Beckerman Shoe Corp. of Kutztown

National Labor Relations Board - Board Decisions

Mar 27, 1940

21 N.L.R.B. 1222 (N.L.R.B. 1940)

In the Matter of BECKERMAN SHOE CORPORATION OF KUTZTOWN and
UNITED SHOE WORKERS OF AMERICA
In the Matter of BECKERMAN SHOE CORPORATION OF BOYERTOWN and
UNITED SHOE WORKERS OF AMERICA
Cases Nos. C-723 and C-724, respectively. -Decided March 27, 1940
Shoe Manufacturing Industry-Interference, Restraint , and Coercion: ques-
tioning of employees by plant superintendent and foremen regarding union
membership, anti-anion statements by supervisors , lock-out threats , and promise
of a wage increase to deter employees from union membership-Strike: caused
by unfair labor practices-Unit Appropriate for Collective Bargaining: pro-
duction employees at Boyertown factory, exclusive of foremen and office em-
ployees-Representatives : proof of choice : membership applications ; majority
established prior to strike ; stipulated testimony that many employees failed to
read union membership applications and of statements made by union or-
ganizer, held not to impair showing of majority ; unnecessary to consider
majority status following sit-down strike in view of finding of no refusal to
bargain-Collective Bargaining : charges of refusal to bargain collectively, dis-
missed ; impasse reached in the negotiations-Reinstatement : denied employees
who engaged in sit-down strike ; ordered as to striking employee who did not
participate in sit-down strike-Back Pay: ordered in the event that reinstate-
ment of striking employee upon application is refused from five days after such
refusal to offer of reinstatement-Employer: responsibility of corporate suc-
cessor for unfair labor practices committed by predecessor , where successor
corporation acquired ownership of plant where unfair labor practices were
committed with knowledge of their commission , and was subject to sub-
stantially the same stock ownership and control as predecessor , and continued
the business of the predecessor.
Mr. Geoffrey Cunniff and Mr. Joseph Castiello, for the Board.
Stevens ct; Lee, by Mr. John B. Stevens and Mr. Allan K. Grim,
of Reading, Pa., for the respondent.
Mr. Leo Goodman, of Washington, D. C., and Mr. George Martin,
of Philadelphia, Pa., for the United.
Mr. Roman Beck, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Shoe
Workers of America, herein called the United, the National Labor
21 N L. R. B., No. 123
1222
BECKERMAN SHOE CORPORATION 1223
Relations Board, herein called the Board, by John E. Johnson, Act-
ing Regional Director for the Fourth Region (Philadelphia, Penn-
sylvania), issued its complaint, dated May 7, 1938, against Beckerman
Shoe Corporation of Kutztown, Kutztown, Pennsylvania, 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), (3), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act.
The complaint alleged in substance : (1) that the respondent in-
timidated its employees to discourage membership in the United, and
discriminatorily discharged John Houck,' an employee at Kutztown;
(2) that the respondent refused to bargain collectively with the
United as the representative of its Boyertown 2 production employees,
although a majority of them within an appropriate unit had desig-
nated the United as their collective bargaining representative; (3)
that on or about August 7, 1937, the respondent's Boyertown em-
ployees struck because of the respondent's unfair labor practices;
and (4) that by the foregoing acts, and in other ways, the respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. The complaint and
the accompanying notice of hearing were duly served upon the
respondent and upon the United.
The respondent filed an answer denying the material averments
of the complaint, denying that it had any knowledge of the United's
designation by a majority of the Boyertown employees, and denying
that it had refused at any time to bargain collectively with the
United.
Separate charges having been filed in respect to the unfair labor
practices alleged to have occurred at Kutztown and Boyertown, re-
1 The complaint was dismissed as to Huck on motion of counsel for the Board
2 Until May 9, 1938, the respondent owned and operated shoe factories at Kutztown and
Boyertown , Pennsylvania On May 9 , 1938 , Beckerman Shoe Corporation of Boyertown,
a separate corporation , herein called the Boyeitown Company, was organized under the
laws of Pennsylvania and acquired the respondent ' s Boyertown plant, in which it con-
tinued the manufacture and sale of shoes. On January 4, 1940, the respondent and Becker-
man Shoe Corporation of Boyertown entered into a stipulation with the United and with
counsel for the Board which , by its terms , was to become a part of the record herein The
stipulation provides.
That from May 1, 1937 , down to and including May 9, 1938 , Max Beckerman [the
respondent 's president ] was the majority owner and in control of the Beckerman Shoe
Corporation of Kutztown ;
That on and after May 9, 1938 , the said Max Beckerman became the majority
owner and in control of the Beckerman Shoe Corporation of Boycitown, while con-
tinuing majority ownership , and control of the Beckerman Shoe Corporation of
Kutzto s n.
The relationship of the respondent and the Boyertown Company is discussed more fully
in Section I and in the section entitled "The Remedy" of this Decision
1224 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
spectively,3 the Board, acting pursuant to Article II, Section 37 (b),
of National Labor Relations Board Rules and Regulations-Series 1,.
as amended, ordered the proceedings based upon such charges con-
solidated for the purpose of hearing.
Pursuant to notice, a hearing was held at Reading, Pennsylvania,.
on May 19, 20, and 23, 1938, before James C. Batten, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was.
afforded all parties. During the course of the hearing, the Trial
Examiner made various rulings on motions and 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 June 22, 1938, the Trial Examiner filed his Intermediate Re-
port, in which he found that the respondent had committed unfair
labor practices affecting commerce, within the meaning of Section
8 (1) and (5) and Section 2 (6) and (7) of the Act, and recom-
mended that the respondent cease and desist from such unfair labor
practices and take certain affirmative action remedial of their effect.
On July 1, 1938, the respondent filed exceptions to the Intermediate
Report and thereafter filed briefs in support. of its exceptions. Pur-
suant to notice, hearings for the purpose of oral argument upon the
exceptions to the Intermediate Report were held on October 20,
1938, and July 6, 1939, before the Board in Washington, D. C. At
both hearings, the respondent appeared by counsel and the United
by its representative, and they participated in the argument.
On October 27, 1939, the respondent and Beckerman Shoe Corpora-
tion of Boyertown filed a petition requesting the Board to reopen
the record and direct a further hearing for the purpose of receiv-
ing,eyidence as to the identity of the respondent's employees who
engaged in the sit-down strike hereinafter, mentioned. On January
4, 1940, the respondent, Beckerman Shoe Corporation of Boyer-
town, the United, and counsel for the Board entered into a stipula-
tion, subject to the approval of the Board, which set forth the names
of the respondent's employees who engaged in the sit-down strike
and the facts concerning the Boyertown Company. The Board hereby
approves the stipulation Ind makes it a part of the record herein.
The Board has fully considered the respondent's exceptions to the
Intermediate Report and, in so far as they are inconsistent with
g The only evidence relating to the commission of alleged unfair labor practices at the
Kutztown plant was stricken from the record without objection We shall accordingly
dismiss the allegations of the complaint that refer to the Kutztown factory
BECKERMAN SHOE CORPORATION 1225
the findings, conclusions, and order set forth below, finds them to
be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
J. THE BUSINESS OF TIIE RESPONDENT AND OF THE BOYERTOWN COMPANY
At the time of the occurrence of -the unfair labor practices alleged
in the complaint, Beckerman Shoe Corporation of Kutztown, the
-respondent, was a Pennsylvania corporation engaged in the manu-
facture and sale of shoes at Kutztown and at Boyertown, Pennsyl-
vania.' Prior to the acquisition on May 9, 1938, by the Boyertown
Company of the respondent's Boyertown plant, the respondent's
gross sales amounted to approximately $600,000 a year. Approxi-
mately 85 per cent of the shoes which the respondent manufactured
-while it owned both the Kutztown and Boyertown factories were
regularly shipped by it in interstate commerce from those factories
to other States and approximately 60 per cent of the raw materials
which it then used for production were shipped to its factories from
States other than Pennsylvania. The respondent admitted in its
.answer the allegations of the complaint relating to the interstate
nature of its business operations.
Since May 9, 1938, the averagq gross sales of the respondent and
.of the Boyertown Company have each amounted to approximately
$300,000. Since that date approximately 75 per cent of the output
of both companies has been shipped in interstate commerce from their
Pennsylvania factories to other States and approximately 60 per
cent of the raw materials which they have used for production have
been delivered to their Pennsylvania factories from other States.
II. THE LABOR ORGANIZATION INVOLVED
United Shoe Workers of America is a labor organization affiliated
-with the Committee for Industrial Organization.' It admits to
membership production employees of the respondent, exclusive of
supervisors.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In the latter part of June or the early part of July 1937, the United
began to organize the respondent's Boyertown and Kutztown eni-
A See footnote 2, supra.
5 Now the Congress of Industrial Organizations.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees and chartered Local Union No. 153 to admit them to mem-
bership.
The respondent soon attempted to alienate the United's member-
ship. Peter Smith,6 the president of Local Union No. 153, testi-
fied that in July 1937, Sam Savoca, the superintendent of the
respondent's Boyertown factory, questioned him regarding the
C. I. O. in the presence of Raymond Pettyjohn, his foreman.
According to Smith, Savoca remarked on that occasion : "Don't
you know that they [the C. I. 0.] are troublemakers . . . ? All
they want is your money . . . Furthermore, Beckerman won't join
the C. I. O... . If you get in these union activities, one of these
days . . . I will just turn the key and you will be out of a job."
Smith further testified that on several other occasions Savoca and
Pettyjohn urged him to persuade his fellow workmen not to join
the United, and that Savoca offered him money if he would do
as they asked.
Notwithstanding the respondent's hostility to the United, 80 of
the Boyertown production employees signed United membership
applications at a meeting held on August 2, * 1937. The following
day the United sent a telegram to the respondent informing the
respondent that it had been designated as the bargaining representa-
tive of a majority of the Boyertown employees, and requesting a
bargaining conference not later than August 9, 1937.
Confronted with this request, the respondent intensified its
efforts to undermine the United's membership. Joseph Redcay, a
thread laster, testified that on August 3, 1937, Savoca had offered
him a wage increase and a second-hand automobile if he would dis-
close who the leaders were in the organizing campaign of the United.
On the same day, Savoca and Pettyjohn addressed the cutting-
department employees, who had assembled in the factory office
at the direction of their foreman. The following extract from the
testimony of Leroy Heydt, a cutter, describes what took place at
the meeting :
.. . They started asking us, each one, if you were for the
union or against the Union.
Q. Who asked you that?
A. Ray Pettyjohn.
Q. He asked each member of the cutting department?
A. Yes.
The credibility of Peter Smith and of the other witnesses from whose testimony we
have quoted in Section III A is considered later in this Decision . For reasons hereinafter
stated, we later find that Savoca and the respondent 's other supervisors , In substance,
made the antiunion statements attributed to them by these witnesses.
BECKERMAN SHOE CORPORATION 1227
Q. Was Savoca there when Pettyjohn was asking if they
were for the union or against the union?
A. Yes.
Q. What happened after that?
A. He said if you join the union, they are just after your
quarter.
Q. 25 cents?
A. Yes. They said if we would join the union we would not
have any work, and if we would stick with the company we would
have plenty of work.
Q. How long did that talk last?
A. An hour and a half.
Q. During the hour and a half was the conversation all about
the union?
A. Yes.
On the following day, August 4, 1937, George Haddad, the fore-
man of the thread lasters, called the men in his department together.
After they had assembled, Savoca, according to Redcay, told the
thread lasters : "Listen, boys, I don't want you to join the union. Mr.
Beckerman might consider signing up with the A. F. of L., but the
C. I. O.-never. They are only a bunch of racketeers . . . You keep
away from the union and don't sign up, and I will get you a 5-per
cent raise plus the bonus if you will keep out ..." In testifying
regarding Savoca's speech, Calvin Weiss, a thread laster, confirmed
in part Redcay's version of Savoca's statements ; Weiss added, how-
ever, that Savoca also made the following threat, "In case you join
the union, why, one morning you might find the place locked up,
because I got enough money and I can go on a vacation."
On August 5, 1937, the day after Savoca's speech to the thread Tast-
ers, Pettyjohn,7 in the presence of Savoca, addressed the women of the
fitting department, who had assembled in the factory office at the re-
quest of their foreman. At the hearing, Jenny Bauer, an employee
of that department, gave the following account of what took place at
this meeting :
He (Pettyjohn) asked us not to join the union because it was no
good. He said it was a bunch of racketeers and that if we would
stick to the firm and to the company, that would be good for us
and they would be good to us and they would treat us nice and
.give us our 5-per cent bonus right'away and we would not have
to wait until Christmas to get it. Then he said, "I am going to
7 Pettyjohn succeeded Savoca as the superintendent of the Boyertown factory after the
latter went into business for himself.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ask each one present whether you are for the union or against
it . . ." He said if we joined the union they can take-I think he
said 7/8-of your pay away from you without consulting . . . He
said if we belonged to the union we would come in to work some
morning and the doors might be locked on us."
Although at the hearing Savoca and Pettyjohn denied ever having
threatened or bribed employees to keep them from joining or remain-
ing members of the United, they were not asked to affirm or deny hav-
ing made disparaging remarks about the United. As we have
previously noted, in testifying to the threats and financial inducements
which Savoca, and Pettyjohn made to persuade the employees to
abandon their union affiliation, the union witnesses also stated that
Savoca and Pettyjohn made several such derogatory remarks. The
testimony of the union witnesses in regard to these matters, in contrast
to that of Savoca, was forthright, specific, and consistent; and its
verity was not impugned on cross-examination.
In view of important differences between Savoca's and Pettyjohn's
versions of the departmental meetings, we are unable to accept either's
testimony concerning them. Savoca stated that he decided to call the
meetings "to see what they [the employees] wanted" because he heard
that a union organizer was in town, that a few employees had joined
the Union, and that certain employees were dissatisfied with the wage
rates. However, Savoca declared he had not taken these rumors seri-
ously, and had so informed Max Beckerman at the time. Pettyjohn,
on the other hand, testified that the meetings were called to avert a
sit-down strike that Savoca and he feared was imminent. Pettyjohn
stated that, at Savoca's direction, he had asked the employees of the
cutting and fitting departments "... not to sit down or have any
trouble, but go ahead and work until Mr. Beckerman would come in,
and he can straighten out whatever grievances they have . . . " In
explaining why Savoca and he feared that the employees contemplated
a strike, Pettyjohn said that on August 3 he questioned Peter Smith
as to the United's membership strength and was told by Smith that
approximately 60 per cent of the employees were then members of the
Union, and that there would be a strike. Savoca, however, did not
even mention the Smith incident in his testimony. In marked con-
trast to Pettyjohn's professed anxiety over the Union's organizational
success, Savoca, as has been noted, affected an attitude of unconcern.
Indeed, Savoca testified that so far as he then knew only a few em-
ployees had joined the Union. In view of their contrasting attitudes,
it is not surprising that they differed as to the reason for calling
the meetings. Savoca asserted that he desired merely to find out
why the employees were dissatisfied and what they wanted. He
did not state that a strike was imminent, which he desired to prevent.
BECKERMAN SHOE CORPORATION 1229
Pettyjohn, on the other hand, declared that on instructions from
Savoca he had pleaded with the employees not to engage in a sit-
down strike. In view of these discrepancies between Savoca's and
Pettyjohn's testimony, we are unable to accept either's version of what
occurred, at the departmental meetings.
We find that, in substance, Savoca and Pettyjohn made the remarks
disparaging to the United described above; that in their speeches
to the cutting, fitting, and thread lasting departments they promised
the employees a wage increase and a. bonus if the employees would
give up the United, and threatened them with a lock-out if they
remained loyal to the United.
These attempts of Savoca and Pettyjohn to undermine the mem-
bership of the United were supplemented by acts of certain foremen :
At the hearing, Gordon Spohr, a thread Laster, quoted his foreman,
Haddad, as having told him prior to his joining they Union that the
United was a "bunch of racketeers." While Haddad denied talk-
ing with any employee about joining the Union, he did not specifi-
cally deny the statement attributed to him by Spohr. Sadie Weiser,
a packing-department employee, testified, without contradiction, that
on August 2, 1937, her foreman, George Hyam, warned her against
having anything to do with the United, and told her that "they
were a bunch of racketeers." We find that Haddad and Hyam made
the above statements.8
We find that the respondent, by the statements and acts of Savoca,
Pettyjohn, Haddad, and Hyam, found above, interfered with, re-
strained , and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
B. The strike
During the afternoon of August 4, 1937, the foreman of the cutting
department told his men that he had no further work for them to do,
and that he would let them know when they would again be needed.
A general lay-off of the cutters had never occurred before, and the
members of the United shop committee became alarmed at the situa-
tion. That evening the Committee went to the home of a United
organizer and informed him of what had taken place. The latter
reminded the Committee that Max Beckerman was in a position to
shift work from Boyertown to the Kutztown and Brooklyn plants
which he controlled, and told the Committee that the respondent's
attempts to alienate the Union's membership and threats of a lock-
sCf. Swift cE Company v. National Labor Relations Board, 106 F. (2d) 87, 93, wherein
the Court said : "Furthermore , with respect to the acts of the supervisory foremen, the
doctrine of re8pondeat superior applies , and petitioner is responsible for the actions of its
supervisory foremen, even though it had no actual participation therein "
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out lent support to the employees' fear that the lay-off of the cutters
foreshadowed a shut-down of the entire, plant. He then advised the
Committee to instruct the cutters to return to the factory the next
morning, and to insist that they be given work.
In keeping with this advice, the cutters came to the factory the
following morning, and the United shop committee demanded that
Savoca give them work. The testimony concerning the Committee's
conversation with Savoca and the events following it is in conflict.
The union witnesses stated that except for the son of a foreman the
cutters were given no work that morning; but the respondent's wit-
nesses denied this, asserting that Savoca informed the Committee that
be had no tickets 9 to give the cutters. They further stated that
Savoca then offered to permit the cutters to work on stock shoes if the
Committee insisted upon their being given work, but that the Com-
mittee refused to allow the cutters to work without tickets. The
respondent offered no explanation at the hearing for the Committee's
alleged insistence on tickets. There is no evidence that the employees
enjoyed benefits when working on shoes accompanied by tickets de-
nied them when working on stock shoes. Moreover, Savoca himself
testified that it was the respondent's regular practice to manufacture
stock shoes whenever the supply of tickets was exhausted. In the
absence of evidence that the union committee's alleged insistence on
tickets had a rational basis, we cannot believe that it did insist upon
tickets. We are unable to credit the testimony of the respondent's
witnesses in this respect and are satisfied that Savoca did not offer the
cutters any work on August 5, 1937.10
The Committee's conversation with Savoca occurred during the
morning of August 5. About noontime, certain employees stopped
working in protest against the respondent's failure to give work to
the cutters. In the latter part of the afternoon all of the women
and the younger men went home, while the older men remained in the
plant. This was the beginning of the sit-down strike. The follow-
ing morning, the United established a picket line outside the factory.
The day after the strike began, Max Beckerman, the respondent's
president and treasurer, entered the plant and addressed the sit-down
strikers. The United witnesses testified that Beckerman said he
would never recognize the C. I. 0., urged them to settle the strike
without the intervention of outsiders, and promised them a wage
increase if they would do as he requested. At the hearing, Becker-
0 These tickets were tags affixed to the shoes during the manufacturing process, which
recorded the size of the shoe and the several operations involved in its manufacture. -The
tickets were prepared in the respondent ' s sales office and were sent from that office to the
Boyertown factory.
10 The complaint did not allege any unfair labor practice by reason of the respondent's
failure to offer the cutters work on August 5, 1937, and we make no finding with respect
thereto.
BECKERMAN SHOE CORPORATION 1231
rrlan denied making these statements, and testified that he urged the
sit-down strikers to select a committee "or anybody" to confer with
him with a view to settlement of the strike; that, while he was speak-
ing to the strikers, a representative of the United, who was then out-
side the factory, shouted to the men: "Don't listen to him; just stay
where you are; don't walk -out; don't go down in the office." Beck-
erman admitted at the hearing that prior to the strike he had been
informed of the United's telegram of August 3 requesting a bargain-
ing conference. Nevertheless he made no effort to confer with the
United's representative who he knew was then outside the plant. His
failure to do so makes it difficult for us to believe that he told the
strikers he would confer with "anybody" whom they designated. We
are convinced that Beckerman made the statements to the sit-down
strikers attributed to him by the United witnesses.
The sit-down strikers left the plant on August 17, 1937,11 after
which they joined the pickets. Though respondent attempted to
resume manufacturing shortly thereafter, several months elapsed
before it was able to operate normally. The United's secretary tes-
tified that 51 United members remained on strike at the time of the
hearing, and other witnesses testified that the strike was still in
effect at that time.
We find that the underlying cause of the strike was the employees'
fear that the August 4 lay-off of the cutters foreshadowed a lock-
out; 11 that their fear was engendered by the respondent's attempts
to destroy the Union by means of the intimidation and threats found
above; that the respondent did not give the cutters work on August
5, 1937, and that the employees went on strike in protest, believing
that the failure to give the cutters work was the precursor of the
lock-out that had been threatened. We therefore conclude that the
strike of August 5 was directly caused by the respondent's unfair
labor practices.13 We further find that the strike remained current
at the time of the hearing.
11 Shortly after Beckerman 's arrival in Boyertown , he instituted proceedings in the
County Court of Berk's County , Pennsylvania , to evict the sit-down strikers The County
Judge before whom the proceeding was pending suggested an amicable disposition of the
matter. The United representative thereupon informed the Judge that he would instruct
the sit-down strikers to leave the factory provided someone would inspect it prior to the
men's withdrawal to verify the fact that they were leaving "everything in- a first-class
condition " The United insisted upon an inspection of the plant because Beckerman had
asserted that the sit-down strikers damaged it . The United organizer testified that the
Judge himself inspected the factory , and that the men left the building promptly
thereafter.
12 A witness for the United testified that the employees went on strike because of the
respondent ' s intimidation of the United members following the Union' s request for a bar-
gaining conference and because the employees interpieted the unprecedented lay-off of the
cutters as the precursor of the lock-out that had been threatened.
'g Cf. Republic Steel Corporation v. National Labor Relations Board, 107 F. (2d) 472
(C. C. A 3), mod'g and enf'g as mod . Matter of Republic Steel Corporation and Steel
Workers Organizing Committee, 9 N. L. R B 219, where the Board found, and the Court
concurred in the finding , that the employer 's interference with the right to self-organiza-
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The alleged refusal to bargain collectively
1. The appropriate unit
The complaint alleged that the respondent's production employees
at the Boyertown factory constituted an appropriate bargaining unit.
At the hearing the respondent's president stated that such a unit,
exclusive of foremen and office employees, would be appropriate.
We have previously determined in similar cases that a unit of that
kind is appropriate 14 and there is nothing in the record to render it
inappropriate in this case.
We find that the respondent's production employees at its Boyer-
town factory, exclusive of foremen and office employees, constitute a
unit appropriate for the purposes of collective bargaining, and that
said unit insures and will insure to said employees the full benefit
of their right to self-organization and to collective bargaining, and
otherwise effectuates the policies of the Act.
2. Representation by the United of a majority in the
appropriate unit
There are 139 persons listed on the respondent's pay roll for the
week ending July 31, 1937,15 of whom 7 are foremen, 2 are office
employees, and 1 is a shipping clerk; hence during that pay-roll
period there were 129 employees within the appropriate unit. The
record does not indicate that any change occurred in the number
of employees within the appropriate unit between July 31 and Au-
gust 5, 1937, the date the strike began.
Ninety-two signed United membership applications were intro-
duced in evidence. A comparison of the signatures on these appli-
cations with the respondent's pay roll of July 31, 1937, shows that
all of the signers were then employees of the respondent within the
unit above found appropriate. The genuineness of the signatures
was not disputed, and the United organizer testified without contra-
diction that 80 of the applications were signed in his presence at the
United organizational meeting of August 2, 1937. Thus the United
tion of its employees was the fundamental , underlying cause of a strike precipitated by
the employer 's refusal to sign an agreement with the Union, which refusal was not found
to be an unfair labor practice . The Board's analysis of the causal relationship between
the antecedent unfair labor practices and the strike in the Republic case is applicable to
the causal relationship of the unfair labor practices and the strike in the present case
14 See Matter of A. Fink and Sons Co., Inc. and Amalgamated Meat Cutters & Butcher
Workmen of N. A., Local 422, A. F. of L., 9 N. L R B . 441; Matter of Newark Rivet Works
and Unity Lodge No . 420, United Electrical d Radio Workers of America , C. I 0., 9 N. L.
R. B 498; Matter of American Numbering Machine Company and International Associa-
tion of Machinists, District # 15, 10 N. L: R. B. 536; Matter of Union Envelope Company
and Envelope Workers Union No. 393 and International Printing Pressmen and Assistants'
Union of North America, 10 N., L. R. B. 1147
15 The pay-roll period preceding the strike
BECKERMAN SHOE CORPORATION 1233
represented a majority of the employees in the appropriate unit on
that date.
The respondent offered to call as witnesses 41 employees who had
signed United membership applications to testify: (1) that they
signed the applications without having read them; and (2) that they
were induced to sign them by the statement of a union organizer
that they would be fined if they delayed joining the Union until after
it had succeeded in organizing the employees, and that at such time
they would not be permitted to work for the respondent unless they
were union members. Counsel for the Board stipulated that these
witnesses would so testify. The record clearly shows that these
employees realized they were joining a union when they signed the
membership applications. In view of this, it is immaterial that
they failed to read the applications11, We do not think that the
statements of the union organizer noted above are controlling on the
issues here presented.17 We, therefore, conclude that the stipulated
testimony does not impair the United's showing of a majority status
on August 2, 1937.
We find that on August 2, 1937, the United was the duly desig-
nated representative.of the majority of the respondent's Boyertown
employees in the unit above found appropriate for the purposes of
collective bargaining, and that pursuant to Section 9 (a) of the Act,
it was then the exclusive representative of all the employees in such
unit for the purposes of collective bargaining.
As we have previously noted, the sit-down strike occurred on
August. 5, 1937. The stipulation of January 4, 1940, mentioned
above, sets forth the names of 60 employees who engaged in the sit-
down strike. Forty-seven of the sit-down strikers were members of
the United. In view of our finding, hereinafter made, that the
respondent did not refuse to bargain collectively with the United,
it is unnecessary for us to consider whether the United continued
16 In Matter of Campbell Machine Company , David C Campbell and George E. Campbell,
co-partners . trading as Campbell Machine Company and Intel national Association of Ma-
chinists , Local No 889; Shipwrights, Boatbuilders & Caulkers ; and International Brother-
hood of Electrical Workers, Local No 569, 3 N L R B 793 , 798, the Board stated : "By
voluntarily joining a labor organization an employee in effect designates that labor organi-
zation as his representative for purposes of collective bargaining"
19 In Matter of Viking Pump Company and Lodge 1683. Amalgamated Association of
Lion, Steel and Tin Workers of North America, through the Steel Workers Organizing
Committee , affiliated with the Congress of Industrial Organizations ( fo)merly Committee
for Industrial Organization ), 13 N. L. R. B 576, the employer asserted that an employee
had threatened his fellow v orkmen with the loss of their jobs if they did not join the
Union Our comment upon his statement is, apposite here :
However, his alleged statements to his fellow wiorlauen could only have meant that
they might lose their jobs if the Amalgamated obtained a closed shop, since he was
not a supervisory employee. Statements of that kind are not unusual during an
organizational campaign in a hitherto unorganized plant, especially when the union's
efforts are obstructed by employer interference such as is shown in this case.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to represent a majority of the respondent's employees throughout
the period of the bargaining negotiations, which followed the
sit-down strike.
3. The alleged refusal to bargain
After the sit-down strikers had left the respondent's plant on
August 17, 1937, the respondent's attorney wrote a letter to the
Regional Director in which he stated that the respondent believed
the United did not represent more than 15 to 20 per cent of the
Boyertown employees. Despite this assertion, the respondent's
attorney further stated in that letter that the respondent was willing
to meet the representatives of the Union but would require proof
of the Union's majority. Thereafter representatives of the respond-
ent and of the United met on August 20, 23, September 2, 13, and
December 3, 1937. Max Beckerman, the respondent's president, con-
ducted virtually all of the negotiations on its behalf. The United
was represented chiefly by George Martin, its organizer for the
State of Pennsylvania 18
At the first conference held on August 20, 1937, Martin presented
the Union's demands, which included certain minimum wage rates,
and a 40-hour workweek, with extra compensation for overtime.
Beckerman rejected the union proposals. Martin testified that the
subject of union recognition was discussed and that Beckerman ad-
mitted that the United represented a majority of, the Boyertown
employees. Peter Smith confirmed Martin's testimony in substance.
Smith added, however, that Beckerman had offered to reinstate all
of the strikers at the wage rates and working conditions then pre-
vailing. According to Beckerman, the discussion at this meeting
related principally to the Union's wage and hour proposals. Becker-
man stated that he had informed the union representatives that he
could not consider any wage increase because the Boyertown em-
ployees lacked sufficient skill to manufacture merchantable shoes,
and that the respondent would have to suffer a substantial loss in
the disposal of a warehouse full of unmerchantable shoes, which
these inexperienced employees had made. Although Beckerman
denied that he had conceded the Union's majority status, he said
18 The testimony of Beckerman and of Martin relating to the bargaining negotiations is
in large part contradictory . The other witnesses who testified with respect to the nego-
tiations were Herman Levin and Peter Smith , in behalf of the United , and John B . Stevens,
the respondent 's attorney . Levin's testimony relates solely to the conference of August
23, at which he represented the Union in the absence of Martin; Smith 's testimony relates
solely to the conference of August 20 The testimony of Stevens is very general in char-
acter except as to the August 23 conference . Inasmuch as there was no dispute concerning
the events of the August 23 meeting , the history of the bargaining negotiations was pre-
sented almost entirely in the sharply conflicting testimony of Beckerman and Martin.
BECKERMAN SHOE CORPORATION 1235
that he had offered to enter into a contract with the United as the
representative of all the Boyertown employees for a period of a
year upon the basis of the then prevailing wages, hours, and work-
ing conditions. Beckerman added that at the conclusion of the
group discussion he had repeated this offer to one Greco, a New York
representative of the United who was present at this conference,
and had suggested to Greco that the Union's attorney should pre-
pare such a contract. Greco was not called as a witness. We are
satisfied that Beckerman's testimony relating to this conference is
substantially correct.
The parties again met on August 23. At this meeting Beckerman
refused to sign an agreement for a consent election. At the hearing
Beckerman stated that his refusal was due to resentment of the sit-
down strike and his belief that the Union had resorted to intimida-
tion and deception in soliciting members. Beckerman did not,
however, persist in this attitude. On the contrary, at a subsequent
conference he himself suggested a consent election to resolve the ques-
tion of the Union's majority, but this time the United refused to
agree. While discussing the Union's contract proposals at one of
the later meetings, Beckerman suggested that the Union should
furnish a bond guaranteeing its performance of whatever contract
might be agreed upon.19 We do not think, however, that Becker-
man's remark concerning a bond was advanced as a serious and
final impediment to the consummation of a contract. Nor do we think
that the Union regarded it as such. During all the conferences sub-
sequent to that of August 23, the controversy over wages and hours
continued, but no agreement was ever reached. In making this find-
ing, we have not overlooked Martin's testimony that at the last con-
ference he expressed a willingness to enter into a contract on the
basis of the prevailing wage rates. Although this was not denied,
there was no evidence that the United was then willing to withdraw
its demands for a 40-hour week and overtime. We are convinced
that the controlling factor in the break-down of the negotiations was
the inability of the parties to agree upon substantive terms. Accord-
ingly, we shall dismiss the complaint in so far as it alleges that the
respondent refused to bargain collectively.
19 Beckerman 's testimony relating to this incident is, in part , as follows :
Well, he [ Martin] also brought up the question of our responsibility in keeping my
contract If they signed a contract, I said, "Can you be responsible without putting
up a bond?" I just made a statement ; I didn't mean it seriously.
Mr. Martin said, "We have enough money." He said , "We could put up a bond
for $100,000 "
I said, "All right ; I don't want $ 100,000. If you put up $5,000."
He said, "You put up $5,000."
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and have led and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
THE REMEDY
The respondent owned the Boyertown plant when the unfair labor
practices found above occurred. After the issuance of the complaint
in this proceeding and shortly prior to the hearing, Beckerman Shoe
Corporation of Boyertown acquired the respondent's Boyertown plant
and continued the manufacture and sale of shoes at that plant.
There is no evidence of any change either in the workmen or the
management of the Boyertown plant subsequent to its acquisition by
the Boyertown Company. When the unfair labor practices were
committed and at all times thereafter, Max Beckerman, the respond-
ent's president and treasurer, owned a majority of its stock and con-
trolled its business. Max Beckerman has also owned a majority of
the stock of the Boyertown Company and has controlled its -business
affairs ever since the Boyertown Company acquired the Boyertown
plant.20 Under these circumstances, we find that the Boyertown
Company has succeeded to the ownership of the Boyertown plant
with full notice of the pendency of this, proceeding and is responsible
for the unfair labor practices in which the respondent has engaged
with respect to employees of the Boyertown plant.Y1 We further find
that Max Beckerman is under an obligation to exercise his control
over the Boyertown Company to procure the latter's cooperation to
the extent necessary to effect compliance with our - Order.22
The facts stated above are set forth in the stipulation of January 4, i940 , to which
the respondent and the Boyertown Company were parties That stipulation was entered
into after the respondent and the Boyertown Company had petitioned the Board to reopen
the record in this proceeding Under these circumstances it is apparent that the Boyer-
town Company has intervened in this proceeding and is subtect to the jurisdiction of the
Board
21 See Matter of National Supply Company and Steel TVoike,s Organizing Committee,
16 N L. R B 304; National Labor Relations Board v. Arthur L. Gotten and Abe J.
Colman, co-partners doing business as Kiddie Koi.er Manufacturvng Company, 105 F. (2d)
179 (C C A 6). Cf Federal Trade Commission v Standard Education Society, at at,
302 U. S 112
=2 National Labor Relations Board v Hopwood Retinning Co., Inc, 98 F (2d) 97 (C C.
A 2), enfg in part Matter of Hopwood Retinning Conmpany, Inc and Metal Polishers,
Buffers, Platers and Helpers International Union Local Ao. 8 and Teamsters Union, Local
No 584, 4 N L R. B. 922; National Labor Relations Board v . Hopwood Retinninq Co ,
Inc, et at, 104 F. (2d) 302 (C C A 2) ; National Labor Relations Board v Arthur L
Gotten and Abe J. Colman, co-partners doing business as Kiddie Kot-er Mannfactuitug
Company, 105 F. (2d) 179 (C. C. A 6) , of Federal Trade Commission v Standard Edu-
cation Society, at al, 302 U . S. 112.
BECKERMAN SHOE CORPORATION 1237
Having found that the respondent has engaged in certain unfair
labor practices, we will order it and its successor, the Boyertown
Company, to cease and desist therefrom and to take certain affirma-
tive`adtion designed to effectuate the policies of the Act.
Since the strike was caused by the respondent's unfair labor prac-
tices, we would ordinarily require the reinstatement upon application
of all the strikers, in order to restore, as far as possible, the situation
existing prior to the strike. We shall not require this to be done in the
present case, however, for the reason that all but one of the strikers
participated in the sit-down strike. The reinstatement of those who
participated in the sit-down strike will not be ordered.23 In order
to effectuate the policies of the Act, we shall order the respondent and
the Boyertown Company, upon application, to offer reinstatement to
Sallie Bartman, the only striking employee who did not participate
in the sit-down strike.24 The offer of reinstatement shall be without
prejudice to the seniority and other rights and privileges of Sallie
Bartman. Any person not in the respondent's employ at the Boyer-
town plant at the commencement of the strike on August 5, 1937,
and who has since been hired at that plant either by the respondent
or by the Boyertown Company shall, if necessary to provide employ-
ment for Sallie Bartman, be dismissed.
We shall also order the respondent and the Boyertown Company
to make Sallie Bartman whole for any loss she will suffer by reason
of their refusal, upon her application following the issuance of this
Order, to reinstate her in the manner set forth above, by payment
to her of a sum of money equal to that which she would normally
have earned as wages during the period from 5 days after the date
of such application for reinstatement to the date of the offer of
reinstatement, less her net earnings 25 during that period.
21 See National Labor Relations Board v. Fansteel Metallurgical Corporation , 306 U. S.
240.
24 While the record does not clearly identify all of the employees who went on strike, the
United secretary testified that 51 members of the United remained on strike at the time of
the hearing . She prepared a list of these 51 employees , which was introduced in evidence.
The record shows that one of the employees named on that list, Raymond Rothenberger,
had left the respondent 's employ prior to the date of the strike , and that two others,
Andrew Hiryak and Ignacious Tucker, were reemployed by the respondent prior to the
hearing. We have compared the names of the remaining 48 striking employees with the
stipulated list of employees who engaged in the sit -down strike and find that all of the 48,
except Sallie Bartman, participated in the sit -down strike Though it is not certain from
the record that Sallie Bartman reported for work on the day the strike began , her name
appears on the respondent ' s pay roll of July 31 , 1937, and she is included in the list of
those who remained on strike at the time of the hearing
2513Y "net earnings" is meant earnings less expenses, such as for transportation, room,
and board ; incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the unlawful
refusal to reinstate him or the consequent necessity of his seeking employment elsewhere
See-Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Join-
ers of America, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L R B 440 Monies
received for work performed upon Federal , State, county , municipal , or other work -relief
8 :0 :2-41-vol 21--79
1238 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire
record in the case, including the aforesaid stipulation, the_ Board.
makes the following :
CONCLUSIONS OF LAW
1. United Shoe Workers of America is a labor organization; within
the meaning of Section 2 (5) of the Act.
2. 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-prac-
tices, within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
4. The respondent has not engaged in unfair labor practices,
within the meaning of Section 8 (3) and (5) of the Act.
5. Beckerman Shoe Corporation of Boyertown, a successor to the
ownership and business of the respondent's Boyertown plant, has
acquired that plant with notice of the pendency of this proceeding
and is obligated to remedy the aforesaid unfair labor, practices
engaged in by the respondent at that plant.
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, Beckerman Shoe Corporation of Kutztown, Kutztown;
Pennsylvania, and Beckerman Shoe Corporation of Boyertown,
Boyertown, Pennsylvania, and their officers, agents, successors, and
assigns shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing their employees in the exercise of the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing and other mutual aid and protection.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
projects are not considered as earnings, but as provided in the Order herein shall be de-
ducted from the sum due the employee, and the amount thereof shall be paid over to the
appropriate fiscal agency of the Federal, State, county, municipal, or other government or
governments which supplied the funds for said work-relief projects Republic Steel Cor-
poration, et at. V. National Labor Relations Boa? d, 107 F (2d) 472 (C C A. 3), enf'g as
mod , Matter of Republic Steel Corporation and Steel Workers Organizing Committee,
9 N L R B 219
BECKERMAN SHOE CORPORATION 1239
(a) Offer to Sallie Bartman, upon application, immediate and
full reinstatement to her former or a substantially equivalent posi-
tion at the Boyertown plant, without prejudice to her seniority and
other rights or privileges previously enjoyed by her;
(b) Make Sallie Bartman whole for any loss of pay she will. have
suffered-by reason of the respondent's and Beckerman Shoe Corpora-
tion of Boyertown's refusal to reinstate her following, the issuance
of this Order as required by paragraph 2 (a) of this Order, by the
payment to her of a sum of money equal to the amount which she
normally would have earned as wages during the period from 5 clays
after the date of her application for reinstatement to the date she
is offered reinstatement, less her net earnings 26 during said period;
provided that the respondent and Beckerman Shoe Corporation of
Boyertown shall deduct from the back pay due her a sum equal to
that received by her, if any, for work performed upon Federal, State,
county, municipal, or other work-relief projects during the period
for which back pay is due her under this Order, and shall pay any
such amount deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(c) Immediately post notices in conspicuous places throughout
their plants at Kutztown and Boyertown, Pennsylvania, and main-
tain such notices for a period of at least sixty (60) consecutive days,
stating that the respondent and Beckerman Shoe Corporation of
Boyertown will cease and desist in the manner set forth in paragraph
1 of this Order; and that the respondent and Beckerman Shoe Cor-
poration of Boyertown will take the affirmative action set forth
in paragraphs 2 (a) and (b) of this Order;
(d) Notify the Regional Director for the Fourth Region, in
writing, within ten (10) days from the date of this Order, what
steps the respondent and Beckerman Shoe Corporation of Boyertown
have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent discriminatorily
discharged John Houck and in so far as it alleges that the respondent
has engaged in unfair labor practices, within the meaning of Section
8 (5) of the National Labor Relations Act.
MR. WILLIAM M. LEISERSON took no part in the considerations • of
the above Decision and Order.
"See footnote 25, supra