Burk Brothers

National Labor Relations Board - Board Decisions

Mar 27, 1940

21 N.L.R.B. 1281 (N.L.R.B. 1940)

In the Matter of BIIRK BROTHERS and LOCAL #30, NATIONAL LEATHER
WORKERS' ASSOCIATION
Case No. C-1210.-Decided March 27, 1940
Leather Manufacturing Industry-Iaterfcrence, Restraint, and Coercion: anti-
union statemgnts ; interference with organizational activities of employees ;
expressed opposition to labor organization, threat of retaliatory action ; dis-
crediting union-Discrimination: allegations of discharge and refusal to rein-
state four employees because of their union membership and activity, sus-
tamed-Reinstatement Ordered: of two employees not already reinstated by
employer-Back Pay: awarded ; as to two employees from date of discharge to
date of reinstatement already effected by employer; as to one employee from
date of discharge to date of Intermediate Report and from date of Order to
date of offer of reinstatement; as to one employee, from date of discharge to
date of Intermediate Report and from date thereafter on which position in-
glazing department became available, or from date of Order whichever is the
earlier, to date of offer of reinstatement.
Mr. Geoffrey J. Cwnni ff, for the Board.
Mr. Walter T. Fahy, of Philadelphia , Pa., for the respondent.
Mr. William F . Reagan , of Peabody , Mass., for the Union.
Mr. Frederick W. Killian, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon- charges and amended charges duly filed by Local #30,
National Leather Workers' Association, herein called the Union, the
-National Labor Relations Board, herein called the Board, by the
Regional Director for the Fourth Region (Philadelphia, Pennsyl-
vania), issued its complaint, dated May 28, 1938, against Burk
Brothers, Philadelphia, 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) 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, accompanied by notice of hearing, were duly served
upon the. respondent and the Union.
21 N. L R. B.. No. 126.
1281
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In so far as is here material, the complaint, in addition to juris-
dictional allegations, alleged that the respondent (1) had discrim-
inatorily terminated the employment of Joseph Zalot, Kosta Kula,
Charles Majerick and Frank Majerick and thereafter refused to
reinstate them because they joined and assisted the Union and en-
gaged in concerted activities for the purpose of collective bargaining
and other mutual aid and protection, thereby discouraging mem-
bership in the Union; and (2) by the foregoing and other acts had
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
The respondent filed an answer dated Time 6, 1938, in which it
admitted the allegations of the complaint concerning the nature of its
business, denied that it had engaged in the alleged unfair labor prac-
tices, admitted that it had terminated the employment of Zalot and
Charles Majerick and thereafter refused to reinstate them, and as-
serted that Kula and Frank Majerick were not discharged, but were
laid off in order of seniority due to curtailment of production and
were told that they would be sent for with any increase in production.
On June 30, 1938, the Regional Director issued a notice postponing
iintil further notice the hearing originally scheduled for July 7, 1938.
Pursuant to notice of hearing dated December 10, 1938, which was
duly served upon the respondent and the Union, a hearing was held
at Philadelphia, Pennsylvania, on January 5 and 6, 1939, before Peter
F. Ward, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel and partici-
pated in the hearing. The Union appeared by counsel and was
represented throughout the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties.
During the course of the hearing the Trial Examiner made various
rulings on motions and on objections to the admission of evidence.
The Board has reviewed these rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
The record shows that shortly before.the hearing, on December 8,
1938, the respondent reinstated Kula and Zalot without back pay, and
offered to reinstate Frank Majerick to a job requiring less skill and
at a lower rate of pay than his former position. Majerick did not
accept the offer, and was not reinstated. The respondent contended
at the hearing that the Regional Director and the Union agreed that
if the respondent would offer Kula, Zalot, and Frank Majerick rein-
statement to any positions in the plant, without back pay, the entire
proceeding would be dismissed. We find no merit in this contention.
It is true that ordinarily the Board will not interfere with a settle-
BURK BROTHERS 1283
anent or agreement between an employer and a union which effectuates
the policies of the Act, particularly if the agreement is concluded with
the safeguard of the presence of a governmental representative.'
Here, however, the evidence shows that, although there were negotia-
tions between the respondent, the Union, and the Regional Director
with a view to a disposition of the issues involved in the proceeding,
neither the Union nor the Regional Director agreed to accept the
action taken by the respondent as set forth above as a settlement of
the case.
On December 2, 1938, prior to the reinstatement of the two men
in question, the Regional Director wrote a letter to the respondent
stating in effect that the Union would not agree to withdraw its
charges "unless reinstatement with back pay is offered to all the four
men involved," and that "it will now be necessary to arrange for a
hearing." In addition, at the same time that Zalot and Kula were
reinstated on December 8, 1938, the respondent received a letter
from the Union stating that, by returning to work, Kula and Zalot
"do not, under any circumstances, waive any rights or benefits which
they may receive through the Wagner Act." In view of these facts,
we find that the offer of reinstatement to three of the four employees
involved herein under the terms presented to them by the respondent
was not deemed by the parties herein to constitute a final settlement
of the case, and consequently cannot be treated as such by the Board.
On March 3. 1939, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all parties, in which
he found that the respondent by discharging and refusing to employ
Kula and Zalot for a specified period, after which they were re-
instated, and by interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of
the Act, had engaged in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (3) and Section 2 (6)
and (7) of the Act, and that by discharging and refusing to em-
ploy Charles Majerick and by laying off Frank Majerick the
respondent had not engaged in unfair labor practices within the
meaning of the Act. He recommended that the respondent cease
and desist from its unfair labor practices, make whole Kula and
Zalot for any loss of pay they may have suffered by reason of the
respondent's discrimination against them from the date of their
discharge to the date of their reinstatement by the respondent, and
place Frank Majerick upon a preferred list to be offered employ-
ment in the glazing department of the respondent's plant, whenever
' See Matter of Shenandoah -Dives Min,ng Company and International Union of Mine,
Mall and Smelter Workers, Local No 26,, 11 N L R B 885; and Matter of Ingram
Manufacturing Company and Textile Workers Organizing Committee , 5 N L R B 908
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a vacancy occurred or additional glazers were employed. He
further recommended that the complaint be dismissed as to Charles
Majerick and Frank Majerick.
Exceptions to the Intermediate Report were filed by the respond-
ent on March 13, 1939, and by the Union on March 18, 1939. The
respondent and the Union filed briefs which the Board has
considered.
On April 28, 1939, the Union filed a "Motion to Reopen the Record
and Receive Further Evidence," and requested opportunity for oral
argument on said motion. On May 24, 1939, the Board denied the
motion and the request for oral argument on the motion.
On October 24, 1939, a hearing was held before the Board in
Washington, D. C., for the purpose of oral argument on exceptions
to the Intermediate Report and the record. The respondent and
the Union were represented by counsel and participated in the oral
argument. - The Board has considered all the exceptions to the
Intermediate Report and hereby overrules the respondent's ex-
ceptions and sustains the Union's exceptions.
On January 26, 1939, the respondent sent to the Trial Examiner
certain sworn copies of its pay rolls of June 24, August 5, October 7,
December 9, 1937, and January 27, 1938. The Trial Examiner "re-
ceived and considered" these pay roils. The respondent in its letter
sending the pay rolls to the Trial Examiner stated that copies thereof
were being sent to attorney for the Board and to the attorney for
Local #30. We hereby direct the filing herein instanter of said
pay rolls as Respondent's Exhibits 12a to 12e, respectively.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE 13USINESS OF THE RESPONDENT
The respondent is a Pennsylvania corporation organized in 1908,
having its principal place of business in Philadelphia, Pennsylvania.
It is engaged in the manufacture, sale, and distribution of leather.
The principal raw material used by the respondent in its production
is goatskins, all of which are imported into Pennsylvania from
India. The value of the skins imported annually is approximately
$1,094,475. About 92 per cent of respondent's finished products are
shipped from Pennsylvania to other States of the United States.
In 1937 the total sales of the respondent's finished products aggre-
gated $1,652,000.02 in value. In a normal year, the respondent
employs approximately 285 employees and its pay roll amounts
to $486,614.
BURK BROTHERS 1285
The respondent admits that it is engaged in interstate commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Local #30, National Leather Workers' Association, is a labor organ-
ization affiliated with the Congress of Industrial Organizations and
admits to membership all production and maintenance workers em-
ployed in tanneries in Philadelphia, except foremen and salaried
workers.
111. THE UNFAIR LABOR PRACTICES
A. Interfer•e'nce, resti -aint, and coercion
In the latter part of April 1937, the Union launched a drive to
organize the respondent's employees. In this the Union received
active assistance from a number of the respondent's employees, chief
of whom were the four employees whose discharges are discussed
below. These employees, Kosta Kula, Joseph Zalot, Charles Majerick,
and Frank Majerick, distributed union literature and solicited mem-
bership among the employees of their respective departments. As
a result of their efforts, the Union met with considerable success in its
organizational efforts and by July 1937 had attained a membership
of 125 of the respondent's 285 employees.
Immediately upon learning of the advent of the Union, the respond-
ent began to express its opposition to the Union and to warn its
employees against joining or remaining members of that organization.
Emerick Pio, an employee of the respondent, testified- that during
the period in question he informed Fred Miller, his foreman, that the
Union was organizing the respondent's employees, and that Miller
stated in the presence of Pio and Michael Adamski, another employee,
"All' those men that belong to the C. I. O. is (sic) going to be laid
off." 'Miller denied that he-made the above statement and,Adalnski
testified that he could not "recall" that such statement was made "in
my presence or anybody else's." Basing his findings on his observa-
tion of the witnesses, the Trial Examiner found that Miller, spoke in
the terms attributed to him by Pio. In view of his finding, we accept
as true Pio's testimony in this respect.
At about the same time, on July 26, Miller approached Elwood
Pierce, an employee who worked alongside of Charles Majerick, an
active union member, spoke to Pierce regarding Majerick's union
activities, and inquired whether or not Majerick had solicited Pierce
to join the Union. Immediately after Miller left Pierce, the latter
turned to Majerick and, according to Majerick, stated, "Watch your-
283032-I1-col 21-82
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self, Miller knows you are in the Union; he asked me if you tried to
get me to join the Union and I told him no." Pierce, who testified
under a subpoena issued by the Board, proved to be a reluctant and
evasive witness. He admitted, however, that after Miller had spoken
to him concerning Majerick's union activities, he turned to Majerick
and told him to "keep his mouth shut." Although the exact context
of Miller's statement to Pierce is in doubt, the fact that Pierce was
induced by it to warn Majerick in the manner set forth above indi-
cated that the tenor of the statement was such as to reveal that Miller
was displeased with Majerick's solicitation of membership in and
other activities on behalf of the Union.
In June 1937 another incident occurred which further disclosed
Miller's opposition to the Union. On that occasion, Miller entered
the respondent's stockroom where a number of the employees were
having lunch and found them reading a union leaflet, which they had
just received from a union organizer. Miller took possession of the
leaflet, destroyed it, and stated, "Them guys outside giving the leaflets
out, they are the fellows looking for easy money, they don't want to
work."
Sometime in the same month, William Hascher, a foreman, engaged
Joseph Zalot in a conversation concerning the Union, during the
course of which Hascher stated, "The C. I. O. is no good for anybody,
especially for the Burk men."
Also, in June 1937, John Zalot, an assistant foreman, spoke to
Joseph Zalot, his son, concerning the latter's union activities. During
the conversation John Zalot stated that John Yale, a foreman, told
him that Joseph Zalot and another employee were "raising hell about
the C. I. O." John Zalot then warned his son to "keep his mouth
shut or he would be kicked out." On about the same date, John
Zalot spoke to Helen Litzner, the mother-in-law of Joseph Zalot, with
respect to the latter's activities in behalf of the Union. On this
occasion, John Zalot stated that "Joe is supposed to be laid off on
account of talking too much about the C. I. O."
From the above facts it is plain that the respondent opposed the
Union's efforts to organize its employees, and that the respondent im-
plemented that opposition by repeatedly warning employees that they
would be laid off or discharged because of their union membership and
activity. This campaign of coercion and restraint was conducted by
a number of supervisory employees, foremost among whom were Fred
Miller, William Hascher, and John Zalot. Miller and Hascher were
foremen with complete authority over the employees in their respec-
tive departments, including the authority to hire and discharge. John
Zalot was an assistant foreman who, although he had no authority to
hire or discharge employees, exercised managerial functions, including
BURL BROTHERS 1287
the assignment and supervision of the work of a number of employees.
Under the circumstances the respondent must be deemed answerable
for the conduct of the above supervisory employees in their relations
with the ordinary employees.'
In addition to the conduct discussed above, the respondent, as set
forth below, discharged four union members because of their leader-
ship u1 the union's campaign. The effectiveness of these discharges
and the conduct described herein in combating the Union is shown by
the fact that the Union's membership declined from 125 in June to
about 7 at the time of the hearing.
We find by the above acts the respondent has interfered with,
restrained, and coerced,its employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
B. The discharges
lit June 1937 production at, the respondent's plant began to decline,
with the result that by the following November the respondent's out-
put had fallen about 40 per cent below its original figure. During the
same time the respondent laid off between 75 and 88 of its-employees.
These lay-offs were not made simultaneously, but were effectuated at
successive intervals from June 1937 to January 1938. This manner of
reducing the respondent's force was due (1) to the fact that the cur-
tailment of production was manifested by a steady decline rather than
an abrupt drop from one production level to another; and, (2) to the
fact that the tanning operation at the respondent's plant consists of
several separate and distinct but successive processes, each of which is
performed by a separate department and all of which together require
considerable time for completion. As a consequence of this second
factor, the effects of a curtailment in reduction at the respondent's
plant are felt in succession by each department in accordance with the
functional relationship of that department to the entire process. Ac-
cordingly the first lay-offs in the present case were made in the beam
room, the department where the operation begins, followed in order
by the tan house, coloring room, staking department, perching depart-
ment, seasoning -department, and lastly the finishing and burnishing
department where the operation is finally completed.
It does not appear how many or what proportion of the employees
laid off during this period were members of the Union. And, although
it coincided closely with the advent of the Union, it is not claimed, nor
z See International Association of Machinists , Tool and Die Makeis Lodge No 15, affili-
ated with the International Association of Machinists, and Production Lodge No 1200,
affiliated with the Interaational Association of Machinists v N L R B , 311 U S 72
IC A for D C ), aff'g Matter of The Scrricl, Corporation and International Unnion.
United Automobile Workers of America , Local No 1159, 8 N L R B 621
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has any attempt been made to show, that the reduction in the respond-
ent's force was made for any reason other than a bona fide slump in
the respondent' s business . The issue presented here is whether or not
the respondent utilized the legitimate reduction of its force to rid
itself of Kosta Kula, Joseph Zalot, Charles Majerick, and Frank
Majerick, the four leading figures in the Union, by selecting them for
release on a discriminatory basis.
In considering the question, it is important to note two important
facts relating to the lay-off policy of the respondent. The first is that,
in contrast to its treatment of discharged employees who are paid in
full immediately upon discharge, it is the practice of the respondent
to refrain from paying employees who are laid off due to curtailed pro-
duction until the regular pay day, Friday, at which time they receive
their wages together with the remaining employees. And the second
and even more significant fact is that in selecting employees for release
pursuant to a legitimate reduction in force, it is admittedly the policy
of the respondent to effectuate such lay-offs on the basis of depart-
mental seniority.
Joseph Zalot was first employed by the respondent in 1926. There-
after, he was laid off on several occasions but was always reinstated,
his last continuous term of employment by the respondent beginning
in 1935 and ending on June 28, 1937. At the time of his release Zalot
was employed as a general laborer in the respondent's tan house.
Zalot joined the Union in June 1937 and, as we have already stated,
was one of its most active members. He solicited union membership
in his department and succeeded in obtaining a number of members for
that organization.
We have already seen that, in June 1937, John Zalot, a supervisory
employee, told Joseph Zalot that John Yale, foreman of the tan house,
had spoken to him about Joseph Zalot 's union activities, and, at the
same time, warned the latter to "keep his mouth shut" or the would
"get`kicked out." We have also seen that John Zalot spoke-in similar
terms to Helen Litzner, mother-in-law of Joseph Zalot, stating that
Joseph Zalot was "supposed to be laid off on account of talking too
much about the C. I. O."
On Monday, June 28, 1937, about three days after the above incidents
occurred, Yale approached Zalot and stated, "I am laying you off."
At the same time Yale handed Zalot a check for his wages up to that
date. Zalot then asked why he was being released, stating that he had
4'seniority over at least seven fellows in there." Yale did not deny that
claim, but merely replied, "I am the boss around here, and can lay off
anybody I want to." Zalot then left bhe;plant.
Shortly after the termination of his employment, Zalot went to John
Zalot, the assistant foreman, and asked if there was any likelihood that
BURK BROTHERS 1289
he might be reinstated. John Zalot replied, "You will never get back
in there." When Joseph Zalot insisted that he be told the reason for
the respondent's attitude toward him, John Zalot stated, "You got a
big mouth and you talk too much about the C. I. 0."
In its answer the respondent admitted that it discharged Joseph
Zalot but denied that such action was motivated by his union activity.
At the hearing, Yale, the foreman who dismissed Zalot, testified that
Zalot was not a satisfactory worker because'he reported to work intoxi-
cated on several occasions and sometimes remained away from the
plant for a considerable time without obtaining leave. He further
testified that he had "fired" Zalot on two occasions for those reasons.
On cross-examination, however, Yale stated that such disciplinary
action had been taken five or six years before Zalot's last release, and
admitted that Zalot had done nothing during his last continuous term
of employment to merit his discharge.
Yale testified that Zalot was not discharged but was laid off because
of slack work. However, as we have found above, at the time of
the termination of his employment Zalot told Yale that he was senior
to "at least seven" employees, and Yale did not then deny the claim.
Zalot reaffirmed his claim at the hearing, and gave the names of six
persons over whom he claimed seniority. Although the respondent
admitted at the hearing that it kept a record of the seniority of each
of its employees, it did not submit that record in evidence to refute
Zalot's testimony in this regard. In view of its failure to introduce
such record in evidence or to offer any other evidence pertaining to
the seniority of Zalot in relation to those employees over whom he
claimed seniority, we find that Zalot had greater seniority than a
number of employees who were retained after his release.
From the above facts it is plain that Zalot was discharged because
of his prominence in the Union. Although the respondent admitted
in its answer that Zalot was discharged, it claimed at the hearing that
he was not discharged but merely "laid off" because of the curtail-
ment of production. However, the record shows that such was not
the case. We have already seen that it is normally the policy of
the respondent in making a reduction in staff due to slack production
to select employees for lay-off on the basis of seniority. We have
also seen that in making such lay-offs as distinguished from a dis-
charge, the respondent's practice is not to pay such employees when
they are released but to give them their wages on Friday, which is
the regular pay day. In the case of Zalot, the respondent not only
gave him his wages at the time of his release as is customary in cases
of outright discharge, but also deviated from its seniority rule and
dismissed Zalot while retaining other employees with less seniority
than he. Since the respondent has offered no explanation for its
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory treatment of Zalot in this respect, we are led to
believe that the reduction in force was not the real reason for Zalot's
release, but was seized upon by the respondent as a pretext for dis-
charging Zalot because of his union activity.
It is likewise plain that Zalot's alleged unsatisfactory work did not
influence his discharge, since Yale, himself, admitted that Zalot had
done nothing during his last continuous term of employment to merit
his discharge.
We find that the respondent, by discharging Joseph Zalot on
June 28, 1937, has discriminated in regard to the hire and tenure of
his employment, thereby discouraging membership in the Union.
We further find that by such discharge the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
At the time of his discharge Zalot was earning $20.50 a week. Zalot
was reinstated at the same weekly salary by the respondent on
December 8, 1938, as a result of the negotiations already referred to
between the respondent and the Regional Director. Between the
date of his discharge and his reinstatement, Zalot was unemployed.
During that period, he received $305 in relief payments and $60.50 in
unemployment compensation.
Kosta Kula was first employed by the respondent in 1915 and,
except for occasional lay-offs due to slack periods, worked for the
respondent until the termination of his employment on December 14,
1937. At the time of his release Kula was employed in the tan house.
Kula joined the Union in June 1937 and, as we have pointed out
in subsection A above, assumed a leading role in its drive to organize
the respondent's employees. Being of Albanian descent, and having
a knowledge of that language, his services were utilized with particu-
lar effectiveness in soliciting membership among the Albanians, a
considerable number of whom were employed at the respondent's
plant. As a result of his efforts, several of them joined the Union.
On Tuesday, December 14, 1937, John Yale, foreman of the -tan
house, approached Kula, who was changing his clothing preparatory
to leaving the plant, and stated, "Kosta, I am going to lay you off."
He then gave Kula his pay in full. According to Kula, Yale told
him at that time not to "get mad," that he (Yale) was not responsible
for the lay-off, but that "the office is laying you off on account of
the Union." Yale denied making the above statement. The Trial
Examiner, who heard the testimony and had an opportunity to
observe the demeanor of the witnesses on the stand, found that Yale
spoke in the terms set forth above. In view of his finding, we accept
as true Kula's testimony concerning this incident.
BURK BROTHERS 1291
On the same clay, Kula discussed his dismissal with Harry Shaak,
fbreh'ian of the beam house. During the conversation Shaak stated,
-'Why do you belong to the Union? Why don't you come to me for
a couple of dollars raise? You are going to get nothing out of the
Union."
Yale testified that Kula was not discharged but was laid off because
of slack production. However, Kula testified that he had seniority
over Nick Drobonik , an employee who was retained after his "lay
off." Yale did not deny this testimony , nor did the respondent intro-
duce its seniority list in evidence in an attempt to refute Kula's
claim. Consequently , we find that Drobonik had less seniority than
Kula and that he was retained after Kula's employment had been
terminated.
As stated below, Kula was reinstated by the respondent on Decem-
ber 8, 1938. Prior to that time the respondent recalled two employees,
Petro Ndrecka and Henry Andrea, to work in Kula's department.
Yale admitted at the hearing that both of these employees had less
seniority than Kula, and that , according to the respondent 's policy
in such matters , Kula should have been reinstated before them. He
stated that they were recalled before - Kula for the reason that he
could not find Kula at the time. He admitted, however, that the
respondent keeps a record of the addresses of the employees and that
he made no attempt to locate Kula by referring to that record or in
any other manner.
From - the above facts, it is plain that the respondent discharged
Kula because of his prominence in the Union . The respondent's
claim that he was not discharged but merely laid off pursuant to a
legitimate reduction in force is not supported by the evidence. In
addition to the fact that Kula, like Zalot, was given his pay in full
at the time of his release and the fact that such release was not made
on the basis of seniority , Yale, the foreman who dismissed Kula,
told him that his employment was being terminated "on account
of the Union ." These circumstances negative the respondent's con-
tention and , together with the other circumstances pertaining to
Kula's dismissal , convince us that the respondent made use of its
reduction in force to terminate Kula's employment because of his
leadership in the Union . This conclusion finds support in the fact
that subsequent to his dismissal the respondent , without making any
effort to locate Kula and offer him reinstatement , reinstated two
other employees who admittedly had less seniority than Kula.
We find that the respondent , by discharging Kosta Kula on De-
cember 14 , 1937, has discriminated in regard to the hire and tenure
of his employment , thereby discouraging membership in the Union.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We further find that by such discharge the respondent has interfered
with, restrained , and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
At the time of his discharge , Kula was earning $20.50 a week. He
was reinstated at the same weekly wage by the respondent on De-
cember 8, 1938 , as a result of the negotiations already referred to
between the respondent and the Regional Director . Between his
discharge and his reinstatement , Kula was unemployed . During
that time , he earned about $60 selling "snowballs," and in addition
received approximately $123 in relief payments and unemployment
compensation.
Charles Majerick 8 was first employed by the respondent in Febru-
ary 1934, and , except for a lay-off of several months during that
year, worked for the respondent until his release on August 2, 1937.
During most of his employment and at the time of his dismissal,
Majerick was employed in the finishing and burnishing department.
Majerick joined the Union in June 1937 and became its most ac-
tive and successful organizer among the respondent 's employees. He
secured at least 38 members for the Union, and about five days be-
fore his dismissal was awarded a prize at a general meeting of the
Union for having obtained the most union members during the
month of July.
In about the middle of June 1937 , Majerick, who was then .work-
ing in the burnishing department , was transferred to the suede de-
partment , where he worked under the supervision of Max Lehman,
as assistant foreman. On Jlme 22 Maj erick and Lehman engaged in
an argument concerning the operation of Majerick 's machine. Dur-
ing the altercation Majerick made a number of derogatory and
obscene remarks to Lehman.
Immediately after this argument , Lehman reported the matter to
Henry Fitzpatrick, the respondent 's superintendent , and to Fred
Miller, foreman of the burnishing department . The latter told Leh-
man that Majerick, who is 23 years of age, was "only a kid with
school boy ideas," and promised Lehman that Majerick would be re-
moved from the suede department and returned to his former posi-
tion in the burnishing department the following day. On that same
clay, according to Miller, Henry Fitzpatrick ordered him to discharge
Majerick. Despite this alleged order , however, Miller did not dis-
miss Majerick but ordered him to return to the burnishing depart-
ment, where he remained for several weeks prior to the termination
of his employment. Miller testified that he did not dismiss Majerick
8 Both Charles Majerick and Frank Maierick , whose discharge is discussed below,
appear on the respondent's pay roll under the name of Mayarick
BURK BROTHERS 1293
at that time because of his friendship with the latter's father and
because he knew that the curtailment of production would soon re-
quire him to lay off a number of employees, including Majerick.
On July 26, 1937, as we have stated in subsection A above, Miller
asked Elwood Pierce, an employee working beside Majerick whether
or not the latter had asked Pierce to join the Union, and spoke to
Pierce in such a manner as to lead Pierce to warn Majerick to "keep
his mouth shut." Also, on July 28, the day after Majerick received
the award for having obtained the most union members during July,
Miller sharply reprimanded Majerick for speaking to Barney Le-
wandoski, another employee, although it had not been his practice
to rebuke employees for talking to one another.
Shortly thereafter, on Monday, August 2, 1937, Miller approached
Majerick and said, "Hey you, I have got to make room for some-
body else." He then handed Majerick his pay in full. Majerick
inquired why he was being released, and Miller replied, "Maybe, it
was the argument you had upstairs."
In its answer the respondent admitted that it discharged Majerick,
but denied that such dismissal was motivated by his union activity.
At the hearing, A. L. Fitzpatrick, the respondent's president, stated
that Majerick was discharged because of his quarrel with Max'
Lehman on June 22. His testimony in this regard is contradicted,
however, by the fact that Majerick was transferred to another de-
partment at that time and by a letter dated August 16, 1937, from
the respondent to the Regional Director which states that Majerick
was laid off because of lack of work. Similarly, Miller, although
his testimony on this point is somewhat confused and self-contradic-
tory, finally stated that "Majerick was laid off for the same reason
that the rest were laid off. We had no work for him."
Majerick testified that about 10 or 12 employees with less seniority
than he had were retained in his department after his release, and
named 9 employees who, according to his testimony, were in that
group, giving the approximate date when each of them was first
employed by the respondent. Although Miller testified that Majerick
was "laid off" in accordance with seniority, he admitted he was
unable to say whether or not any of the 9 employees referred to by
Majerick were laid off before Majerick "until (he obtained) the
records." Since no "records" were introduced in evidence to refute
Majerick's testimony in this regard, we find that several employees
in Majerick's department with less seniority than he had were re-
tained after the termination of his employment.
Sometime in October 1938, the respondent sent a message to Frank
Majerick, whose discharge is discussed below, asking him to report
at the respondent's office. The message was delivered by mistake to
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Majerick. The latter thereupon appeared at the plant.
When he arrived there he was seen by Miller, who asked what
Majerick was doing there and said, "You will never get back to
work here."
It is plain that Majerick's prominence in the Union and not his
dispute with Lehman was the real reason for his discharge. When
the Lehman affair was brought to the attention of Miller, who was
Majerick's foreman, he made light of it, referring to Majerick as
"only a kid with school boy ideas." Instead of discharging Majerick,
Miller then transferred him to his original job in the burnishing
department. Miller's testimony indicates that he considered this
transfer to constitute a final disposition of the matter, and the fact
that Majerick was retained in the respondent's employ for more than
a month thereafter supports this conclusion. We are not impressed
by the testimony to the effect that Henry Fitzpatrick, the respond-
ent's superintendent, told Miller to discharge Majerick because of
the incident. If such order were given, it is obvious that Miller had
no intention of obeying it, since he, himself, testified that he decided
to retain Majerick until he could be laid off in accordance with
seniority. In view of the fact that the respondent's foremen are
given a free hand in the conduct of their respective departments,
we may reasonably infer that Miller did not regard Fitzpatrick's
alleged statement as anything more than advice which he was free to
and, in fact, did disregard.
At the hearing, Miller apparently took the position that Majerick
was laid off because of the reduction of force. In view of the fact
that he was paid in full at the time of his release together with the
fact that about 10 employees with less seniority than Majerick were
retained after Majerick was dismissed, we are convinced that the
reduction of force was not the real reason for his dismissal. We
are confirmed in that belief by the fact that in October 1938, Miller
told Majerick that he would "never get back to work" at the respond-
ent's plant.
The record shows that prior to, and for some time after the dispute
between Majerick and Lehman, Miller was on friendly terms with
Majerick and frequently engaged in conversation with him on a
variety of topics. In about July, however, his attitude toward
Majerick underwent a sharp change, and after about July 26, Miller
did not speak to Majerick in the line of duty or otherwise until his
dismissal. In addition, we have already seen that at about this
time Miller questioned Elwood Pierce concerning Majerick's union
activity in such a manner as to lead Pierce to warn Majerick to keep
his mouth shut, and that Miller once reprimanded Majerick for
talking to another employee, although he had previously permitted
BURK BROTHERS 1295
employees to talk to one another during working hours. In sub-
section A above, we have found that Miller opposed the advent of
the Union and threatened to discharge its members. In view of
his hostility toward the Union, together with the fact that his dislike
for Majerick coincide with the latter's rise to prominence in the
Union, we are persuaded that Majerick's leadership in the Union
afforded the cause for Miller's antagonism toward him and that such
antagonism was the real reason for his discharge.
We find that the respondent, by discharging Charles Majerick on
August 2, 1937, has discriminated in regard to the hire and tenure
of his employment, thereby discouraging membership in the Union.
We further find that by such discharge the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
From May 1938 to the date of the hearing, Majerick was employed
by the Union as secretary-treasurer at a salary of $20 a week. He
has earned no additional money.
Frank Majerick, who is the father of Charles Majerick, was first
employed by the respondent in 1907 and worked until 1911, at which
time he left the respondent's employ. He was reemployed by the
respondent in 1928 and worked without interruption until the termi-
nation of his employment on January 28, 1938. During this time
he was employed as a glazer in the glazing and burnishing depart-
ment.
Majerick joined the Union in June 1937 and thereafter became
one of its most active members. He was one of the few employees
who wore union buttons at the plant and, in addition, succeeded in
securing 9 union members in his department.
On Friday, January 28, 1938, Fred Miller, the foreman, approached
Majerick, handed him his pay check and stated "You are laid off."
Majerick testified that Miller also said at that time, "Let the C. I. O.
take care of you." Miller denied that he made the latter statement,
and testified that he told Majerick that he was being "laid off"
because of lack of work. In view of the fact that Miller's version
of his conversation with Majerick is supported by the testimony of
a number of the employees who were present at the time, we accept
as true Miller's testimony concerning his statements to Majerick
on this occasion.
The respondent states in its answer and Miller testified that Maj-
erick was laid off because of the curtailment of production and in
accordance with seniority. On the other hand, Majerick testified
that two employees, John Miller and an employee named Mitas,
who were retained in his department after his release, had less
seniority than he had.
1296 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
One of these employees, John Miller, was first employed by 'the
respondent in 1934 as a glazer in the burnishing and finishing de-
partment and admittedly had less seniority than Majerick. However,
John Miller is a son of Fred Miller, the foreman, and according to
the latter, was employed for the purpose of learning the operations,
of the department with a view to' eventually succeeding his father
as head of the department. At the hearing, A. L. Fitzpatrick, the
respondent's president, stated at the time of Majerick's lay-off, he
did not know that John Miller was in the respondent's employ,
explaining his ignorance of the matter with the statement that "even
Homer nods."
Mitas, the other employee retained in Majerick's department and
over whom he claims seniority, was first employed by the respondent
in about 1910. He worked at the respondent's plant until 1917, at
which time he left the plant to serve in the Army overseas. In 1919
he returned to the respondent's employ. On this occasion, the re-
spondent, in recognition of his services abroad, permitted him to
retain the seniority which he had accrued prior to his departure in
1917. In about January 1934, Mitas was released by the respondent
because of slack work, and was not again employed by the respondent
until March 22, 1937. During this long absence from the respond-
ent's plant Mitas worked for at least one other private concern and,
in addition, was employed for a time by W. P. A. Although he
admitted that Mitas was laid off by the respondent on that occasion
because of lack of work, Miller testified that Mitas' seniority was
not impaired by his lay-off because he had granted Mitas a "leave
of absence," and consequently that the latter had greater seniority
than Majerick.
We think it clear that, at the time of Majerick's release, his sen-
iority was known by the respondent to be greater than that of Mitas.
The special circumstances which led the respondent to permit Mitas
to retain his seniority rights during his absence from 1917 to 1919
were not present at the time of his absence from 1934 to 1937. Nor
is it claimed that, because of his service overseas, Mitas was granted
perpetual exemption from the application of the seniority rule. The
fact that he was laid off in 1934 because of curtailed production, while
Majerick was retained from 1928 to 1937, tends to refute any such
contention. Likewise, we are unable to believe that Mitas was on
leave of absence from January 1934 to March 1937. The fact that
he was released because of lack of work, his long absence from the
plant, and his employment during his absence by another firm and
by W. P. A. together indicate that the so-called "leave of absence"
was in reality a complete severance of employment which extin-
giiished Mitas' seniority rights up to that date.
BURK BROTHERS 1297
Our conclusion in this regard is- supported by an incident which
occurred or February 16, 1938. On that date Majerick approached
A. L. Fitzpatrick and applied for reinstatement. During the conver-
sation Fitzpatrick stated that employees were laid off and reinstated
according to seniority. Majerick then inquired why John Miller
and Mitas, who had less seniority than he had, were then working
at the plant. Fitzpatrick thereupon sent for Fred Miller and in-
quired whether Mitas had been away from the plant in 1934. Miller
replied, "Yes, he was out for about a couple of months." Majerick
then said, "Why, Mr. Miller, this man was working in the Quaker
City Leather Plant and also on the W. P. A." Miller thereupon
became embarrassed and finally admitted that both Mitas and his
son, John Miller, had'le'ss "seniority than Majerick.
In view of the above facts, we are convinced that the respondent
discharged Frank Majerick because of his leadership in the Union's
organizing campaign. In subsection A above, we have stated facts
indicating that the respondent opposed the entry of the Union into
its plant and that the respondent warned its employees that it would
discharge employees who joined that organization. Following that
threat, the respondent, under cover of a bona fide reduction of force,
dismissed, in succession the employees who constituted" the spearhead
of the Union's drive, Joseph Zalot, Charles Majerick, Kosta Kula,
and finally Frank Majerick. We have considered the cases of Zalot,
Charles Majerick, and Kula, and found that in each case the respond-
ent utilized its reduction in force or other pretexts to discharge them
on a discriminatory basis. We are persuaded that the dismissal of
Frank Majerick was but the final step 'in the respondent's concerted
attempt to destroy the Union by the systematic elimination of its
leaders.
Here again the respondent claims that Majerick was not discharged
but merely laid off because of the curtailment of production. It is
plain, however, that such was not the case. As was true of the
other three union leaders discharged by the respondent, Majerick
had seniority over employees who were retained in his department
after his release. John Miller, one of the two employees to whom
he was senior, is the son of Fred Miller, foreman of the department,
and we are of the opinion that the kinship between the two was
the basis for the conduct. of the foreman in exempting John Miller
from the operation, of the seniority rule. However, no such reason
appears in the case of Mitas, the other employee. True, Fred Miller
attempted to demonstrate that Mitas was senior in service to Ma-
jerick by stating that his three-year absence from the respondent's
employ, during which he worked at other jobs, was a mere "leave
of absence" which did not extinguish his seniority rights. For rea-
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sons which we have already stated we believe that no such leave of
absence was granted and that Mitas was known by the respondent
to have less seniority than Majerick, who was steadily employed by
the respondent during the time that Mitas was away from the plant.
Also,. Miller admitted at the hearing that Mitas was laid off in 1934
because of slack work,, and since Majerick was retained in prefer-
ence to him at that time, it would appear that, having accumulated
three years of additional seniority during Mitas' absence, Majerick,
a fortiori, should have been preferred to Mitas at the time of the
"lay off" here in question. In view of its admitted policy of making
lay-offs on the basis of seniority, the respondent's disregard of
Majerick's clear seniority over Mites in this case must be deemed to
constitute discrimination against him because of his union activities.
We find that the respondent, by discharging Frank Majerick on
January 28, 1938, has discriminated in regard to the hire and tenure
of his employment, thereby discouraging membership in the Union.
We further find that by such discharge the respondent has inter-
fered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Prior to his discharge, Majerick, who was employed as a glazer,
was earning between, $31 and $32 a week. Sometime in October
1938, the respondent offered Majerick a position as a common laborer
at which he would be able to earn about $20 per week. Majerick
told the respondent that he would accept the position if the re-
spondent would agree in writing to reinstate him to his former posi-
tion when it became available. The respondent refused, and Ma-
jerick in turn refused the job which he had been offered. Since
the job offered Majerick was less skilled and less remunerative than
his former position, we find that his refusal to accept the job offered
him in no wise mitigates the consequences of the respondent's discrim-
ination against him. Between his discharge and the-hearing, Ma-
jerick earned $45 playing in an orchestra, $23.92 working-in- a post
office, and has received $195 in unemployment compensation. At the
time of the hearing, he had no regular employment. He wishes to
be reinstated.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed 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 com-
merce and the free flow of commerce.
BURK BROTHERS
V. THE REMEDY
1299
Having found that the respondent has engaged in certain unfair
labor practices , we shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act, and to restore as nearly as possible the conditions which
existed prior to the commission of the unfair labor practices.
We have found that the respondent discriminatorily discharged
Joseph Zalot , Kosta Kula, Charles Majerick, and Frank Majerick.
Joseph Zalot and Kosta Kula were reinstated by the respondent on
December 8, 1938, without back pay. Accordingly , we shall order
the respondent to offer Frank Majerick and Charles Majerick rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges. We
shall further order the respondent to make whole Joseph Zalot, Kosta
Kula, Charles Majerick , and Frank Majerick for any loss of pay
they have differed by reason of their discharges :, by payment to
Zalot and Kula of a sulll of money equal to the amount which each
of theni would normally have earned as wages from the date of his
discharge to the date of his reinstatement ; by payment to Charles
Majerick of a sum of money equal to the amount which he would
normally have earned as wages from the date of his discharge to the
date of the Intermediate Report, and from the date of the Order
herein to the date of the offer of reinstatement; and by payment to
Frank Majerick of a sum of money equal to the amount which he
would normally have earned as wages from the date of his discharge
to the date of the Intermediate Report, and from the date thereafter
on which a job as glazer , if any, became available in the respond-
ent's glazing department, or from the date of the Order herein,
whichever date is the earlier, to the date of the offer of reinstate-
ment;' less, in the case of each of the four employees , their net
earnings during said periods.5
4 See Matter of E. R. Haffelfinger Company, Inc and United Wall Paper Crafts of North
America, Local No 6, 1 N. L P. B 760
By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work elsewhere than
for the respondent , which would not have been incurred but for his unlawful discharge
and the consequent necessity of his obtaining employment elsewhere. See flatter of
Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N . L R B 440 Driect relief or home-
relief payments are not to be considered as "earnings " and hence are not deductible
Matter of Vegetable Oil Products Company , Inc, a Corporation and Soap and Edible Oil
Workers Union, Local No. 18409, 5 N. L. R B. 52, amending 1 N L R B 989 Unemploy-
ment compensation benefits are similar in purpose and effect to home-relief payments
and, therefore , are not deductible . Matter of Pennsylvania Furnace and lion Company
and Lodge No. 1328, International Association of Machinists , 13 N L R B 49 The
same Is true of relief payments received from a union Matter of Missouri-Aikansas
Coach Lines, Inc. and The Brother hood of Railroad 'I'r aini nen , 7 N L. It B 186, Matter
of West Kentucky Coal Company and United Mine Workers of Aineiica, District No 23,
10 N. L R. B 88 Nor are monies received as disability compensation from the Veterans
Administration of the United States Government to be considered "earnings" and deduc-
tible. - Cf. Matter of Louis Horwick & Company, Inc and Textile Tiininiing Workers
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire
record, the Board makes the following :
CONCLUSIONS OF LAW
1. Local #30, National Leather Workers' Association, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to the hire and
tenure of employment of Joseph Zalot, Kosta Kula, Charles Ma-
jerick, and Frank Majerick, thereby discouraging membership in
the Union, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
3. The respondent; by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor 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.
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 , Burk Brothers , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local #30, National Leather
Workers' Association , or any other labor organization , by discharg-
ing any of its employees , or in any other manner discriminating in
regard to hire or tenure of employment or any term or condition
of employment;
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organiza-
tion, to form , join, or assist labor organizations , to bargain collec-
tively through representatives of their own choosing , and to engage
in concerted activities for the purposes of collecting bargaining and
other mutual aid and protection , as guaranteed in Section 7 of
the Act.
Union, Local Q 1,40, United Textile Worke, s of America, 2 N L R B . 983; Matter of
anwelt Shoe Manufacturing Company and Shoe Workers ' Protective Union, Local No. 80,
1 N L R B 939 . Monies received for work performed upon Federal , State, county,
municipal , or other work -relief projects are not to be considered as earnings, but, as
provided below in the Order , shall be deducted from the sums due each of the employees
herein , 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 Corporation, et at. v. N. L. R. B.
et al., 107 F ( 2d) 472 ( C. C. A 3 ), enforcing as modified as to other issues Matter
of Republic Steel Corporation and Steel Workers' Organizing Committee , 9 N. L R B 219.
BURK BROTHERS 1301
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to Charles Majerick and Frank Majerick immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and
privileges ;
(b) Make whole Joseph Zalot, Kosta Kula, Charles Majerick,
and Frank Majerick for any loss of pay they have suffered by reason
of their discharges : by payment to Zalot and Kula of a sum of
money equal to the amount which each of them would normally
have earned as wages from the date of his discharge to the date of
his reinstatement; by payment to Charles Majerick of a sum of
money equal to the amount which he would normally have earned
from the date of his discharge to the date of the Intermediate
Report and from the date of this Order to the date of the offer of
reinstatement; and by payment to Frank Majerick of a sum of
money equal to the amount which he would normally have earned
as wages from the date of his discharge to the date of the Inter-
mediate Report, and from the date thereafter on which a job as
glazer, if any, became available in the respondent's glazing depart-
ment, or from the date of this Order, whichever date is the earlier,
to the date of the offer of reinstatement; less, in the case of each
of the four employees, his net earnings during such period ; deduct-
ing, however, from the amount otherwise due each of them, monies
received by them during said periods for work performed on
Federal, State, county, municipal, or other work-relief projects,
and, pay over the amounts so deducted to the appropriate fiscal
agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief
projects;
(c) Immediately post notices in conspicuous places in each de-
partment of the respondent's plant, stating that the respondent will
cease and desist as provided in paragraphs 1 (a) and (b) and will
take the affirmative action set forth in paragraphs 2 (a) and (b)
of this Order; and that the respondent's employees are free to
become or remain members of Local #30, National Leather Workers'
Association, and that the respondent will not discriminate against
any employee because of membership or activity in that
organization ;
(d) Maintain such notices for a period of at least sixty. (60)
consecutive days from the date of posting;
(e) Notify the Regional Director for the Second Region in writ-
ing, within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
283032-41-vol 21-S3