Eastern Footwear Corp.

National Labor Relations Board - Board Decisions

Sep 26, 1938

8 N.L.R.B. 1245 (N.L.R.B. 1938)

In the Matter Of EASTERN FOOTWEAR CORPORATION and BOOT AND
SHOE WORKERS UNION
Case No. C-632.-Decided September 26, 1938
Shoe Manufacturing Industry -Interference, Restraint , and Coercion: anti-
union statements ; expressed opposition to outside labor organization ; warning
employees to cease union activities-Company-Dominated Union: domination of
and interference with formation and administration ; support ; suggesting forma-
tion ; permitting circulation of petition favoring , in plant during working
hours ; directing and permitting organizational meeting in plant during working
hours ; requiring payment of dues to ; supplying name and bylaws ; respondent
ordered to withdraw recognition from and disestablish as agency for collective-
bargaining ; further ordered to cease giving effect to contract with and to all
similar contracts with individual employees negotiated through-Discrimina-
tion: discharges ; for union membership and activity ; charges of , not sustained
as to one employee-Reinstatement Ordered: discharged employees ; refusal to
accept position other than that formerly held, not prejudicial to right of rein-
statement-Back Pay: awarded.
Mr. Edward D. Flaherty, for the Board.
Mr. Francis J. Stewart, of Dolgeville, N. Y., for the respondent.
Mr. John J. Walsh, of Utica, N. Y., for the B. &. S. W. U.
Mr. Guy Farmer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Boot and Shoe Workers Union, herein
called the B. & S. W. U., the National Labor Relations Board, herein
called the Board, by Henry J. Winters, Regional Director for the
Third Region (Buffalo, New York), issued its complaint, dated
October 19, 1937, against Eastern Footwear Corporation, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act.
The complaint alleged in substance (1) that the respondent had
interfered with, restrained, and coerced employees in the exercise of
8 N. L. R. B., No. 154.
1245
1246 NATIONAL LABOR RELATIONS BOARD
the rights guaranteed by Section 7 of the Act by urging, persuading,
and warning them to refrain from becoming or remaining members
of the B. & S. W. U.; (2) that the respondent had dominated and
interfered with the formation and administration of, and contributed
support to, a labor organization known as Eastern Footwear Cor-
poration Workers Union, herein called the E. F. U.; and (3) that
the respondent had discharged Charles DeMay, Emilie DeMay, and
William Haak for union activities, thereby discouraging membership
in the B. & S. W. U. Copies of the complaint, accompanied by
notices of hearing, were duly served upon the respondent, the B. & S.
W. U., and the E. F. U. The respondent duly filed an answer denying
the material allegations of the complaint.
Pursuant to the notice, a hearing was held on November 1, 2, and
3, 1937, at Dolgeville, New York, before James C. Paradise, the Trial
Examiner duly designated by the Board.
At the hearing, various employees of the respondent failed to
respond to subpenas duly served upon them requiring their attend-
ance, and Dominick J. Calderazzo, president of the respondent, failed
to produce certain documentary evidence described in a subpoena duces
tecum duly served upon him by the Board. Likewise, at the hearing,
Calderazzo refused to answer questions propounded by counsel for
the Board. Accordingly, the record was left open at the conclusion
of the hearing on November 3, 1937. Subsequently, on February 16,
1938, upon application of the Board, the United States District Court
for the northern district of New York ordered Calderazzo and the said
employees of the respondent to appear before the Trial Examiner of
the Board at Dolgeville, New York, on March 3, 1938, and there to
answer all relevant and material questions which might be propounded
by counsel for the Board. The Court further ordered Calderazzo to
produce, at the time and place aforesaid, all of the documentary
evidence described in the subpoena duces tecum which had been issued
and served upon him by the Board. Pursuant to the order and to a
notice of hearing a supplemental hearing was held on March 3, 1938,
at Dolgeville, New York, before Samuel Jaffe, the Trial Examiner
duly designated by the Board.
The Board, the respondent and the B. & S. W. U. were represented
by counsel and participated in both hearings. The E. F. U. did not
appear or participate in either hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi.
dence bearing on the issues was afforded all parties. During the
course of the hearings the Trial Examiner made several rulings on
motions and on objections to the admission of evidence. The Board
has reviewed such rulings and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
DECISIONS AND ORDERS. 1247
On April 3, 1938 , the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon all parties, in which he
found that the respondent had engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (2), and
(3) and Section 2 (6) and (7) of the Act, but that the respondent
had not engaged in an unfair practice with respect to the discharge
of William Haak. He recommended that the respondent cease and
desist from its unfair labor practices, disestablish and withdraw all
recognition from the E. F. U., and offer Charles DeMay and Emilie
DeMay reinstatement to their former positions with back pay. He
recommended further that the allegations of the complaint relative
to the discharge of William Haak be dismissed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Eastern Footwear Corporation, a New York corporation, having
its principal office at 68 34th Street, Brooklyn, New York, is engaged
in the manufacture and sale of shoes. These operations are con-
ducted in two plants located at Brooklyn and Dolgeville, New York,
respectively.
The respondent purchases annually raw materials valued at more
than $250,000, while its annual sales exceed $1,000,000 in value.
More than 90 per cent of the raw materials purchased for the Dolge-
Ville plant, which is the only plant here involved, are obtained out-
side the State of New, York. Likewise, 90 per cent of its finished
products are shipped to customers outside the State.
The respondent employs at the Dolgeville plant about 300 persons,
including approximately 225 production workers.
II. THE ORGANIZATIONS INVOLVED
Boot and Shoe Workers Union is a labor organization affiliated
with the American Federation of Labor, admitting to its member-
ship workers in the shoe manufacturing industry.
Eastern Footwear Corporation Workers Union, is an unaffiliated
labor organization, admitting to its membership employees of the
respondent at the Dolgeville plant.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; domination of the E. F. U.
In May 1937, the B. & S. W. U. began its organizational activities
at the Dolgeville plant. Almost immediately the respondent began
1248 NATIONAL LABOR RELATIONS BOARD
an active campaign against the B. & S. W. U. and in favor of an
inside union.
Early in May, Charles Hodges, millwright foreman, warned
Charles DeMay, an active B. & S. W. U. member, concerning his
union activities; stated that Calderazzo would move his plant rather
than tolerate an outside union ; and suggested that DeMay help or-
ganize an independent or plant union.
Subsequently, on May 27, DeMay was summoned to Calderazzo's
office. There, Calderazzo informed DeMay of reports that DeMay
and his wife had attended B. & S. W. U. meetings; stated that unions
generally were "rackets" interested solely in the collection of dues
and that he would not tolerate a union in his plant; stated that he
would have discharged DeMay immediately on learning of his union
activity had it not been for his excellent record; suggested that "a
little union of our own," would be acceptable to him ; and finally
advised DeMay to "think things over," concluding, however, that "if
anyone didn't play ball with him he would ride them hard." On
the afternoon of the same day DeMay informed Calderazzo of his
decision to remain loyal to the B. & S. W. U. Whereupon, Calderaz-
zo "flew out of his chair and landed his fists on the desk and said I
(DeMay) had my way and that he would have his."
Likewise, on that same day, Calderazzo called Albert Hunt and
Jerry Fusco, employees at the Dolgeville plant, into Calderazzo's
office and strongly denounced unions. Calderazzo further stated at
that time that he would give up his Dolgeville plant before accepting
an outside union and again suggested the formation of an inside
union similar to that at respondent's Brooklyn plant.
Shortly after Calderazzo and Hodges suggested formation of an
inside union, organization of such union began. Peter J. Wood, an
employee, was particularly active relative to such organization. He
testified that he attended two meetings of the B. & S. W. U. and
decided to organize an "independent" union when it appeared that
the B. & S. W. U. had not obtained the support of a majority of
the employees. Wood advanced the following reason for his activi-
ties: "Why after all, (I) probably saw that everybody was going
unionism. It was a fad like the `Big Apple' that they danced . . ."
Wood stated, however, that before beginning his activities he
inquired of Calderazzo concerning his rights in the matter. He
testified that Calderazzo said that "the Government gives you the
right for collective bargaining and to join any union you want to."
The evidence shows that on June 1, 1937, during working hours
the signatures of workers were solicited to slips of paper containing
a statement approving an "Independent Collective Bargaining Com-
mittee." Joe Condella, who is described by one witness as a "floor-
man" who "takes care of work and gives people work, keeps track
DECISIONS AND ORDERS 1249
of the way work is," took an active part in obtaining the signatures.
It appears that these activities were conducted with the approval of a
number of respondent's foremen. When Ada Atkins, an employee,
upon seeing an employee approaching with one of the papers, in-
quired of her foreman why the slips were being circulated, the latter
replied, "maybe if you wait long, you will find out, you might lose
your job." This statement can reasonably be construed only as a
warning that refusal to give signed approval to the "Independent
Collective Bargaining Committee" might result in discharge.
Immediately following the circulation of the slips of paper, on
June 3, 1937, at 11: 30 a. m., work in the plant was discontinued, all
power turned off, and the employees directed by their supervisors
and others to attend a meeting in the plant. This meeting continued
until noon. After Peter Wood, who presided, had spoken con-
cerning "independent" collective bargaining, officers and committee
members were elected.
Shortly thereafter, the bargaining committee, elected at the meet-
ing described above, met with Calderazzo. From the evidence it is
clear that the committee had neither formulated any specific de-
mands nor arrived at any clear conception of its function. The com-
mittee stated to Calderazzo that it desired an "independent" col-
lective bargaining union, whereupon Calderazzo replied that such a
union existed at his Brooklyn plant and that he had executed a satis-
factory contract with the Brooklyn union. Several days later Cal-
derazzo provided the committee with a copy of the Brooklyn con-
tract, which had been drafted by one of the respondent's attorneys,
and with a copy of the bylaws of the Brooklyn union. At Calder-
azzo's suggestion, the committee submitted the contract and the by-
laws to the employees at a general meeting for approval. After
such approval was obtained, the committee signed a contract which
was substantially identical with the Brooklyn contract. The com-
mittee also adopted the name "Eastern Footwear Corporation Work-
ers Union," which was the name used by the union at the Brooklyn
plant. The respondent thereafter presented the contract to all the
production employees at the Dolgeville plant for their individual
signatures. The evidence indicates that all the production em-
ployees signed. A number of employees testified that they signed
because they "needed the job and wanted to work."
Part of the contract, which bears the date June 9, 1937, provides,
in substance, as follows :
1. The employees have no right to the recognition of any union.
2. The employer has the absolute and unqualified right to
hire or discharge any employee or employees for any reason or
for no reason (and) the question of the propriety of any em-
1250 NATIONAL LABOR RELATIONS BOARD
ployee's discharge is in no event to be one for arbitration or
mediation.
3. The employees agree that "they or any of them will not go
on strike" before June 30, 1942.
It appears from the testimony that the employees were also re-
quired to pay dues to the E. F. U. as a condition of employment
pursuant to Calderazzo's instruction to the bargaining committee
of the E. F. U. that such a plan should be put into effect once a
majority of the workers had signed the aforesaid contract. The
evidence indicates that Reba Miller's foreman stated that if she
refused to pay dues "they will tell me to fire you," and that Edward
Ortlieb began paying dues after the respondent's superintendent
told him that the respondent desired his "cooperation" with the
E. F. U. in the matter.
We find that by the above acts the respondent has dominated and
interfered with the formation and administration of the E. F. U.,
and has contributed support thereto, and that the respond-
ent has thereby interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act.
B. The discharges
Charles Delray was employed by the respondent about February
11, 1937. From that date until June 2, 1937, DeMay had charge
of the stockroom which supplied raw materials to the various de-
partments. As noted above, Calderazzo, on May 27, 1937, ques-
tioned DeMay concerning his activities on behalf of the B. & S. W. U.
and the activities of Emilie DeMay, his wife ; evinced strong dis-
approval of the B. & S. W. U.; suggested that DeMay assist in the
formation of an inside union; and finally admonished DeMay to
"think things over." We have also found that when DeMay in-
formed Calderazzo that he would remain loyal to the B. & S. W. U.,
Calderazzo spoke in threatening terms to DeMay. On the same
clay, Emilie DeMay 'was laid off by Vanderman, her foreman,
allegedly because of lack of work. The following day Charles
DeMay inquired of Vanderman the "true" reason for such action.
When the latter refused to answer, DeMay asserted that Calderazzo
was "striking back at him." A few minutes later Clark, the plant
superintendent, rebuked DeMay for questioning Vanderman and
asserted "you were warned once and now I warn you again and
the next time I have to warn you you will lose your job."
Shortly thereafter, on June 2, 1937, Clark relieved DeMay of his
stockroom duties and told him to work under Charles Hodges, mill-
wright foreman. The latter first assigned DeMay the task of helping
clean 1,150 shoe bins which respondent had not been using and then
DECISIONS AND ORDERS 1251
the job of shellacking shoe racks. The following day DeMay was
ordered to help two employees who customarily did painting and odd
jobs around the plant remove an old elevator shaft. At about 15
minutes before the end of the working day Hodges directed DeMay
to crawl under the bottom of the shaft to loosen several bolts found
there. DeMay, who was dressed in comparatively clean clothing
appropriate for his stockroom duties, found upon inspection that
the bottom of the shaft was extremely dirty and requested that he
be allowed to perform the task the following morning at which time
he could be more suitably dressed. Hodges immediately ordered
DeMay to "tell Mr. Clark there is no more work for you." DeMay
was unable to find Clark until the following morning at which time
DeMay was discharged.
In its answer, the respondent asserted that DeMay was transferred
from the stockroom to the maintenance department because of his
incompetence, unreliability, and insubordination. It is clear, how-
ever, in view of all the facts, that DeMay's transfer and subsequent
discharge was not so caused. Indeed, the only evidence which would
in any manner support the assertion that DeMay was incompetent,
unreliable, or insubordinate, was his admission that on occasion he
failed to punch his time clock and that he had several times been
absent from the stockroom a few minutes during working hours.
The record does not show, however, that he was ever reprimanded
at any time for these irregularities.
We find that the respondent discriminated on June 2, 1937, by the
transfer of Charles DeMay and subsequently, on June 3, 1937, by his
discharge, thereby encouraging membership in the E. F. U. and dis-
couraging membership in the B. & S. W. U.
At the hearing on November 2, 1937, the respondent offered DeMay
a job under Hodges in the maintenance department. DeMay refused
the offer. We find that such refusal in no manner prejudices
DeMay's right herein. He was entitled to the job in the stockroom
which he held prior to the date on which the respondent first
discriminated in regard to his employment.
At the subsequent hearing on March 3, 1938, Calderazzo testified
that DeMay was again in the respondent's employ. There is no
evidence indicating the nature of the job, if any, which DeMay was
given. Nor does it appear whether he has been recompensed for
any loss of earnings resulting from his discharge. Calderazzo also
testified that DeMay had signed an affidavit that he had not been
discharged by the respondent. The alleged affidavit was not made
part of the record. Calderazzo's statement and the alleged affidavit,
therefore, cannot affect our order in this case.
Emilie DeMay was employed by the respondent about March 1,
1937. From that time until May 27, 1937, she was engaged as a sole
117213-39-vol 8-80
1252 NATIONAL LABOR RELATIONS BOARD
bleacher . Although a helper, Mrs. Decker , was taken on upon oc-
casions when the work was heavy, Mrs. DeMay was the only person
regularly so employed . She was a member of the B. & S. W. U. and
was an active participant therein.
We have already noted that Emilie DeMay was "laid off" by her
foreman on May 27, 1937 , shortly after Calderazzo had questioned
her husband , Charles DeMay, concerning his and his wife's union
activities and after Charles DeMay had refused to withdraw from
the B . & S. W. U. At the time Emilie DeMay was informed that,
the lay-off was for "a week or ten days" and because of a lack of
work. The following morning, however , Mrs. Decker was called in
and given regular employment as a sole bleacher . After the B. &
S. W. U. filed charges with the Board alleging that Emilie DeMay
had been discriminatorily discharged , the respondent , on about
August 18 , 1937, offered her work as an "extra," assisting Mrs.
Decker. Mrs. DeMay rejected this ' proposal but offered to return
to her former position . The respondent refused to give her such
employment.
We find that the respondent discriminated by the discharge of
Emilie DeMay on May 27 , 1937, thereby encouraging member-
ship in the E. F. U. and discouraging membership in the B. & S.
W. U. We find also that the refusal of Emilie DeMay to accept
the offer of the respondent of a job as an "extra" does not prejudice
any of her rights herein.
William Haak was employed by the respondent as a machine op-
erator. He was a member of the B. & S. W. U. and attended a
number of its meetings during May 1937. During June 1937 he
expressed opposition to an inside union to a number of employees.
including Kenneth Arnold , a brother of his foreman , Olin Arnold.
About September 3, 1937, Olin Arnold charged that Haak had re-
moved a guard from a machine and a heated argument ensued. In
its answer the respondent states that following the argument Haak
quit. Haak -testified that Arnold stated "if I wanted to work there.
I was to do as I was told ;" that he (Haak ) replied "if he did not
want me to work there why not give me my pay, as I was doing
as I was, told ;" and that shortly thereafter he was given his pay
which indicated a discharge . Subsequently Haak obtained other
employment and does not desire reinstatement.
We find that the respondent did not discriminate in regard to the
hire and tenure of employment of William Haak. The allegations
of the complaint with respect to Haak will , therefore , be dismissed.
THE REMEDY
We have found that the respondent has interfered with , restrained,
and coerced its employees in the right to self-organization , and has
DECISIONS AND ORDERS 1253
dominated and interfered with the formation and administration of,
and contributed support to, the E. F. U. We shall order the respond-
ent to cease and desist from such conduct and to withdraw all recog-
nition from and disestablish the E. F. U. as the representative of any
of its employees for the purposes of collective bargaining. We have
further found that the respondent executed, on June 9, 1937, an
agreement with the bargaining committee of the E. F. U. and that the
respondent negotiated through said bargaining committee similar
contracts with individual employees. We shall order the respond-
ent to cease and desist from giving effect to all said agreements.
We have found also that the respondent has discriminated in re-
gard to the hire and tenure of employment by discharging Emilie
DeMay on May 27, 1937, and Charles DeMay on June 3, 1937. We
shall order the respondent to offer Emilie DeMay and Charles De-
May immediate and full reinstatement, without prejudice to their
seniority and other rights and privileges, and to make them whole
for any loss of pay they have suffered by reason of their respective
discharges by payment to each of them 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 earn-
ings 1 during said period.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Boot and Shoe Workers Union and Eastern Footwear Corpora-
tion Workers Union are labor organizations, within the meaning of
Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of, and contributing support to, Eastern
Footwear Corporation Workers Union, has engaged in and is engag-
ing in unfair labor practices, within the meaning of Section 8 (2)
of the Act.
3. The respondent, by discriminating in regard to the hire and
tenure of employment of Charles DeMay and Emilie DeMay, thereby
encouraging membership in Eastern Footwear Corporation Workers
Union and discouraging membership in Boot and Shoe Workers
Union, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
1 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 Unn.ted Brotherhood of Carpenters and Joiners or
America, Lumber and Sawmill Workers, Local No. 2590, 8 N. L. It. B. 440.
1254 NATIONAL LABOR RELATIONS BOARD
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section 2 (6) and (7) of the Act.
6. The respondent has not discriminated in regard to the hire and
tenure of employment of William Haak, 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 re-
spondent, Eastern Footwear Corporation, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of Eastern Footwear Corporation Workers Union, or with the
formation and administration of any other labor organization of its
employees, and from contributing support to Eastern Footwear Cor-
poration Workers Union or to any other labor organization of its
employees ;
(b) Discouraging membership in Boot and Shoe Workers Union
or any other labor organization of its employees, by discharging
its employees, or in any other manner discriminating against its em-
ployees in regard to hire and tenure of employment, or any condition
of employment;
(c) Giving effect to the agreement of June 9, 1937, with the bar-
gaining committee of Eastern Footwear Corporation Workers Union
and all similar agreements signed by individual employees;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed 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 the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Eastern Footwear Corpora-
tion Workers Union, as a representative of any of its employees for
the purposes of dealing with the company concerning grievances,
labor disputes, rates of pay, wages, hours of employment, or other
DECISIONS AND ORDERS 1255
conditions of employment, and completely disestablish said Eastern
Footwear Corporation Workers Union as such representative;
(b) Offer Emilie DeMay and Charles DeMay immediate and full
reinstatement to their former positions, without prejudice to their
seniority or other rights and privileges;
(c) Make whole Emilie DeMay and Charles DeMay for any loss
of pay they may have suffered by reason of their respective dis-
charges, by payment to each of them of a sum of money equal to
the amount which he would normally have earned as wages during
the period from the date of his discharge to the date of said offer of
reinstatement, less his net earnings during said period;
(d) Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of thirty (30) consecu-
tive days, stating (1) that the respondent will cease and desist as
aforesaid; (2) that the respondent withdraws all recognition from
the Eastern Footwear Corporation Workers Union as a representative
of any of its employees for the purpose of dealing with the company
concerning grievances, labor disputes, rates of pay, wages, hours of
employment, and conditions of employment, and completely disestab-
lishes it as such representative; and (3) that the respondent will not
give effect to the agreement of June 9, 1937, between the respondent
and the bargaining committee of Eastern Footwear Workers Union,
or any of the similar agreements signed by individual employees;
(e) Notify the Regional Director for the Third 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 in so far as it alleges that the respondent discriminated in
regard to the hire and tenure of employment of William Haak.
MR. DONALD WAKEFIELD SMITH took no part in the consideration of
the above Decision and Order.