Gutmann & Co.

National Labor Relations Board - Board Decisions

Dec 1, 1939

18 N.L.R.B. 64 (N.L.R.B. 1939)

In the Matter of GUTMANN & COMPANY and NATIONAL LEATHER
WORKERS ASSOCIATION, LOCAL 43
Case No. C-1021.-Decided December 1, 1939
Leather Manufacturing Industry-Interference, Restraint, and Coercion-Com-
pany-Dominated Union: domination and interference with formation and admin-
istration : support : circulation of letter purporting to inform employees of
their rights under the Act at about time unaffiliated labor organization
commenced drive for membership, stressing negative aspects of the Act, sug-
gesting employees could form organization "entirely their own," and inferring
that employees would be burdened with strikes and unemployment and would
forego steady employment, high wages, and harmony and confidence, which
had prevailed prior thereto, if they joined the affiliated labor organization
then seeking their favor ; discrimination in favor of: respondent ignored request
of affiliated organization for recognition and hastened to acknowledge Inde-
pendent's request by posting its answer throughout the plant that it would
bargain with Independent if satisfied that it represented a majority and
attempt to arrive at an understanding with respect to proposals for collective
bargaining made by the Independent; preference for, thereby indicating to
employees that they could profit through Independent but not through any
other organization ; depriving affiliated organization of the assistance of two
of its leaders whom the respondent had agreed to reinstate in accordance with
recommendations made by Trial Examiner in proceeding antedating this pro-
ceeding, by excluding them from the plant although paying their wages, in
order to assist Independent in soliciting members in the plant ; respondent
ordered to disestablish Independent-Cheek-Off: for company-dominated union,
employer ordered to reimburse employees for-Discrimination: discharges :
charges of, not sustained.
Mr. Herbert N. Shenkin, for the Board.
Jacobson, Merrick, Nierman c Silbert, by Mr. David Silbert and
Mr. Robert B. Shapiro, of Chicago, Ill., for the respondent.
Mr. Henry M. Tufo, of Chicago, Ill., for the Independent.
Mr. Theodore W. Kheel, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by National Leather
Workers Association, Local 43,1 herein called the N. L. W. A., the
1 The charge was filed by United Tannery Workers of America, affiliated with the Com-
mittee for Industrial Organization . Thereafter this union changed its name to National
Leather Workers Union , Local 43. The amended charges were filed by the Union under
the latter name.
18 N. L. R. B., No. 1.1.
64
GUTMANN & COMPANY 65
National Labor Relations Board, herein called the Board, by the
Regional Director for the Thirteenth Region (Chicago, Illinois), on
July 21, 1938, issued its complaint against Gutmann & Company,
Chicago, Illinois, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (2),
and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. The complaint alleged
in substance that the respondent dominated, supported, and inter-
ferred with the formation and administration of a labor organiza-
tion known as the Independent Tanners Union, herein called the
Independent; that the respondent temporarily laid off, gave irregu-
lar and discontinuous employment to, and otherwise discriminated
against, Henry Hanson, Stephen Holland, and Fred Lang, and tem-
porarily laid off Conrad Edelstein because said employees had joined
and assisted the N. L. W. A.; and that by the foregoing acts, by
advising, urging, and warning its employees to become members
of the Independent and to refrain from becoming members of the
N. L. W. A, and by various other acts, the respondent interferred
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Copies of the complaint and notice of hearing were duly served
on the respondent and the N. L. W. A. On August 17, 1938, the
respondent filed a written answer to the complaint, admitting certain
allegations pertaining to its business but denying that its operations
affected commerce among the several States or that it had engaged in
the alleged unfair labor practices.
. Pursuant to notice, a hearing was held in Chicago, Illinois, from
August 18 through 27, 1938, before J. J. Fitzpatrick, the Trial Ex-
aminer duly designated by the Board. The Board, the respondent, and
the Independent were represented by counsel. At the opening of the
hearing, the Independent appeared by counsel and moved to intervene.
It had made a similar motion prior to the hearing, which was denied
by the Regional Director. The Trial Examiner also denied the mo-
tion, but made a supplementary ruling permitting the Independent to
intervene solely for the purpose of meeting the charge in the com-
plaint that it was dominated, supported, and interfered with in its
formation and administration by the respondent. Except for this
limitation upon the Independent, all parties participated in the hear-
ing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues.
On July 28, 1938, the respondent had filed with the Regional Di-
rector a motion for an order striking the complaint or in the alterna-
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive for an order requiring the Board and the N. L. W. A. to file a
bill of particulars. setting forth the facts constituting the alleged
unfair labor practices. This motion, which was not passed upon
prior to the hearing, was renewed at the hearing. 'At the conclusion
of the Board's case and again at the termination of the hearing, the
respondent moved to dismiss the complaint. The Trial Examiner
denied all of the aforesaid motions. During the course of the hearing
rulings were made by the Trial Examiner on other motions and on
objections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On November 2, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon all the parties, in
which he found that the respondent had engaged in unfair labor prac-
tices within the meaning of Section 8 (1) and (2) and Section 2 (6)
and (7) of the Act and that the respondent had not engaged in unfair
labor practices within the meaning of Section 8 (3) of the Act. The
Trial Examiner recommended that the respondent cease and desist
from such unfair labor practices and, in addition, withdraw all recog-
nition from the Independent as representative of its employees for the
purposes of collective bargaining. He also recommended that the com-
plaint be dismissed in so far as it charged the respondent with unfair
labor practices with respect to Henry Hanson, Stephen Holland,
Fred Lang, and Conrad Edelstein.
Exceptions to the Intermediate Report were filed subsequently by
the respondent and the Independent. On September 12,1939, pursuant
to notice duly served upon all the parties, a hearing for the purpose
of oral argument was held.before the Board at Washington, D. C.
Only the respondent appeared by counsel and participated. The
Board has reviewed the exceptions to the Intermediate Report, and,
in so far as they are inconsistent with the findings, conclusions, and
order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Gutmann & Company is an Illinois corporation engaged in the
manufacture of leather in Chicago, Illinois. In 1937 it manufac-
tured and sold finished products amounting in value to $2,292,000,
of which. approximately 70 per cent were shipped to places outside
the State of Illinois. The sale and distribution of these products
were consummated through the Gutmann Leather Company, an Illi-
GUTMANN & COMPANY 67
nois corporation, which purchased products manufactured by the
respondent and then resold them to customers throughout the coun-
try. The Gutmann Leather Company is largely owned and con-
trolled by the same persons who own and control the respondent.
Cattle and horse hides are the principal raw materials used by
the respondent in manufacture. In 1937 it purchased all its cattle
and horse hides, amounting to 216,000 hides, from Elkan & Com-
pany, of Chicago, Illinois. Ninety per cent of these hides were
shipped to the respondent by Elkan & Company from Chicago, Illi-
nois, while the remaining 10 per cent were shipped to the respondent
from paces outside the State of Illinois. Seventy-five per cent of
all the hides purchased by the respondent in 1937 were derived from
sources outside the State of Illinois. In 1937 the respondent
expended $327,940 for such miscellaneous raw materials as dyes,
chromes, fats, liquors, salt, and lime. Approximately 60 per cent of
these raw materials originated outside the State of Illinois, although
all of them were purchased in the State of Illinois.
II. THE ORGANIZATIONS INVOLVED
National Leather Workers Association, Local 43, is a labor organ-
ization affiliated with the Congress of Industrial Organizations.
It is an outgrowth of United Leather Workers Union, Local 79,
which was organized in July 1935. Originally, United Leather
Workers Union, Local 79, was affiliated with the American Federa-
tion of Labor. It transferred its affiliation to the Committee for
Industrial Organization in March 1937. The N. L. W. A. admits
to membership all production and maintenance employees of the
respondent, excluding clerical and supervisory employees.
Independent Tanners Union is a labor organization whose mem-
bership is limited to employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background of the Independent
A union, known as the Workers' Cooperative and Benefit Associa-
tion, was organized among the employees of the respondent in the
fall of 1934. On April 20, 1936, following charges filed by United
Leather Workers Union, Local 79, the predecessor of the N. L. W. A.,
the Board issued a complaint charging, inter alia, that the respond-
ent had dominated and interfered with the organization and admin-
istration of this union and had contributed financial and other sup-
port to it. It also averred that the respondent had discriminatorily
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged Rudolph Burkey, John Tollick, and Edwin Delin 2
because of their membership and activity in the union. After a
hearing on the issues presented in the complaint, the Trial Examiner
concluded in his Intermediate Report that the respondent had dom-
inated and interfered with the administration of the Workers' Coop-
erative and Benefit Association and had discharged Burkey, Tollick,
and Delin for union membership and activity. He recommended
that the respondent cease and desist from said domination and inter-
ference, withdraw all recognition from the Workers' Cooperative
and Benefit Association, offer Burkey, Tollick, and Delin reinstate-
ment to their former positions with back pay, and post notices in
conspicuous places in its plant stating that it would comply with
these and other recommendations contained in the Intermediate
Report. From the issuance of this Intermediate Report on July 2,
1936, until the Act was declared constitutional by the Supreme Court
of the United States on April 12, 1937, this case remained dormant.
Very shortly thereafter, the respondent disestablished the Workers'
Cooperative and Benefit Association and posted notices in its plant
to that effect. It also effected a settlement with Burkey, Tollick, and
Delin, discussed more fully below, whereby they were offered rein-
statement with back pay.
B. Interference, restraint, and coercion; the Independent
The Independent came into being several weeks after the valida-
tion of the Act. It was conceived by a group of five of the respondent's
employees s on May 10, 1937.4 This group began the distribution of
cards on the following day pledging the persons who signed to sup-
port the Independent when formed. The cards were circulated mainly
during the lunch hour of the employees and after work. Since most
of the employees had their lunch in the plant, the solicitation of signa-
tures took place mainly on the premises of the factory.°
2 Sometimes referred to as Dillon.
S These employees were Leonard Harder, Robert Wilder, Leo Stortz, Arthur Piehl, and
Mitchell Jagielko.
4 Frank Barrille , chairman of the Workers' Cooperative and Benefit Association at the
time of its demise, made the first attempt to organize another inside union. Towards the
latter part of April 1937, he, together with Leonard Harder, Keith McKnight, and other
officers and representatives of the Workers' Cooperative and Benefit Association ; conferred
with one Henry Tufo, who later became the attorney for the Independent, about the
formation of an inside union. Tufo advised them to hold a mass meeting of the employees
to ascertain their attitude towards the organization of an independent union. A meeting
was arranged for May 5, 1937, in a ball hired and paid for by McKnight. About 50
employees attended this meeting including Rudolph Burkey and John Tollick , secretary
and president , respectively , of the N. L. W. A. Because of the presence of these represen-
tatives of the N. L. W. A., McKnight refused to proceed with the meeting , which ended
without the accomplishment of its purpose.
In May 1937, before the commencement of solicitation by the Independent and the
N. L. W. A. for members among the employees , the respondent instructed its supervisory
1
I
GUTMANN & COMPANY -69
On May 13, 1937, 2 days after the Independent had begun the cir-
culation of its pledge cards, the respondent sent to its employees a
four-page printed letter allegedly designed to clarify the "confusion
existing in minds of many workers as to their rights under" the Act.
The real purpose of the Act, this letter states, is to guarantee employees
the right to decide for themselves whether to join or not to join any
labor organization. It emphasizes in capital letters and dark print
that "NONE REQUIRED TO JOIN ANY ORGANIZATION" and
explains that the Act does not require a closed shop or a union agree-
ment. Under a section headed "COLLECTIVE BARGAINING," the
letter asserts that "Hand in hand with the right of employees to or-
ganize into groups of their own choosing, goes the right of any
group of employees to form any labor organization entirely their
own ..."
On the last page of this letter, the respondent has listed what it calls
"OUR RECORD FOR 47 YEARS." The first and second sections
of this page discuss the steady employment and the high wages which
the respondent has provided for its employees in the past. The third
section speaks of the harmony and confidence which has prevailed
among its employees, emphasizing that "Workers have not found it
necessary to strike to get a fair and square deal." The fourth section
is headed "WILL YOU GAMBLE ON UNEMPLOYMENT AND
STRIKES?" and states that there are over 9,000,000 persons who are
unemployed and that 5,000,000 men have lost employment as a result
of strikes during the past 4 years. The next section. is entitled
"AGITATORS" and avers that "There is no record that any agitator
can run a factory, get orders to fill, provide a single week's work, fur-
nish a single steady job or a family a full dinner pail-we have done
this steadily for over 47 years." The last paragraph asks for the
cooperation of the employees in improving working conditions and
relations with the management.
After several days of solicitation of employees, the organizers of
the Independent, upon the advice of Frank Barrille, engaged the
services of Henry Tufo, an attorney, and with his assistance, applied
for and obtained a charter for the Independent from the State of
Illinois on June 1, 1937. On June 5, 1937, Leonard Harder, whom
the organizing committee had selected as president of the Inde-
employees to refrain from any form of interference or discrimination . This edict appears
to have been obeyed during the months that followed . Counsel for the Board and the
respondent concluded a stipulation towards the latter part of the hearing which provided
that the court reporter should select 15 employees of the respondent from the employees
who had gathered in the hearing room , that the number of members of the Independent
among these 15 should bear the same relation to non -members as in the plant , and that
the testimony of these 15 witnesses should be considered , in proportion to the testimony
which they should give , as the testimony of all the employees of the respondent. The
testimony of these witnesses indicated, inter alia , that no foreman or supervisory em-
ployees, had ever advised, urged , or warned any of them to join the Independent.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pendent, advised the respondent by letter that the Independent had
been granted its charter and that it was the organization empowered
by law to bargain with the respondent concerning wages and working
conditions. The Independent did not ask for recognition at this
time. Although it had then secured pledge cards signed by a ma-
jority of the employees promising to support the Independent when
it was formed, it had not enrolled any of the employees as members.
To substantiate the claim that it was the organization empowered
by law to bargain with the respondent, the Independent began the
circulation of membership cards on June 10, 1937. Printed on these
cards, which employees who joined the Independent signed, was an
authorization for the respondent to make a check-off of 40 cents
each month e
During the months of May and June 1937, the efforts of the
Independent to recruit members from among the employees of the
respondent were paralleled by the similar activities of the N. L. W. A.
The existence of this competition between the two unions was known
to the respondent. In fact, Fred Kasman, assistant superintendent
of the respondent, informed Rudolph Burkey, secretary of the N. L.
W. A., that he would not tolerate any organizational activity by the
N. L. W. A. in the plant. He made this statement during one of
several meetings with Burkey. Concerning the nature of a con-
versation with Burkey pertaining to the competition between the two
unions, Kasman testified as follows :
Well, Burkey spoke up and he says, "We [N. L. W. A.] have
got a majority." He repeated it again, and he says, "We have
a majority in the house." "Well," I says, "I don't know, the
rumors throughout the factory are that we have got a majority
of the men belonging, or forming this I. T. U. [Independent.]
I said, "It's funny if both of them can have a majority." And
then I think Burkey said, "Well, we'll see who has got it."
That's all.
The N. L. W. A. gave the respondent formal notice on June 25,
1937, that it had a majority of the employees as members. This
notice was contained in a letter from Burkey. and John Tollick,
president of the N. L. W. A., Which they presented to Leo Elkan,
vice president of the respondent. In this letter, they requested an
6 The cards also listed the purposes of the Independent , which were "To Promote Steady
Employment," "To Promote The Best and Fairest Wages, Hours and Working Conditions,"
"To Promote Harmony and Peace," and "To Prevent Strikes and Adjust Disputes ." These
purposes bear a noticeable resemblance in verbiage and sequence to the statements con-
tained on the last page of the letter sent to the employees by the respondent on May 13,
1937. The following are the first four paragraph headings on the last page of this
letter in the order In which they appear: "Steady Employment," "Wages," "Harmony and
Confidence ," "Will You Gamble On Unemployment and Strikes?"
I
I
GUTMANN & COMPANY 71
answer on or before July 8, 1937, stating whether or not the respond-
ent would comply with the Act. No answer to this letter was ever
made. On the following day, June 26, 1939, the Independent ad-
dressed a similar letter to the respondent, also claiming a majority
of the employees as members, and listing seven proposals for collec-
tive bargaining. Elkin replied to this letter on July 1, 1937,
advising the Independent that the respondent would consider the
proposals advanced if the Independent submitted proof that it
represented a majority of the employees. Copies of this letter to the
Independent were posted by the respondent throughout the plant.
The exchange of correspondence between the respondent and the
Independent culminated in a conference between their representa-
tives on or about July 7, 1937. To prove its claim of majority
representation, the Independent presented to the respondent photo-
static copies of its membership cards. These were checked against
the employees' social security cards. The inspection convinced the
respondent that the Independent had attained a majority status and
the parties proceeded forthwith to discuss the proposals made by
the Independent. As a result of this conference, employees who had
worked for the respondent for 1 year or more were granted 1-`veek's
vacation with pay each year. The respondent. estimated that this
concession cost it $11,000 amnially. From Elkan's description of this
bargaining conference, it appears that the parties did not discuss
the check-off authorized by the membership cards signed by the
employees in June 1937. Nevertheless, the respondent immediately
began deducting 40 cents each month from the wages of the mem-
bers of the Independent.
Approximately 1, week after the bargaining conference, the Inde-
pendent held its first membership meeting, at which time the members
were informed of. the results achieved by the organizing committee.
As noted above, the respondent replied to the request of the Inde-
pendent for recognition while disregarding a similar appeal from the
N. L. W. A. Leo Elkan, vice president of the respondent, who testi-
fied concerning the respondent's reasons for recognizing the Inde-
pendent, tendered no logical explanation for this discrimination
against the N. L. W. A. Portions of the cross-examination of Elkan by
counsel for the Board consisted of the following:
Q. (By Board counsel.) Now, the situation which existed, Mr.
Elkan, on July 1, 1937, when the company posted that notice was
that two labor organizations claimed to represent a majority of
the workers in your plant; is that correct?
* * * * *
283029-41-vol. 18-6
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. If you construe it as such, why, I suppose so.
Q. How did you construe it?
A. I suppose the same way.
Q. That there were two organizations claiming
A. I suppose so.
Q. (Continuing.) A majority?
A. I suppose so. I assume so.
Q. Yes. Yet you made no reply to the letter of June 25th from
the C. I. 0. [N. L. W. A.] ; is that correct?
A. Yes.
Q. Just look at me, Mr. Elkan, will you?
A. Yes.
Q. That is correct, is it?
A. Yes, sir.
Q. When you posted the notice of July 1st you made no refer-
ence to the claim of the C. I. 0.?
A. I believe you are correct.
Q. Why not?
A. Because at that time-let's see-the I. T. U. [Independent],
I think, had furnished evidence that they had a majority of the
members .representing-or -whom they represented.
Q. And at that time they had furnished you with that evidence,
you say?
A. I believe so, yes.
Q. Yet in the notice of July 1st you asked them to furnish it to
you?
A. I believe so.
Q. Now, one or the other is not correct.
A. You are correct, one or the other is not correct.
Q. They did not furnish it to you when you furnished the notice,
or prior to your furnishing the notice, otherwise you never asked
them to furnish that information to you. Was there any other
reason you did not answer the C. I. 0.? It was not because you
did not like Mr. Burkey, was it?
A. No, sir.
Q. That was not the reason?
A. No, sir.
Q. It was not because you did not like the C. I. 0.?
A. No, sir.
Q. Well, what was the reason?
A. I thought the record showed-I thought the record showed
that we had a majority-that is, that the I. T. U. had a majority
of the members.
GUTMANN & COMPANY 73
Q. When you posted the notice you did not know that, did you,
the notice of July 1st, but you asked them to give you the in-
formation.
A. I know there were demands made by the I. T. U. in the
latter part of June ; that I know.
Q. There were demands made by the C. I. O. in the latter part
of June , weren 't there?
A. Well, the demands made by the I. T. U. were definite de-
mands for the betterment of their workers.
Q. Mr. Elkan, what I am trying to find out, so as not to waste
any more time, is this :
A. I am trying to give it to you as I see it.
Q. I want to know why you did not answer the C. I. O. The
answer you gave is that certain specific demands were made upon
you in the latter part of June by the Independent Tanners Union.
A. Yes, sir.
Q. I am pointing out the fact that demands were made by the
C. I. O. in their letter of June 25th. Now, did you give any
weight to those demands when they asked you to recognize them
as the exclusive bargaining agency?
A. I know that the C. I. O. gave no evidence of their having a
majority. I know that.
Q. Did you ask for that?
A. I think not.
Q. You did ask the I. T. U., though ?
A. I think we asked the I. T. U.
Q. (Continuing) On July 1st, when you posted that notice?
A. I think so, yes.
Elkan testified that he did not like Rudolph Burkey, secretary of
the N. L. W. A. He denied that this was the reason for his failure
to answer the letter addressed to him by the N. L. W. A. He did
state, in response to a question concerning which union he would prefer
to deal with, that "I wouldn't say that I would personally like to
have it [N. L. W. A.] as well as any other organization, because if
the organization of the C. I. O. was represented by Mr. Burkey, whom
I did not believe, I would not care to have dealings with any organiza-
tion that had leadership of that kind."
Burkey gave testimony tending to indicate that the respondent pre-
ferred the Independent over the N. L. W. A. apart from character or
quality of their respective leaderships. He testified that Fred
Gasman, assistant superintendent of the respondent, had told him
that the respondent would not recognize the N. L. W. A. but that it
would be willing to recognize an independent union. This statement
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was denied by Kasman. It was admitted, however, that Kasman
and Burkey had met on frequent occasions in May and June 1937, and
had discussed matters pertaining to unions. From all the facts and
circumstances of this case, we are of the opinion that Kasman made
this statement to Burkey, and we so find.
Burkey and Kasman met on several occasions for the purpose of
computing the amount of back pay to which Burkey was entitled as
a result of his discharge in September 1935. We have mentioned
previously that the Trial Examiner in the proceeding against the
respondent antedating the validation of the Act had ordered the re-
spondent to reinstate Burkey, Tollick, and Delin with back pay.
Following the decisions by the Supreme Court of the United States
holding the Act constitutional, the respondent instituted negotiations
for the purpose of disposing of these three discharges. The confer-
ences between Burkey and Kasman were part of these negotiations.
.A settlement was effected on May 21, 1937, pursuant to which Burkey,
Tollick, and Delin were awarded back pay and offered reinstatement
to their former positions. Delin declined the offer of reinstatement
while Burkey and Tollick accepted and were immediately placed on
the respondent's pay roll.
Although Burkey and Tollick were reinstated as employees on
May 21,1937, they were not put back to work at once. Burkey remained
idle until July 17 while Tollick did not return to work until some-
time in July; the record does not indicate the precise date on which
this occurred. While these two employees were not called to work,
they received their regular wages each week. Eugene Greensfelder
testified that Burkey was not reinstated until July 17, 1937, because
"we didn't need him at that time." 7 While Greensfelder claimed
that the respondent could not have used Bur-key in the plant, he ad-
mitted that "maybe outside we might have used him." No reason
was advanced for the respondent's failure to put Tollick back to work
immediately after he had been reinstated.
C. Conclusions
We have described the letter sent by the respondent to its employees
on May 13, 1937, 2 days after the Independent began to organize,
7 Based upon this and other testimony by Greensfelder , the Trial Examiner concluded
that the respondent's "explanation of its failure to reinstate Burkey immediately was
that it hoped business would pick up, and that it would , therefore , not be necessary to
change the man who had taken Burkey's place ." In its exceptions to the Intermediate
Report, the respondent asserts that this finding "fails to take into account the additional
testimony in the record which disclosed that respondent was informed by its attorney
that it was necessary to give Burkey his exact same job and not any other ." Yet counsel
for the respondent asked Greensfelder if "the reason that you didn 't get him [Burkey]
back at that time was because Louis F. Jacobson [ the respondent 's attorney ] told you
you had to give him the same job . back again ?", and Greensfelder replied, "No, that
wasn't exactly the reason ; but we didn 't need him at the time."
GUTMANN & COMPANY 75
explaining to them their rights under the Act. In its discussion of
the provisions of the Act, this letter is biased and misleading. It
emphasizes certain negative aspects of the Act while omitting a state-
ment of its fundamental purposes. It stresses that employees do not
have to join labor organizations and that the employer is not required
to enter into a union agreement or consent to a closed shop. We dis-
cussed a similar document in the Mansfield Mills cases where we
stated, "The distribution by an employer of such leaflets among his
employees constitutes an attempt to circumvent the Act by interfer-
ing with his employees' right, unprejudiced by the employer, to make
up their own minds regarding self-organization." That language is
applicable to this letter.
The respondent recognized that this document discouraged union
membership for it quotes, in its exceptions, from the testimony of an
employee who was induced by it not to join any union.9 This wit-
ness testified that he did not join the Independent because "Gutmann
and Company told me they had to live up to the Wagner Labor Act
and I thought I could collect and bargain for myself." It is thus
apparent that the witness was impelled by the respondent's notice
to refrain from affirmative exercise of the rights granted by the Act.
The respondent would infer therefrom its own freedom from inter-
ference with the organization of the Independent.
We do not consider an anti-union document evidence that an em-
ployer has not interfered with or dominated the organization or
formation of a labor organization. On the contrary, it is recognized
that anti-union activity is an indicium of company domination."
Moreover, the letter was not anti-union in general. It was particu-
larly directed at that form of union organization represented by the
N. L. W. A. It contains the suggestion that employees can form a
labor organization "entirely their own." On the last page of the
letter is set forth a pointed and effective discouragement to member-
ship in an outside union. It stresses that in the past (when the em-
ployees were not represented by an outside union), they received
Matter of Mansfield Mills, Inc. and Textile Workers Organizing Committee, 3 N. L.
R. B. 901. See also, Matter of Nebel Knitting Company, Inc . and American Federation
of Hosiery Workers, 6 N. L. R. B . 284; Matter of Mock-Judson -Voehringer Company of
North Carolina, Incorporated and American Federation of Hosiery Workers, North Caro-
lina District, 8 N. L. R. B. 133; Matter of Pure Oil Company and International Union
Local 265, 8 N. L. R. B. 207 ; Matter of Western Felt Works, a Corporation and Textile
Workers Organizing Committee , Western Felt Local, 10 N. L. It. B. 407; Matter of The
Midland Steel Products Company and United Automobile Workers of America, 11 N. L.
R. B. 1214; Matter of Goshen Rubber and Manufacturing Company and United Rubber
Workers of America, Local #121,, 11 N. L. It. B. 1346.
e This witness was one of the 15 witnesses whose testimony was entitled to receive the
force of one fifteenth or 38 of the respondent 's employees according to stipulation. See
footnote 4, infra.
10 See Titan Metal Manufacturing Company and Titan Employees Protective Association,
et at.. V . National Labor Relations Board, 308 U. S. 615, enf'g Matter of Titan Metal
Manufacturing Company and Federal Labor Union No. 19951, 5 N. L. R. B. 577.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steady employment, good wages, and worked in harmony and confi-
dence with the employer. The alternative is suggested in the ques-
tion, "WILL YOU GAMBLE ON UNEMPLOYMENT AND
STRIKES?" Who will bring the employees unemployment and
strikes? No names are given but the answer is made . clear in the
following paragraph entitled "AGITATORS." In a letter purport-
ing to discuss the rights of employees "to join or not to join any
labor organization," these statements were a potent argument against
membership in the N. L. W. A.
It was inevitable that this document, distributed at a time when
the Independent was making its initial bid for members, should affect
the attitude of the employees toward the two unions competing for
their favor. By disparaging the N. L. W. A., the respondent en-
couraged and supported the organization of the Independent and
directed the organization. of its employees into the channels which
it preferred.-
As stated above, both labor organizations solicited members during
the lunch hour. The evidence does not establish that the respondent
discriminated against the N. L. W. A. in the exercise of this privilege.
It did, however, deprive the N. L. W. A. of the assistance in the
plant of two of its leaders, Burkey and Tollick, secretary and presi-
dent, respectively, during the heat of the campaign for members.
Burkey and Tollick were reinstated as employees on May 21, 1937,
but were not permitted to work in the plant until July 1937. The
record does not indicate on which day in July Tollick was put back to
work. It does reveal that Burkey did not return to work until July
17, several days after the Independent had been recognized by the
respondent.
Although the respondent alleges in its exceptions that Burkey was
not given immediate employment because it had been advised by
counsel that it was necessary to give him his identical job, Greens-
felder, vice president and superintendent, of the respondent, testified
that that "wasn't exactly the reason ." He claimed that the re-
spondent did not need Burkey at that time. He admitted, however,
that the respondent could have used Burkey's services . This fact,
n See Matter of Teaa 's Mining & Smelting Company and International Union of Mine,
Mill & Smelter Workers, Local No. l12, 13 N. L. it. B. 1163, wherein we said:
Success of the respondent's campaign against the Union entailed one of two results,
each destructive of employees' rights ; either that the organizational efforts of the
employees be crushed , or, as actually occurred , that such efforts be diverted into chan-
nels more acceptable to the respondent . Both consequences were reasonably within
the respondent 's contemplation when it resorted to unfair labor practices designed to
destroy the Union.
Cf. Hamilton-Brown Shoe Company, a corporation v. National Labor Relations Board and
United Shoe Workers of America, Local 125, 104 F. (2d) 49 ( C. C. A. 8 ) modifying and
enforcing as modified Matter of Hamilton -Brown Shoe Company, a corporation and Local
125 United Shoe Workers of America, affiliated with the Committee for Industrial Organiza-
tion, 9 N. L. it. B. 1073.
GUTMANN & COMPANY 77
coupled with the other facts of this case and the unlikelihood that
the respondent would pay the weekly wages of an employee without
obtaining any return, leads us to the conclusion that the respondent
kept Burkey and Tollick out of the plant in order to deprive the
N. L. W. A. of their assistance and thereby aid the Independent
in its campaign for members.
We have found above that Kasman informed Burkey that the
respondent would recognize the Independent but would not recog-
nize the N. L. W. A. This was confirmed by the character of the
respondent's negotiations with these two unions. Although it was
familiar with the existence of a contest for membership between
the Independent and the N. L. W.. A. and had been presented by both
unions with claims of a majority membership, the respondent chose
to deal only with the Independent. The N. L. W. A.'s letter, which
preceded the Independent's letter by 1 day, was completely ignored.
The Independent's letter was dignified by an answer which was
posted throughout the plant. By posting its answer, the respondent
gave notice to its employees that it was prepared to bargain with
the Independent and, by inference, that it would not bargain with
the N. L. W. A. Since the answer stated that the respondent would
"consider, discuss and attempt to arrive at a mutually satisfactory
understanding in connection with the demands presented" by the
Independent, it suggested to employees the possibility that they
might profit through the Independent, but not through any other
organization.
Elkan gave no plausible reason for his discrimination against
the N. L. W. A. Instead, his testimony reveals a persistent effort
to avoid an explanation. In its exceptions to . the Intermediate
Report, the respondent advances the following reasons for its treat-
ment of the two unions :
The uncontradicted testimony of Elkan discloses that Respond-
ent's position was that until demands were made for the better-
ment of Respondent's workers, Respondent's opinion was that
no answer was required of it and hence did not answer the letter
of June 5th of the ITU [Independent], or the letter of June 25th
of the CIO [N. L. W. A.], and that Respondent took no action
until definite demands for its workers were made on June 26th.
This contention, as noted above, is supported neither by Elkan's
"uncontradicted testimony" nor by the facts contained in the record.
Furthermore, the comparison which the respondent's argument would
draw between the Independent's letter of June 5, 1937, which the
respondent did not answer, and the N. L. W. A.'s demand for recog-
nition on June 25, 1937, is without merit. The Independent's letter
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not a request for recognition and did not call for an answer. It
merely notified the respondent that the Independent had a majority
of the employees as members. Since a majority had merely pledged
to join, the Independent thereafter began the circulation of mem-
bership cards among the employees. Not until June 26, 1937, did
the Independent assert, in its letter to the respondent, that it had
enrolled a majority of the respondent's employees as members.
In other respects, moreover, the respondent's contention is untenable
since it never gave the N. L. W. A. a chance to make proposals for
the betterment of the employees. In any event it was not the re-
spondent's duty to choose a representative for its employees in
accordance with the nature of the proposals advanced by the com-
peting unions. The respondent was required to bargain with that
union which represented a majority of the employees. With both
unions presenting conflicting claims of membership, the respondent
should have proceeded with extreme caution. Instead, it hastened
to acknowledge the request of the Independent, posted its answer
throughout the plant, and completely disregarded the N. L. W. A.
which, with the respondent's knowledge, had for 2 months engaged
the Independent in a vigorous struggle for membership. It is our
conclusion that the respondent has thereby aided and supported the
Independent.
The record, in our opinion, reveals a persistent campaign by the
respondent to assist the Independent and hinder the N. L. W. A.
Through its letter to the ' employees, the manner in which it nego-
tiated with the Independent, Kasman's statements to Burkey, and
the exclusion of Burkey and Tollick from the plant, the respondent
made clear to the. employees which union it wanted them to join.
With the positive aid and support granted to the Independent, it was
natural to expect that the employees would enlist under its banner
and refrain from affiliating with the N. L. W. A 12
12 In Matter of Wheeling Steel Corporation and The Amalgamated Association of Iron,
Steel and Tin Workers of North America, etc., 1 N. L. R. B. 699, 709, we said :
The power of an employer over the economic life of an employee is felt intensely
and directly . The employee is sensitive to each subtle expression of hostility
upon the part of one whose good will is so vital to him, whose power is so unlimited,
whose action is so beyond appeal.
And in National Labor Relations Board v. The Falk Corporation, 102 F. (2d) 383 (C. C. A.
7, 1939 ) enf'g Matter of The Falk Corporation and Amalgamated Association of Iron,
Steel and Tin Workers of North America, Lodge 1528, 6 N. L. R. B . 654, the Circuit Court
of Appeals for the Seventh Circuit said :
The position of the employer , where, as here , there is present genuine and sincere
respect and regard, carries such weight and influence that his words may be coercive
when they would not be so if the relation of master and servant did not exist.
See also Matter of Crawford Manufacturing Company and Textile Workers Organizing
Committee , 8 N. L. R. B. 1237, 1241.
GUTMANN & COMPANY 79
We find that the respondent has dominated and interfered with the
formation and administration of the Independent and has contributed
support to it, and that by such domination and interference and by
the activities described above, it has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed them
in Section 7 of the Act.
D. The alleged discrimination with respect to hire and tenure of
employment
The complaint alleged that the respondent discriminated against
Henry Hanson, Stephen Holland, Fred Lang, and Conrad Edelstein,
employees of the respondent, because of their membership and activity
in the union. The Trial Examiner concluded in his Intermediate
Report that the respondent had not discriminated against these em-
ployees and recommended that the allegations contained in the con-
plaint in their behalf be dismissed. The N. L. W. A. has not filed
exceptions to these recommendations of the Trial Examiner. Upon
an examination of the record we find that it does not support the
allegations of the complaint that the above-named employees were
discriminated against because of their union membership and ac-
tivity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III B and C above, occurring in connection with operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we will order that it cease and desist from such
practices.
Since we have found that the respondent dominated and interfered
with the formation and administration of the Independent and con-
tributed support thereto, we shall order the respondent to cease and
desist therefrom and we shall also order the respondent to disestab-
lish the Independent as the respresentative of its employees for the
purpose of dealing with the. respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record discloses that the respondent has made a monthly check-
off of dues from the wages of the Independent on the basis of author-
izations secured from, employees. To restore the status quo existing
prior to the respondent's unfair labor practices, we will order that the
respondent reimburse its employees for amounts deducted from their
wages as dues for the Independent.13
As we have found that the respondent has not discriminated against
Henry Hanson, Stephen Holland, Fred Lang, and Conrad Edelstein
in regard to hire or tenure of employment or other conditions of em-
ployment, we shall dismiss the complaint in so far as it alleges the
contrary.
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. National Leather Workers Association, Local 43, and Inde-
pendent Tanners Union are labor organizations, within the meaning of
Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of the Independent, and by contributing support thereto, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed by 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.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not discriminated against Henry Hanson,
Stephen Holland, Fred Lang, or Conrad Edelstein in regard to hire or
tenure of employment or terms or conditions of employment, 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,
is See Matter of Heller Brothers Company of Newcomerstown and International Brother-
hood of Blacksmiths, Drop Forgers and Helpers, 7 N. L. R. B. 646; Matter of The Western
Union Telegraph Company, a corporation and American Communications Association, 17
N. L. R. B. 34.
GUTMANN & COMPANY 81
Gutmann and Company, Chicago, Illinois, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist :
(a) From dominating or interfering with the administration of
Independent Tanners Union or with the formation or administration
of any other labor organization of its employees, and from contributing
support to said organization or to any other labor organization of its
employees;
(b) From recognizing Independent Tanners Union as representative
of any of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment;
(c) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their right 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act;
(a) Withdraw all recognition from Independent Tanners Union as
a representative of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment,
and completely disestablish said Independent as such representative;
(b) Reimburse its employees for dues which it has checked off from
their wages on behalf of Independent Tanners Union;
(c) Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of sixty (60) consecutive
days, stating: (1) that the respondent will cease and desist as aforesaid;
(2) that the respondent withdraws and will refrain from all recogni-
tion of the aforesaid Independent as a representative of any of its
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, and that said Independent is dis-
established as such representative;
(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.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent has engaged in unfair labor practices within the
meaning of Section 8 (3) of the Act with respect to Henry Hanson,
Stephen Holland, Fred Lang, and Conrad Edelstein, be, and it hereby
is, dismissed.