24, Foreman Pence told her,
as testified to by Merkel, that she should have heeded his previous warnings as
to her union activity.
Assuming, arguendo, that Merkel's absences in 1948, and her few minutes tardi-
ness on 10 occasions in August of that year, gave the Respondent some concern,
her outright discharge cannot be accounted for on that ground, unless she had
"'Merkel testified that on the afternoon of June 30, she went to a chiropractor for a
treatment , but there is no evidence that she secured permission from the Respondent to leave
work for that purpose.
11 Pence testified that on August 19 he also urged Merkel to be in on Monday because it
was nearing the August 31 quarterly inventory period. He further testified that manage-
ment wanted the employees to turn out as much as it was possible of the work that was
"in process" during such period. While Pence as foreman may have had such instructions,
I am convinced from the entire record herein that on August 19 Pence gave no directions
whatsoever to Merkel about the following Monday.
'g Personnel Manager Elsen testified that Merkel ' s time card showed she reported late
for work on a number of mornings in August . An examination of this testimony shows
that Merkel was late a total of 36 minutes the first week , 16 minutes the second week and
14 minutes the third week of that month-a total of 66 minutes . This testimony presum-
ably was offered to bolster the absenteeism charge against Merkel ; but there is no evidence
that she was ever warned or even criticized for this tardiness.
DALY BROS. SHOE' CO., INC. 1295
been previously given adequate warning that such action would be taken by
the Respondent . But there was no such previous warning . The only reference
in the record of any criticism by management of Merkel 's prior absences is the
following testimony of Pence, denied by Merkel :
Q. Now, Bob, in the past have you had occasion to talk with Mrs. Merkel
in reference to her absence at times from the plant?
A. Yes, Sir.
Q. During the period of January 1, 1948 to August of 1948, how many
times would you say that you had talked with her on that subject?
A. Oh, I would say several times, four or five.
Q. Were all of these conversations in your Department?
A. Yes, Sir.
Q. Do you remember any specific conversation that you had with her
at any time on this subject.
A. Of absenteeism?
Q. Yes?
A. No. I have had several. I don't remember just any specific one.
Q. Can you relate anything that you had said to her in any of those
conversations?
A. No.
Q. Can you give the substance of anything that you may have said to
her in any of them?
A. I told her about her absenteeism, that I wanted her to stay here and
be in here every day, because she was and she is a well qualified operator,
and she had the makings of a line supervisor, and I have often told her so.
She is very capable to supervise a line of women.
Nowhere in the above testimony of Pence is there to be found any notice to
Merkel that the next time she was absent from work without a good excuse she
would be discharged. At the most it was an -instruction that she make it a
point to be on hand every day because her abilities as a work woman were in
demand. Furthermore , a "nasty headache " is certainly a legitimate reason for
not reporting for work on August 23.
From the record as a whole I find that Merkel was not unduly absent from
work prior to August 23 and had not been warned or criticized for absenteeism ;
that Respondent knew she had a legitimate reason for being absent on August 23;
that her discharge the next day allegedly for absenteeism was a subterfuge,
without substantial basis of fact, and that the real reason for the discharge and
failure thereafter to reinstate Merkel was her known leadership in the Union's
activities 1'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in Section III, above , occurring
in connection with the operations of the Respondent set forth in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
19 Respondent introduced testimony that in early August , Merkel while using a machine
to sew a fancy stitch, spoiled the vamps of either 24 or 48 pairs of shoes. Merkel admitted
the occurrence. The record shows that other operators performing the same operation
have also spoiled vamps of shoes. Pence's testimony , denied by Merkel , is that several
days after the Merkel incident he spoke to her about the damage and she promised to do
better. I find it unnecessary to resolve this conflict as the Respondent concedes Merkel's
ability as a workwoman and it is not contended she was discharged on August 24 because of
poor work , or to penalize her because of loss to the Respondent due to the damaged vamps.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce. and the free flow of commerce.
v. THE RF3IFDY
Having found that the Respondent has engaged in and is engaging in certain un-
fair labor practices, it will be recommended that the Respondent cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
It has been found that the Respondent discriminatorily discharged Dorothy
Merkel. It will therefor be recommended that the Respondent offer to Merkel
immediate and full reinstatement to her former or substantially equivalent posi-
tion,20 without prejudice to her seniority or other rights and privileges, and make
her whole for any loss of pay she may have suffered by reason of the Respondent's
discrimination against her by payment to her of a sum of money equal to that
which she normally would have earned as wages from the date of her discharge
to the date of the offer of reinstatement less her net earnings during said period: 1
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, CIO, 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 Dorothy
Merkel, thereby discouraging membership in the United Shoe Workers of America,
CIO, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section S (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
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 (a) (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
5. The Respondent-has not engaged in survellance of the activities of its em-
ployees on behalf of the Union in. violation of Section S (a) • (1) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the Respondent, Daly Bros. Shoe Co., Inc., Marion, Indiana, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Shoe Workers of America, CIO, or
in any other labor organization of its employees, by discriminatorily discharging
or refusing to reinstate any of its employees, or discriminating in any other
manner in regard to their hire and tenure of employment or any terms or condi-
tions of employment; -
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form labor organizations, to
join or assist United Shoe Workers of America, CIO, or any other labor organiza-
20 Chase National Bank, etc., 65 N. L. R. B. 827.
21 Crossett Lumber Company, etc., 8 N. L. R. B. 440 ; Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
DALY BROS. SHOE' CO., INC. 1297
lion, to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the purposes
of the Act :
(a) Offer to Dorothy Merkel immediate and full reinstatement to her former
or substantially equivalent position without prejudice to her seniority or other
rights and privileges;
(b) Make whole Dorothy Merkel for any loss of pay she may have suffered by
reason of the Respondent's discrimination against her in the manner set forth
in the Section entitled "The remedy" ;
(c) Post at its plant in Marion, Indiana, copies of the notice attached hereto
and marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall, after being duly signed by the Respond-
ent or its representative, be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of sixty (60) consecutive clays there-
after in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Thirteenth Region in writing within
twenty (20) days from the receipt of this Intermediate Report what steps the
Respondent has taken to comply herewith.
It is further recommelded that unless on or before twenty (20) days from the
receipt of this intermediate Report the Respondent notifies said Regional Direc-
tor in writing that lie will comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the Respondent to take the
action aforesaid.
It is also recommended that the complaint be dismissed insofar as it alleges that
the Respondent engaged in surveillance of the activities of its employees on behalf
of the Union in violation of Section 8 (a) (1) of the Act.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the (late
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
-an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order or to any other part of
.the record or proceeding (including rulings upon all motions or objections) as
he relies upon, together with the original and six copies of a brief in support
thereof ; and any party may, within the same period, file an original and six
copies of a brief in support of the intermediate Report and Recommended Order.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Statements of exceptions and briefs shall designate by precise citation the por-
tions of the record relied upon and shall be legibly printed or mimeographed, and
if mimeographed shall be double spaced. Proof of service on the other parties
of all papers filed with the Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46, should any party desire per-
mission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the (late of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and al: objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 29th day of July 1949.
J. J. FITZPATRICK,
Trial Examiner.
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 Labor Management
Relations Act, 1947, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations , to join or assist UNITED SHOE WORKERS OF AMERICA, CIO, or
any other labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to refrain from
any or all of such activities.
WE WILL OFFER to the employee named below immediate and full rein-
statement to her former or a substantially equivalent position without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make her whole for any loss of pay suffered as the result of the dis-
crimination.
Dorothy Merkel
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
DALY BROS. SHOE Co ., INC.,
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.