Leatherwear Co., Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1943

48 N.L.R.B. 1320 (N.L.R.B. 1943)

In the Matter of LEATHERWEAR COMPANY, INC. and FuR DRESSERS &
DYERS UNION , LocAL 135, AFFILIATED WITH THE INTERNATIONAL Fult
AND LEATHER WORKERS UNION OF U. S. AND CANADA , C. I. O. and
INTERNATIONAL LADIES' HANDBAG, POCKETBOOK & NOVELTY WORKERS
UNION, A. F. OF L.-PARTY TO THE CONTRACT
Case No. C-0451.=Decided April 17,1943
Jurisdiction : leather goods manufacturing industry.
. Unfair Labor Practices
Interference, Restraint, and Coercion: interrogation of- employees ; anti-union
,-statements; sponsoring and assistance of rival organization ; execution of a
closed-shop contract with assisted labor organization.
Discrimination: charges of, sustained as to six employees.
Remedial Orders : reinstatement and back pay awarded; employer ordered to
withhold recognition from assisted labor organization until certified, and re-
frain from giving effect to its contract with assisted labor organization.
DECISION
AND
ORDER
On December 8, 1942, the Trial Examiner filed his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
affecting commerce, and recommending that the respondent cease and
desist therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act, as set forth in the copy of the Inter-
mediate Report attached hereto. The respondent filed no exceptions
to the Intermediate Report.' None of the parties requested oral argu-
ment before the Board. The Board has reviewed the rulings of the
,Trial Examiner,at the hearing and finds that no prejudicial errors
were committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the Union's exceptions and brief,
and the entire record in the case, and hereby adopts the findings,-con-
clusions, and recommendations of the Trial Examiner,, with the-
exceptions and qualifications noted below : .
(1) In his discussion of the discriminatory discharges, the Trial
Examiner finds that on December 30, 1941, Jacob Wiseman, the re-
I The Union filed exceptions to the recommendation of the Trial Examiner with regard
to the method of computing-back pay
48 N. L. R. B, No. 167.
1320
LEATHERWEAR COMPANY, INC. '1321
spondent's president, interrogated, the discharged employees concern-
ing their union and concerted activities and-made certain anti-union
statements to them. We agree and so find. We also find that by'these
statements and interrogations of President Wiseman the respondent
interfered with,-restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
(2) The Trial Examiner found that the respondent violated the
Act by executing a closed-shop contract with the International al-
though it made no showing of representation at that time, and by
subsequently assisting the International in obtaining members. We
agree and so find. We find further that the closed-shop contract be-
tween the respondent and the International was invalid because it did
not fall within the protection of the proviso to Section 8 (3) of the
Act.
(3) The Trial Examiner made no recommendation with respect to
the invalid closed-shop contract between the International and the,
respondent. To effectuate the policies of the Act, we shall order the
respondent to cease and desist from giving effect to its contract, dated
January 29, 1942, with the International, as well as to any extension,
renewal, modification, or supplement thereof, and any superseding
contract which may now be in force, and to refrain from recognizing
the International as the collective bargaining representative of any
of the respondent's employees unless and until the International is
certified by the Board as the exclusive representative of the respond-
ent's employees. Nothing herein, however, shall be deemed to require
.the respondent to vary those wage, hour; seniority, and other such
.substantial features of its relation with the employees themselves,
if any, which the respondent established in performance of the con-
tract, dated January 29, 1942, as extended, renewed, modified, supple-
mented, or superseded.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Leatherwear Company, Inc.,
Middletown, New York, and its officers, agents, successors and assigns
shall :
1. Cease and desist from : S
(a) Discouraging membership in Fur Dressers & Dyers Union,,
Local 135, affiliated with the International Fur and Leather Workers
Union of U. S. and Canada, C. I. 0., or any other labor organization,
by discriminating in regard to the hire and tenure of employment or
any terms or conditions_of employment of its employees,
(b) Sponsoring, assisting, or supporting International Ladies'
I-Iandbag, Pocketbook & Novelty Workers Union, A. F. of L.;
1322 DECISIONS OF NATIONAL LABOiR RELATIONS BOARD
(c) Giving effect to its contract, dated January 29, 1942, with
International Ladies' Handbag, Pocketbook & Novelty Workers Union,
A. F. of L.,.and to any, extension, renewal, modification, or supple-
ment thereof, and any superseding contract which may now be in
force;
(d) In any other manner interfering. with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations to bargain collectively through rep-
resentatives of their' own choosing, and to engage in concerted activi-
ties for the purposes of collective bargaining or, other mutual aid or
protection as guaranteed in Section 7 of the National Labor. Relations
Act. V
2. Take the following affirmative action, which the Board finds will
'effectuate the policies of the Act :
(a) Offer to Jerry Juliano, Thomas Palumbo, Rose Perry, Palma
Candito, Erna Elliott, and Emma Stubblebine, immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges.'
and if necessary, dismiss any employees who,may have been hired to fill
the positions previously occupied by said employees;
(b) Make whole Jerry Juliano, Thomas Palumbo, Rose Perry, Pal-
ma Candito, Erna Elliott, and Emma Stubblebine for any loss of pay
they may have suffered- by reason of the respondent's discrimination
against them in regard to their hire and tenure of employment, by
payment to each of them of a sum of money equal to the amount he or
she normally would have earned as wages from. the respective dates
of such discrimination against them to the date of the respondent's
offer of reinstatement, less his or her net earnings during such period;
(c) Withhold recognition from International Ladies' Handbag,
Pocketbook & Novelty Workers Union, A. F. of L., as the represents-
tive of its employees for the purposes of negotiating with respect to
grievances, labor disputes, rates of pay, hours of employment, or other
conditions of employment, unless and until said labor organization is
certified as the exclusive representative of the respondent's employees
by the National Labor Relations Board;
(d) Post immediately in conspicuous places in its plant at Middle-
town, New York, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stating
(1) that the respondent will not engage in the conduct from which it
is ordered to cease and desist in paragraphs 1 (a), (b), (c); and (d)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3)
that the respondent's employees are free to become or remain members
of Fur Dressers & Dyers Union, Local 135, affiliated with the Interna-
tional Fur and Leather Workers Union of U. S. and Canada, C. I.,O.,
LEATHERWEAR COMPANY, INC. 1323
or any, other labor organization, and that the respondent will not
discriminate against any employees because of membership or activity
in any such organization;'
(e) Notify the Regional Director for the Second Region in writing
within ten (10) days from the receipt of this Order what steps the
respondent has taken'to comply herewith.
INTERMEDIATE REPORT
Mr. John J. Cuneo, for the Board
Mr. Myle J. Holley, of New York City, for the respondent
Mr. Leo Schemer, of Walden, N Y., for the Union.
STATEMENT OF THE CASE
Upon a third amended and supplemental charge duly filed on April 25, 1942,
by Fur Dressers & Dyers Union , Local 135, affiliated with International Fur and
Leather Workers Union of U S. and Canada , affiliated with I the Congress of
Industrial Organizations , herein called the Union , the National Labor Relations
Board, herein called the Board, by its Regional Director for the Second Region
(New York City ), issued its complaint , dated August 20, 1942, against Leatherwear
Company, Inc., Middletown , New York, 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) and ( 3) and Section
2 (6) and ( 7) of the National Labor Relations Act, 49 Stat . 449, herein called
the, Act. Copies of the complaint and notice of hearing thereon were duly served
upon the respondent , the Union , and International Ladies' Handbag , Pocketbook
& Novelty Workers Union , affiliated with the American Federation of Labor, herein
called the International.
With respect to the unfair labor. practices , the complaint , as amended at the
hearink, alleged in substance : ( 1) that from on or about December 28, 1941, to
the date of the complaint , the respondent interrogated its employees concerning
their union affiliation '; urged, persuaded , threatened , and warned its employees
to refrain from assisting , becoming members , or remaining members of the Union ;
urged, persuaded , threatened and warned its employees to assist, ,, become or
remain members of the International ; recruited members for the International
and assisted it in securing members among its employees ; and permitted the
use of its property on behalf of the International ; ( 2) that in January 1942,
the respondent entered into a collective bargaining contract with the International
at a time when the International was not the freely chosen representative of a
majority of the respondent 's employees in an appropriate unit; (3) that on
December 29 and 30, 1941 , and January 5, 1942, the respondent discharged seven
named employees, and since the dates of their respective discharges'has refused to
reinstate the seven named employees because of their membership in or activities
on behalf of the Union , or because they had engaged in other concerted activities
for the purpose of collective bargaining or other mutual aid and protection ; and
(4) that by the above-stated acts the respondent discriminated with respect to
the hire and tenure of employment and interfered with , restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
On or about August 25 , 1942, the International filed its answer , denying that the
respondent, had assisted it or recruited members for it. The answer admits thatr
the International and the respondent executed a collective bargaining contract, but
1324 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD;
avers that the contract, by mutual agreement of the International and the respond-
ent, was subsequently disaffirmed.
On November 19, 1942, the respondent filed its answer, denying that it has
engaged in any of the alleged unfair labor practices. The respondent, in its
answer, avers that the contract between it and the International was mutually dis-
affirmed on or about April 14, 1942. The answer also avers that the employees
alleged to have been discriminatorily discharged were discharged because the
respondent had contracted for the production of certain products for the United
States Army and believed that the discharge of the named employees was in ac-
cordance with information and instructions which the respondent had received
from a government representative at the time, or shortly after, it received the
government contract. The answer contains no averments with respect to the
jurisdictional allegations of the complaint. _
Pursuant to notice, a hearing was held at Middletown, New York, from Novem-
her 19 to 21, 1942, before the undersigned, the Trial Examiner duly designated
by the Acting Chief Trial Examiner. The Board, the respondent, and the Union
were represented by counsel and participated in the hearing: The International
did not participate. Full Opportunity to be heard, to examine and'cross-examine
witnesses, and to introduce evidence bearing upon the issues was afforded all
parties. At the beginning of the hearing, counsel for the Board moved to amend
paragraph 6 of the complaint to allege that the discharge of the employees named
in the complaint, as well as the refusal to reinstate them, was for the reason
that they joined or assisted the Union and engaged in other concerted activity
for the purpose of collective bargaining or other mutual aid and protection.
The respondent made no objection to this motion but moved to amend its answer
to deny the amended allegation. These motions were granted Counsel for
the Board also moved to amend the complaint to correct the date of the discharge
of William J Moore. This motion was granted without objection. At the close
of the Board's case the respondent moved to strike all the evidence relating to
the contract between the respondent and the International. This motion was
denied 3 At the conclusion of the hearing, counsel for the Board moved to dismiss
without prejudice the allegation of the complaint that the respondent had dis-
criminatorily discharged William J. Moore. This motion, which was grounded
on the impossibility of adducing evidence in support of the allegation because
of Moore's induction into the armed forces, was granted without objection. The
undersigned.withont objection granted the Board's motion, made at the close
of the hearing, to conform the pleadings to the proof. At the conclusion of the
hearing, the respondent moved to dismiss the complaint for lack of sufficient
evidence to support the allegations of the complaint. This motion was denied.
At the conclusion of all the evidence counsel for the Board, the respondent, and
the Union presented oral argument on the record before the undersigned 2 Al-
though advised that they might do so, all parties waived the right to file briefs
with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Leatherwear Company; Inc , the respondent herein, is a New York corporation,
having its principal office and place of business at Middletown, New York, where
i The respondent's motion to strike and the undersigned 's, ruling thereon are more fully
discussed at page 15, infra.
2 Pages 392-408, inclusive ,, of the transcript of testimony.
LEATHERWEAR COMPANY, INC. 1325
it-normally-is engaged in the manufacture, sale, and distribution of novelty leather
goods, including belts, eye glass cases, and shoulder straps The respondent pres-
ently is engaged in,the manufacture of gun slings and other small leather items
for the United States Army The principal raw materials used by the respondent
are leather, imitation leather, hardware, and trimmings. During the-6-months'
period immediately preceding the hearing herein, a typical period, approximately
$10,000 worth of such 'raw materials, constituting approximately 50 percent of
the total amount of raw materials used by the respondent, were shipped to its
plant in Middletown, New York, from points outside the State of New York.
During the same period, the respondent shipped to points outside the State of
New York finished products valued at approximately $5,000, constituting approxi-
mately 50 percent of the total amount of, its finished products The respondent
concedes that it is engaged in interstate commerce within the meaning of the Act.'
II THE ORGANIZATIONS INVOLVED
Fur Dressers & Dyers Union, Local 135, affiliated with International Fur and
Leather Workers Union of U. S and Canada, is a labor of ganization, affiliated
with the Congress of Industrial Organizations, admitting to membership, among
others, employees of the respondent.
International Ladies' Handbag, Pocketbook & Novelty Workers Union, is a
labor organization, affiliated with the'American Federation of Labor, admitting
to membership, among others, employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharges °
1. Chronology of events
About the middle of December 1941, several of the respondent's employees
began, discussing among themselves the feasibility of organizing a union in the
plant. Shortly after this discussion commenced, Paul Fachelli, the employee
most actively interested in the idea, was discharged,5 and attempts to orgnize a
union momentarily subsided. On Sunday, December 28, Jerry Juliano, one'of the
employees alleged to have been thereafter discriminatorily discharged, went to
Fachelli's home and obtained from him information as to how he should proceed
with the organization of a union in the plant. During Sunday e^eumg, Juliano
went to the homes of several employees and asked the employees if they desired
"to join the union." The first two employees solicited by Juliano refused He
then went to the home of Rose Perry and Thomas Palumbo, two other employees
alleged to have been discriminatorily discharged, and asked them if they were
interested in joining a union. They answered affirmatively, and Palumbo
obtained a piece of notebook paper, and wrote thereon, "I hereby agree to join the
union. Juliano, Perry, and Palumbo then signed their names to the paper.
3 The figures with reference to the total value of raw materials and finished products
and the portion thereof that is shipped in interstate commerce are found in a stipulation
between the respondent and counsel for the Board. Apparently, there is an inadvertent
error in the figures with respect to the total value of raw materials and finished products.
In view of all the evidence respecting jurisdiction , including the resppndent ' s stipulation
that it is engaged in interstate commerce within the meaning of the Act, the undersigned
finds that the apparent inaccuracies of the stipulation are immaterial.
4 Unless otheiwise noted, the findings herein rest upon undisputed and credible evidence
adduced by the Board. The respondent, although present and represented by counsel
throughout the hearing, called no witnesses and offered no evidence.
6 It is not contended that Fachelli was discriminatorily discharged
1326 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Juliano obtained a similar piece of notebook paper from Perry and wrote the same
heading on it. The following morning, before going to work, Juliano asked
several other employees,if they were interested in becoming members of a union.,
Palma Candito, another employee alleged to have been discriminatorily discharged,
then signed the paper which Juliano, Perry, and Palumbo had signed. Upon
arriving at the plant a few minutes before working time Juliano proceeded to
ask other employees as they came to work if they were interested in joining a
union. Erna Elliott, alleged to have been discriminated against, signed this
paper. Emma Stubblebine, alleged to have been discriminated against, would
not take time to sign the paper, but she gave Juliano her full name and address
and authorized him to write her name on the paper. Juliano placed Stubblebine's
name on the paper which Elliott had' signed. During the morning, Juliano asked
one other employee to sign, but he 'refused.
Throughout the morning of December 29, Jacob Wiseman, the respondent's
president who also worked in the plant, watched Juliano "through the corner of
his eye." 6 At about noon, Coulter, the respondent's bookkeeper at that time,
approached Juliano where lie was working, gave Juliano his accrued wages and
the working permits which Juliano had submitted to the respondent when he be-
gan working, and informed Juliano that the respondent was getting a government
contract which required employees to be at least 18 years of age and that since
Juliano was only 17 years old, he was being dismissed Juliano asked Jacob
Wiseman if it was all right for him to leave the plant immediately and, upon
Wiseman's affirmative answer, Juliano left the plant.
On the morning of December 30, shortly after the employees had, commenced
working, the time cards were taken from the rack near the time clock where
they were usually kept. Throughout the course of the morning Norbert Wiseman,"
separately notified the employees to go to Jacob Wiseman' s office. Almost all
of the employees were thus called to Jacob Wiseman' s office, where Wiseman,
holding a number of time cards in his hand, interviewed each employee
separately. ,
Upon all the evidence, the undersigned finds that Wiseman, during his interview
with most of the employees who testified concerning the matter, spoke of the
government contract he had obtained and the necessity for accurate and speedy
production in order to satisfy the terms of the contract. His additional remarks
varied with different employees. He told Charles Crist, an employee at that
time, that he was beginning production for the, government, and that, he "didn't
want any trouble in the plant." Wiseman asked EdgaraCrist, an employee at
that time, if he knew anything about the C. I. O. and said that he "didn't want
anybody to join a union ." He told Palumbo that he had to be free of "interfer-
ence from anyone else, either inside or outside," and asked Palumbo if he had
been asked to sign a union paper. When Palumbo answered that Juliano had
asked him to sign a paper,but that he had refused to sign, Wiseman told Palumbo
that Norbert Wiseman had told him that he had seen Juliano pass the paper to
another employee and that he had seen Palumbo's signature on it. Wiseman then
told Palumbo that "he had instructions from some office in New York" to lay off
e This finding is based upon Juliano's undisputed and credible testimony. Wiseman was
present at the hearing when this testimony was given and failed to take the witness stand
to deny the accusation. Wiseman was called as a witness for the Board and testified
respecting other matters.
' Noibert Wiseman, Jacob' s son , admittedly assists in the operation of the respondent's
business , acts in,a supervisory capacity and, when Jacob Wiseman is absent from the plant,
sees "that the work is done properly." • The undeisigned finds that Norbert Wiseman is
clearly identified with the management, and that the respondent is answerable for his
statements and conduct.
LEATHERWEAR COMPANY, INC. 1327
Palumbo. Wiseman added that Palumbo could go back to work if he could
prove that he did not•sign the paper in question.
Rose Perry was called to Wiseman's office immediately after Palumbo. Upon
entering the office, Perry asked why Palumbo had been discharged, and Wiseman's
only answer was, "Lower your voice." Wiseman then asked her if she had
been asked to sign "a union paper." When Perry answered that she had not,
both Jacob and Norbert Wiseman, who 'were present during the interview, said
that the latter had seen Perry's name on a union paper. Jacob Wiseman said
that "he did not want a union in there because he wanted to be boss in that
factory, and he didn't want anybody to'tell him what to do." He then said he
"didn't need" Perry "for a. while," and gave her her time card. Norman Wise-
man told Perry that the respondent would probably call her back ,to work after
a short time. Wiseman asked Candito if she had' signed a paper. When she
stated that she had, Wiseman asked her who else had signed it and she refused
to answer. Then Wiseman gave her her time card and said he would have to
let her go until he investigated the matter further.
Wiseman asked Elliott if she had been solicited to sign a paper and told her
that he had seen her name "on a piece of paper." He gave Elliott her timecard,
and said he would have to lay her bff until he could inquire further into the mat-
ter. Wiseman told Stubblebine that he "did not want any trouble in the plant"
and said that he had received word "that there was a piece of paper" with her
name on it. She replied that she had not signed it., Wiseman stated that there
were six names on the paper and hers was one of them .8 Norbert Wiseman, who
was present during the interview, said h0 had learned from'some New York City
office, which he identified by a particular address, that Stubblebine had signed the
paper. Jacob Wiseman told Stubblebine that he would have to lay her off until
he investigated the matter further. In response to Stubblebine's inquiry as to
the reason for her lay-off, Wiseman said that he "didn't want any trouble in the
shop," and_ added, "We have guards on the outside, but do you want to have
guards on the inside watching to see if somebody left a bomb go off in the shop?"
When Stubblebine protested her lay-off inasmuch as she had not actually signed
the paper and told the Wisemans that she was going to investigate the matter,
Norbert Wiseman told her not to investigate because they had received the infor-
mation concerning those who had signed the paper from a local source and not
from a New York office!
As Palumbo, Perry, Candito, Elliott, and Stubblebine left Wiseman's office they
punched their time cards and left the plant. None of the other employees' who
were interviewed did so. Charles Crist testified, without contradiction, that dur-
ing the morning he noticed these employees punching their time cards and leaving
8 It is significant that, according to the credible and undisputed evidence, Wiseman specif-
ically questioned all of the above -named dischargees concerning the signing of a paper but,
so far as the record shows , addressed no such questions to the remaining two witnesses
who were not discharged but who testified concerning their interview with Wiseman on
December 30 .1 1
8 The findings as to what occurred during Wiseman 's interview of the discharged em-
ployees rests upon their undisputed testimony. Counsel for the respondent argued at the
hearing that these employees are not worthy of belief because they untruthfully told Wise-
man that they had not signed the paper circulated by Juliano There is no merit to the
contention. Employees often have cogent reasons for concealing their union activities.
The record demonstrates that such was the case here. In any event, an emplovee's un-
truthful denial of union activity upon an employer's inquiry is not sufficient to impugn that
employee's testimony given under oath. If the respondent actually believed the testimony
of these employees to be false, it doubtless, would have availed itself of the opportunity
to adduce contrary evidence. The undersigned credits the testimony of the discharged
,employees and finds that Wiseman made the above statements as related by them.
I
1
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,the plant ; that he asked Clarence Hulse 1° why they were leaving; and that Hulse
replied that "they were discharged on account of associating with the C. I. 0."
Crist, at the time of the hearing, had voluntarily quit his employment with the
respondent and had no apparent interest in the outcome of this proceeding. He
appeared at the hearing under subpoena and was not called as a witness friendly
,to the Board ' s case. He impressed the undersigned as a credible witness. Hulse,
still employed by the respondent, was not called to deny making the statement,
and the respondent offered no explanation of its failure to call him. The under-
signed credits Crist's testimony, and finds that Hulse made the statement attrib-
uted to him by Grist.
Counsel for the Board contends that Hulse is a supervisory employee for whose
statements and conduct the respondent is answerable. Jacob Wiseman testified
that Hulse has worked for the respondent 16 or 18 years ; that he carries the
keys to the plant and opens the plant each morning; that he is the only person
other than the Wisemans who has keys to the plant; that he adjusts the time
card punching device on the time clock each day ; that he shows the employees
how to do the work in the polishing department; and that he [Wiseman] has
told the employees to obey Hulse's instruction when he [Wiseman] is absent
from the plant. Other credible witnesses testified that Hulse sometimes dis-
tributes the work and tells the employees what to do ; .that he shows employees
how to d6-work in departments other than the polishing department; and that
he notifies the employees to begin work when the starting bell fails ,.to ring.
Palumbo testified that when he was first employed by the respondent, Jacob
Wiseman- told him that the foreman would put him to work and that when he
reported for work Hulse announced that he was the foreman and told Palumbo
what-to do. Perry testified that she once heard Jacob Wiseman refer to Hulse'
as a foreman " The undersigned finds that Hulse is an old and trusted employee ;
that he frequentlylacts in a supervisory capacity, especially when Jacob Wiseman
is absent from the plant ; • that the respondent has held- Hulse out as a foreman ;
that, the, employees reasonably identify him with the management; and that the
respondent is answerable for, his statements and conduct."
2. Conclusions respecting the discriminatory discharges
Jeri J Juliano, as stated above, initiated the movement to organize a union
In the respondent's plant. All of his organizational activity occurred within 24
hours of his discharge. A portion of it was engaged in at the plant just a few
hours prior to his discharge. During the morning preceding his discharge, Jacob
Wiseman had Juliano under close scrutiny. The rapid sequence of events, includ-
ing the discharge on the following day of all the employees who signed Juliano's
-union pledge statement, would indicate; in the absence of some convincing explana-
tion to the contrary, that the respondent was aware of Juliano's attempts to or-
ganize a union in the plant and discharged him for that reason
Except for the vague and general statement in its answer that the employees
involved herein were discharged in the belief that such action,was required by the
terms of the respondent's government contract, and instructions it had received
pertinent thereto, the respondent made no attempt to explain its discharge of
10 Sometimes referred to in the record as Pat Hulse
11 Jacob Wiseman denied that he had ever used the word "foreman" when referring to
Hulse From his observation of the witnesses , and upon all the evidence concerning
fiulse's duties , the undersigned credits the testimony - of Palumbo and Perry on this point
12 Cf International Association of Machinists v. N. L R. B., 311 U. S 72, 79-SO; 17. J.
Heinz Co. v N. L. R. B., 311 U. S. 514, 518-20.
LEATIiERWE'AR COMPANY, INC. 1329
Juliano. No evidence was offered in support of the assertion' contained in the
answer. It is true that Juliano was told that he was being discharged because
he was not old -enough to work on production tinder the terms of the government
contract. But the next day; according to,Palumbo's undisputed and credible
testimony, Jacob Wiseman voluntarily told Palumbo, that Juliano was not dis-
charged for starting a union but because he had been sitting down on the job
several times" Neither Wiseman nor any other representative of the respondent
however, testified that either of these asserted reasons was the actual cause of
Juliano's discharge. The explanation given to Juliano at the time of the discharge
is'not persuasive in view of the fact that Juliano was not discharged earlier in
the year when, according to Jacob Wiseman's testimony, the respondent was
producing, goods under.another government, contract The respondent, moreover,
did not commence production under the second government contract until January
6, 1942. The work week and pay period in the respondent's plant run from
Monday through Friday. The respondent did not endeavor to explain why
Juliano was discharged a week before production for the government com-
menced. Nor is there any apparent reason, except Juliano's union activity, for
the discharge to have been made at noon on Monday intsead of at the close of
a normal work week and pay period
The precipitate discharge exactly timed, as it was, to Juliano's union activity,
and the respondent's failure satisfactorily to explain its action permits but one
conclusion. The undersigned is convinced, and finds, that sometime prior to
noon on December 29, 'Jacob Wiseman learned of Juliano's attempts, to, organize
a union and for that reason summarily dismissed him, and thereafter failed to
reinstate him."
Palumbo, Perry, Candito, Elliott, and Stubblebine, were discharged at the
same time, for the same reason, and under the same circumstances. Their dis-
charges may be considered together. Upon the facts, as outlined above, the
discharge of these employees was clearly discriminatory. Wiseman's interroga-
tion of them concerning their signing of a paper agreeing to join a union was
unlawful!' The respondent discharged these employees in conjunction with his'
unlawful interrogation, of them and left no doubt that they were being dismissed
13 Wiseman ' s voluntary injection of Juliano ' s union activity into the interview with
Palumbo , and the inconsistency of the asserted reasons tor the discharge as given to
Juliano and Palumbo suggest that the respondent was seeking to avoid a charge of discrimi-
nation, but was not certain just what its explanation of its action against Juliano would be.
11 The-record contains no direct evidence that the respondent knew of Juliano s union
activity at the time of his discharge. Nor does the record contain any denial by the
respondent of such^kno,^wledge. All the facts and ciicumstances in the case , however, includ-
ing the timing of the discharge, the failure to explain it, and the respondent's detailed
knowledge of the contents of the papers circulated by Juliano and the number and identity
of the employees who signed them, amply justify an inference, that the respondent was awaie
of Juliano's union activity. It is impossible for the undersigned to believe that the
respondent learned,all that it did about the contents of the papeis without also learning
who circulated them. Knowledge of union activity actually engaged in may be presumed,
especially when the plant, is small and the employer, as here, engages only about 25
employees. Cf. N. L R. B. v. Abbott Worsted Mills, Inc, 127 F. (2d) 438 (C. C. A 1).
Moreovei, the Board may rely upon "circumstantial evidence of discrimination" and is "not
required to deny relief because there was no diiect evidence that the employer knew" that
Juliano had engaged in union activity . N. L. it. B v. Link -Belt Company , 311 U. S.
584, 602. -
15 Cf. Botany Worsted Mills v. N L. R. B., 106 F (2d) 263 (C. C. A 3) ; N L. If. B. v,
Lane Cotton Mills, 111 F. (2d) 814 (C C A, 5) ; Montgomery Ward it Co v. N. L. R B,
107 F (2d) 555 (C C. A. 7) ; North Whittier Height Citrus Ass'n v. N. L. R B, 109 F.
(2d) 76 (C. C. A 9).
521247-43-vol. 48-84
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they had signed a paper agreeing to join a union 10 Here, as in Juliano's
case, the respondent, except for the vague and unpersuasive assertion contained
in its answer, has made no attempt to show that its discharge of these employees
was for legitimate reasons. There can be no doubt, upon the facts disclosed
by this record, that the respondent discharged and thereafter failed to reinstate
the above-named employees because of their expressed desire to form and join
a union. The undersigned so finds.17
It is well settled that the discharge of employees because they join or assist
a labor organization, or engage in other concerted activities for their mutual
aid and protection, interferes with and restrains employees in the exercise of
the rights guaranteed by the Act, and discourages membership in labor organiza-
tions 18 That an employer may not lawfully so discourage membership in labor
organizations is an elementary proposition to
The undersigned, finds that the respondent has discouraged membership in a
labor organization by discriminating in regard to the hire and tenure of employ-
ment of Jerry Juliano, Thomas Palumbo, Rose Perry, Palma Candito, Erna Elliott
and Emma Stubbeebine,'° and has thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
B. Interference, restraint and coercion
The complaint alleges that the respondent has interfered with, restrained, and
coerced its employees, by reason of the fact that it assisted and recruited members
for the International.
i 10The discharge of Stubblebine is no less discriminatory because of the, fact that , She had
not signed the paper but had merely authorized Juliano to put her name on it. , Clearly, the
respondent believed that Stubblebine had signed the paper and discharged her because of
its belief that she had agreed to join a labor organization
IT The respondent argued at the heaiing that the record is barren of evidence that it had
knowledge of the contents of the paper signed by these employees or that they in fact had
,signed the paper. There is no merit in this contention . It ignores the testimony of Pa-
lumbo, Perry, and Elliott that one or both of the Wisemans said that Norbert Wiseman
had seen their names on the paper. It also ignores the facts that the five employees dis-
charged on December 30 v ere among the last to be called to Wiseman's office and that they
were successively called into the office. Moreover, there is no attempt, even in argument,
to explain Wiseman's conduct on December 30, except to say that the plant was being in-
vestigated because of the respondent's government contract and the timing of Wiseman's
inquiry was a mere coincidence . Jacob Wiseman heard this testimony of the discharged
employees , and made no effort to deny it Norbert Wiseman is in the armed . forces and
was unavailable as a witness . However, in view of the respondent 's failure to adduce any
evidence, the undersigned has no reason to believe .that the situation would have been
different had Norbert Wiseman been available.
The respondent also contends that the absence of previous unfair labor practices is "sig-
nificant to the point where it just can not be brushed aside " The complete answer to that
contention is that such a clear violation of the Act as the discharge of these employees
requires no prior history of unfair labor practices to establish it.
'B It is unimportant , that the paper signed by the discharged employees designated no
;particular labor organization. Several witnesses testified that they had the Union in mind
when they signed the-paper. In any event, a discharge for concerted activity looking to-
ward collective • bargaining or other mutual aid and protection is discriminatory even
though not identified with any particular labor organization. Cf. Matter of Atlanta Flour
and Cardin Company, inc, 41 N. L. R. B. 409, 416, and cases there cited.
''s See N. L. R. B Section 8 (.3); Second Annual Report of the N. L. R. B., p . 69, et seq.,
and cases there cited.
20 As noted above, the allegation of the complaint that the respondent on January 5, 1942,
disciimin'atorily discharged William J Moore, was, upon motion of counsel for the Board,
dismissed without prejudice.
LEATHERWEAR COMPANY, INC. 1331
The International, in January 1942, called upon Jacob Wiseman and requested
the privilege of organizing the respondent's employees. On January 23, 1942,
after some negotiations, but without any evidence that any of the 'respondent's
employees had-joined the International, the respondent and the International
executed a contract effective for a 2-year period commencing February 1, 1942,
providing, inter alia, for a closed-shop and check off union dues and other fees.
Shortly after this contract was signed, Wiseman received through the mail a
package of unsigned International membership cards n
On January 30, a notice appeared on the respondent's time clock stating that
Norbert Wiseman wanted to meet the employees immediately, after work that
evening. During that afternoon Norbert Wiseman, told several employees to
.work overtime that evening, and just before the regular quitting time Jacob
Wiseman told Clinton Barnes, an employee, to see what Norbert Wiseman wanted
and then return to work. When the employees were assembled, Norbert Wiseman
and Hulse distributed the International's membership cards. Wiseman referred
to the respondent's dealings with the International," and stated that the em-
ployees could sign the International's cards if they so desired but that they
were not required to do so 21 While Norbert Wiseman met with the, employees,
Jacob Wiseman remained in the.plant in the vicinity of the meeting place.
On February 2, the employees were notified of a forthcoming meeting of the
International, by a notice on the time clock and by notices pinned to their time
cards. The meeting so announced was held and almost all of the respondent's
employees attended. A representative of the International stated at this meeting
that the respondent and the International had signed a contract to become effec-
tive when the employees joined the International, and, read portions of the
contract to the assembled employees. The International's- membership cards
were distributed and the employees were invited to sign them. Hulse was present
at the meeting and was elected by acclamation, the International's shop steward-
in the respondent's plant. .
It has been found above that Hulse and Norbert Wiseman are closely identified
with the management and are reasonably soa regarded by the employees. The
activity on behalf of the International in which Norbert Wiseman and Hulse
engaged, as well as Jacob Wiseman's dealings with the International, as above
described, could not fail to impress upon the employees the respondent's
favoritism for the International. Such activity was of invaluable assistance to
the Intern ational.24
21 These findings are based upon the undisputed testimony of Jacob Wiseman which the
undersigned credits
22 Charles Crist, an employee; testified that Wiseman said that the respondent had signed
a contiact with the International. Clinton Barnes, another employee, testified that Wise-
man said that the respondent was thinking of, having an A F of L union in the plant if
the employees wanted it Crist and Barnes were the only witnesses who testified concerning
the meeting In the undersigned's view the difference in the two accounts of what Wiseman
said is a difference reasonably likely to occur when two credible witnesses relate the
details of a certain event. The undersigned finds that this minor difference does not con-
stitute a material conflict in the'testimony of the two witnesses
23 The finding concerning the distribution of the International's membership cards and
Norbert Wiseinan's remarks at that time is based upon the mutually corroborative testimony
of Barnes and Charles Crist. Jacob Wiseman testified that he gave the International's
cards to his son, Norbert, and instructed him to give them to a' representative of the Inter-
national employed in a nearby plant In view of the fact that the cards were actually
distributed to the respondent's employees by Hulse and Norbert Wiseman and in view of
Barnes' undisputed and credible testimony that Jacob Wiseman was present in the plant
while the cards were being distributed, Jacob Wiseman's testimony on this point is not
credited
24 Cf Al L R. B. v. Electric Vacuum Cleaner Company, Inc, et al., 315 U. S. 685; '
Matter of Premo Pharmaceutical Laboratories, Inc, 42 N. L R B. 1086.
521247-43-vol. 48=85
1332 DECISIONS OF NATIONAL LABOR RELATIONTiS BOARD
The undersigned finds that by the above-stated activity of Norbert Wiseman and
Hulse, on behalf of the International and by Jacob Wiseman's above-described
dealings with the International the respondent sponsored, supported, and assisted
the International in obtaining membeis among the respondents employees, and
has thereby interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Ac1.2i - -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set foith in Section III above, occurring in
connection with the operation 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,
the undersigned will recommend that it cease and desist therefrom, and take
certain affirmative action designed to effectuate_the Dolicies of the Act.
Having found that-the respondent discharged, and thereafter tailed to reinstate
Jerry Juliano, Thomas Palumbo, Rose Perry, Palma Candito, Erna Elliott, and
Emma Stubblebine, for the reason that they, and each of them, assisted in the
formation of a labor organization and engaged in concerted activities for the
purpose of collective bargaining and other mutual aid and protection, the under-
signed will recommend that the respondent offer to each of the above named
employees immediate and full reinstatement to his or her former or substantially
equivalent position without prejudice to'any seniority or other rights or privileges
beer she may have, and to dismiss, if necessary, any employees, who may have
been lured to fill the positions previously held by them., The undersigned will
further recommend that the respondent make the above named employees whole
for any loss of pay they have suffered by reason of their discharge by payment
to each of them of a sum equal to the amount which he or she would, normally
have earned as wages from the date of his or her discharge to the date of the
respondent's offer of reinstatement, less his or her net earnings during said
period 2°
It will also be recommended that the respondent post appropriate notices in
its plant. In order to dissipate the effect of the respondent's unlawful 'assistance
to the Inteinational, it will be recommended that the notices contain a statement
25 On Apul 14, 1942. the contract between the respondent and the International was
mutually disaffirmed The respondent contends that because of the disaffirmance of the
contract the respondent's dealings with the' International is a moot question and for that
reason objected to,and moved to strike all evidence with icspect thereto The respondent's
position in thisomalter is untenable ' The effect of the respondent's interference, restraint,
and coercion inherent in its dealings' with, and its activity on behalf of; the International'
could not be dissipated by the mere disathrmance of the contract, especially in the absence
of notice to the employees of the disafflimance The respondent must take effective action
torennedy the effect of its unlawful conduct
2G By "net earnings" is meant earnings less expenses, such as for transportation, room,
and boaid, incurred by an''emplo)ee in connection! with obtaining work and working else-
where than for the iespondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhbre See Matter
of Crossett Luinbei Company and United Br other hood of Carpenters and Joiners of America,
Linnbei and Sa inisll TVn leers Union, Local 200, 8 N L R B. 440 'Monies received for
work pei formed upon Federal, State, county, municipal or other work-relief projects shall
'be considered as eainnngs See Republic Steel Corporation v N. L R B , 311 U S 7.
LEATHERWEAR COMPANY, INC. 1333
that the contract between the respondent and the International , dated January 29,
1942, has been disaffirmed , and is no longer in effect. -
Upon the basis of the foregoing findings of fact and upon the entire record of
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1 Fur Dressers & Dye's Union, Local 135, affiliated with the International Fur
and Leather Workers Union of U S and-Canada, affiliated with the ' Congress
of Industrial Organizations, and International Ladies' Handbag, Pocketbook &
Novelty Workers Union, affiliated with the American Federation of Labor, are
labor organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Jerry
Juliano, Thomas Palumbo, Rose Perry, Palma Candito, Erna Elliott, and Emma
Stubblebine, thereby discouraging membership in a labor organization, the re-
spondent has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
3 By assisting International Ladies' Handbag, Pocketbook & Novelty Workers
Union, and in other ways interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the respondent
has engaged in and is engaging in unfair labor practices, within the meaning of
Section 8 (1) of the Act '
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) `and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that, the respondent, Leatherwear Company, Inc., Middle-
town, New York, and its officers, agents, successors, and assigns, shall :
1 Cease and desist from :
(a)! Discouraging membership in Fur Dressers & Dyers Union, Local 135,
affiliated with International Fur and Leather Workers Union of U.,S. and Canada,
C I 0, or any other labor organization, by discriminating in regard to the hire
or tenure of employment or any terms or conditions 'of employment of its
employees ;
(b) Sponsoring, assisting, or supporting International Ladies' Handbag, Pock-
etbook & Novelty Workers Union, A F. of L
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to. form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing and to engage in concerted activity for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act: , -
(a) Offer to Jerry Juliano, Thomas Palumbo, Rose Perry, Palma Candito, Erna
Elliott, and Emma Stubblebine, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority or other
rights and privileges, and, if necessary, dismiss any employees who may have
been hired to fill the positions previously occupied by said employees; -
(b) Make whole Jerry Juliano, Thomas Palumbo, Rose Perry, Palma Candito,
Erna Elliott, and Emma Stubblebine for any loss of pay they may have suffered
by reason of the respondent's discrimination against them, by payment to each of
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them of a sum of money equal to that amount which he or she normally would
have earned as wages from the respective dates of such' discrimination against
them to the date of the respondent's offer of. reinstatement; less his or her net
,earnings during such period ; 24
(c) Post immediately in conspicuovs places in its plant at Middletown, New
York, and maintain for a period of at least sixty (60) consecutiv , e days from
the date of posting, notices to its employees stating: (1) that the respondent
will not engage in the conduct from which it is recommended that it cease and,
desist in paragraphs 1 (a), (b), and (c) of these recommendations; (2) that.
the contract between the respondent and the International Ladies' Handbag,
Pocketbook & Novelty Workers Union,.A. F. of L. dated January 29, 1942, has
been disaffirmed and is no longer in effect; (3) that the respondent will take the
.affirmative action set forth in paragraphs 2 (a) and (b) of these recommenda-
tions;, and (4) that the respondent's employees are free to become or remain
members of Fur Dressers & Dyers Union, Local 135, affiliated with International
Fur and Leather Workers Union of U S. and Canada, C I 0., or any other labor
organization, and that the respondent will notdiscrimmate against any employee
because of Inembelship in or activity on behalf of that or any other labor orgaui-
zation ;
(d) Notify the Regional Director for the Second Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply, with the foregoing recommendations, the National
Labor Relations Board issue an order requiring respondent to take the action
aforesaid. e
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28, 1942-
any party may within fifteen (15) days from the date of the entry of the order
transferring the case to, the Board, pursuant to Section 32 of Article lI of said
Rules and Regulations, file with the Board, Shoreham Building, Washington,
D. C., an original and four copies'of•a statement in writing setting forth such'
exceptions to tl^e Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon, to-
gether with the original and four copies of a brief in support thereof. As further
provided in said Section 33; should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board within
ten (10) days from the date of the order transferring the case to the Board.
WILLIAM F. GuFFFY, JR.,
Trial Examiner.0
- Dated December 8, 1942.
21 See footnote 26, supra.