Elkland Leather Co., Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1938

8 N.L.R.B. 519 (N.L.R.B. 1938)

In the Matter of ELKLAND LEATHER COMPANY, INC. and NATIONAL
LEATHER WORKERS' ASSOCIATION, LOCAL No. 37
Case No. C-317.-Decided July 23, 1938
Leather Tanning Industry-Interference, Restraint, and Coercion: declaration
,of individual bargaining policy; acquiescing in and assisting the solicitation of
signatures of employees to petitions expressing preference for local organization ;
bringing about and stimulating anti-union campaign in community-Company-
Dominated Union: domination of and interference with formation and adminis-
tration ; result of employer's hostility to union and anti-union campaign attribu-
table to employer ; disestablished, as agency for collective bargaining-Contract:
with company-dominated union, void and of no effect ; employer ordered to cease
giving effect to-Discrimination: lay-offs ; charges of, not sustained as to certain
persons ; refusal to reinstate : charges of, not sustained-Collective Bargaining:
charges of failure to bargain collectively, not sustained-Strike: provoked by
employer's unfair labor practices-Violeuce-Employee Status: employees laid
off; strikers-Conciliation: efforts at, by U. S. Commissioner of Conciliation and
Pennsylvania Department of Labor and Industry-Reinstatement Ordered: em-
ployees laid off ; strikers, upon application, dismissing newly hired employees if
necessary ; preferential list ordered : to be followed in further reinstatement-
Back Pay: awarded employees laid off; not to include period between date of
ser\ ice of Intermediate Report and date of Decision, in case of employees as to
whom Trial Examiner recommended dismissal of complaint ; ordered, to strikers
not reinstated or placed on preferential list within 5 days of application for
reinstatement.
Mr. Geoffrey J. Cunniff, Mr. Joseph F. Castiello, and Mr. Samuel G.
Zack, for the Board.
Mr. G. Mason Owlett, of Wellsboro, Pa., Mr. John W. Morgan, of
Boston and Lynn, Mass., and Mr. Chester H. Ashton, of Knoxville, Pa.,
for the respondent.
Mr. Roger F. Williams, of Elkland, Pa., and Mr. Edmund M.
Toland, of Washington, D. C., for the Association.
Mr. William F. Regan, of Peabody, Mass., for the Union.
Mr. Emory Rockwell, of Wellsboro, Pa., for the Local.
Mr. Robert Burstein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by National Leather Workers' Association,
Local No. 37, herein called the Local, the National Labor Relations
8 N. L. R. B, No. 56.
519
520 NATIONAL LABOR RELATIONS BOARD
Board, herein called the Board, by Stanley W. Root, Regional Director
for the Fourth Region (Philadelphia, Pennsylvania), issued its com-
plaint dated August 21, 1937, against Elkland Leather Company, Inc.,
Elkland, Pennsylvania, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1), (2),.
(3), and (5), and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. The complaint and
accompanying notice of a hearing to be held on September 7, 1937,
were duly served upon the parties. Thereafter, the complaint was,
amended in several material respects, and a"copy of it in its amended
form was sent to the respondent by registered mail on September 14,.
and was received by it on September 15.
After several continuances, a hearing was held at Wellsboro, Penn-
sylvania, commencing on September 23, 1937, and concluding on Octo-
ber 27, 1937, before Henry T. Hunt, the Trial Examiner duly desig--
nated by the Board. The Board, the respondent, Elkland Leather
Workers' Association, herein called the Association, National Leather-
Workers' Association, herein called the Union, and the Local were all
represented by counsel and participated in the hearing. Full, oppor-
tunity to be heard, to examine and cross-examine witnesses, and to-
produce evidence bearing upon the issues was afforded all parties.
At the commencement of the hearing, counsel for the Board formally
moved to amend the original complaint by including the new allega-
tions contained in the amended complaint with which the respondent
was served on September 15. The respondent filed an answer to the
amended complaint on October 12, 1937, during the course of the
hearing. _
In respect to the unfair labor practices, the amended complaint
alleged in substance (1) that the respondent, during June 1937,
through its officers and agents, brought about the establishment of the
Association, a labor organization, and dominated and interfered with
its administration and operation and contributed financial and other
support to it; (2) that the respondent by various threats and acts of
intimidation discouraged membership .in the Union; (3) that in or
about June 1937 by reason of the aforesaid acts of the respondent,
many of its employees went out on strike, which strike continued to
the date of the issuance of the amended complaint; (4) that at various
times during the month of June 1937 and thereafter the respondent.
refused to bargain collectively with the Union as the exclusive repre-
sentative of the production employees of the respondent, said em-
ployees constituting an appropriate bargaining unit; (5) that in or-
about June 1937 the respondent terminated the employment of and
thereafter refused to reinstate 28 named individuals for joining and
DECISIONS AND ORDERS 521
assisting the Union and engaging in concerted activities with other
employees of the respondent for the purpose of collective bargaining
and other mutual aid and protection; and (6) that in or about July
1937 the respondent refused to reinstate 230 named employees, who
had gone out on strike, for the reason that they had joined and
assisted the Union.
The respondent filed an answer dated September 15, -1937, and an
amended answer dated October 7, 1937, denying in substance that the
respondent had engaged in or was engaging in the alleged unfair
labor practices, and requesting that the amended complaint be dis-
missed. In addition the answer, as amended, set forth certain affirm-
ative matter relating to the allegations of the complaint, including
an averment that the respondent, pursuant to the strike settlement
agreement 'of July 10, 1937, offered reinstatement to the 230 • em-
ployees named in the complaint.
At the com menceinent of the hearing, the Association asked leave
to intervene and to file a petition of intervention •at a later date.-This
was granted. The petition for intervention, dated October 7, 1937;
among other things, denied that the Association had at any time been
dominated or interfered with by the respondent; alleged that the
Association was an independent organization incorporated under the
laws of Pennsylvania, that it had been designated' by a majority. of
the respondent's production employees as their representative, and
that it had entered into a contract with the respondent regarding
conditions of employment; and requested that an election pursuant to
Section 9 (c) of the Act be held to determine the exclusive repre-
sentative of the respondent's employees.
At the conclusion of the hearing, counsel for the Board moved to
amend the complaint to conform to the proof. The motion was
granted. At the conclusion of the Board's case and at the close of
the hearing, counsel for the respondent moved that the complaint be
,dismissed on the ground that its allegations were not sustained by
the evidence. The motion was'denied. Counsel for the respondent
similarly urged separate motions that the several allegations of the
complaint be dismissed. These motions also were denied. The Trial
Examiner granted the motion of counsel for the respondent to dismiss
the complaint in so far as it charged the respondent with discrimina-
tion against named individuals concerning whom- no evidence was
submitted. The motion of counsel for the Association that the coin-
plaint be dismissed to the extent that it affects the Association was
denied.
We have reviewed these rulings and all the other rulings made by
the Trial Examiner on motions and on objections to the admission of
evidence, and find that no prejudicial errors were -committed. The
rulings are hereby affirmed.
522 NATIONAL LABOR RELATIONS BOAR])
On November 29 the Trial Examiner filed his Intermediate Report
in which he found that the respondent had engaged in and was en-
gaging in unfair labor practices within the meaning of Section 8 (1),
(2), and (3) of the Act but not within the meaning of Section 8 (5)
of the Act, and recommended that the respondent cease and desist its
unfair labor practices, reinstate with back pay 115 employees alleged
in the complaint as having been discriminated against, and withdraw
recognition from the Association. Thereafter the respondent and
the Association filed numerous exceptions to both the rulings and the
findings of the Trial Examiner. The Union also filed exceptions to
certain of the findings of the Intermediate Report.
A hearing for the purpose of oral argument on the exceptions was
scheduled to be held before the Board on January 11, 1937. Counsel
for the respective parties appeared before the Board on that day but
waived hearing and agreed to submit briefs in lieu thereof. We have
given due consideration to the briefs which were thereafter filed.
One of the Association's exceptions to the Intermediate Report
was to the failure of the Trial Examiner to find and conclude that
the request of the Association for an election should be granted.
We find no merit in this exception. The request of the Association
is tantamount.to a petition for certification of representatives and
should have been filed with the Regional Director in accordance with
Article III, Section 1, of National Labor Relations Board Rules and
Regulations-Series 1, as amended.
The Board has fully considered all the exceptions of the respective
parties to the findings made in the Intermediate Report and, save to
the extent that ^ the findings below depart from those of the Trial
Examiner, finds that the exceptions are without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Massachusetts corporation, engaged in the
business of tanning hides for sole leather at its plant in the Borough
of Elkland, Tioga County, Pennsylvania. The respondent's plant
constitutes the largest sole-leather producing unit in the industry.
The volume of the respondent's tanning business for 1936 totaled
between $2,500,000 and $3,000,000. Prior to the strike of June 26,
1937, the respondent employed 944 production employees.
The respondent is known in the industry as a "contract tanner."
It does not itself own the hides processed by it but processes hides
belonging to others. All of the respondent's business is handled by
Proctor Ellison Company, a Delaware corporation, through its office
DECISIONS AND ORDERS 523
in Boston , Massachusetts . This company acts in the capacity of
broker or factor and enters into contracts with other companies, en-
gaged in marketing sole leather, for the tanning of their hides by
the respondent. The respondent also tans hides owned by the Proc-
tor Ellison Company. The latter company pays the respondent on a
poundage basis for all the leather tanned and purchases and ships to
the respondent the raw materials used in the tanning process.'
In the course of a normal year the respondent processes approxi-
mately 22,000,000 pounds of sole leather. About 90 per cent of the
raw hides come from outside Pennsylvania and approximately 85
per cent of the tanned leather is shipped to points outside Pennsyl-
vania. The consignees of the shipments are designated by the Proc-
tor Ellison Company.
The respondent uses annually in its operations approximately
2,000,000 pounds of tanning materials, consisting principally of
barks, extracts, fillers, and mineral oil. Approximately 75 per cent
of these materials are shipped to the respondent's plant from outside
Pennsylvania, most of them originating in foreign countries.
The entire process of tanning hides normally requires about 70
days. For the first 6 or 7 days the hides are kept in the "beam
house" where they are first subjected to the soaking process and then
to the liming process. Thereafter the hides are moved to the "yard"
where they are suspended on rocker frames and immersed in tanning
liquors of gradually increasing strength. The whole process in the
"yard" requires between 3 and 4 weeks' time. The next process takes
place in the "scrub house" where the hides are dried, cleaned, and
lubricated. Finally, the hides are removed to the finishing depart-
ment and made ready for shipping. During the first 14 -days after
the hides are placed in the soak they are in a highly perishable con-
dition and subject to rapid deterioration in the absence of normal
attention. The perishable state continues, although to a lesser extent,
while the hides are in the weaker tanning liquors. They reach- a com-
pletely preserved state at the end of about 28 days when they are
"laid away" in the heavy tanning liquors.2
In addition to the various departments in which the tanning proc-
esses take place, the respondent's plant contains a cut-sole depart-
ment where leather owned by Proctor Ellison Company is stripped,
cut, sorted, and graded for shipment and sale. This department is
1 A large majority of the capital stock of both companies is held by members of the
Ellison family . As to the respondent , approximately 1/,, is held by Eben H. Ellison , Jr., its
president, % by Eben H Ellison, and % by Harriet Ferris, the latter 's daughter.
2 From time to time, and particularly when the number of hides placed in soak daily
approaches 4,000, bellies are removed from a certain percentage of hides at the end of the
soaking and liming process . These bellies are not tanned or finished but are made into
"pickled bellies."
524 NATIONAL LABOR RELATIONS BOARD
under the management of Daniel E. Watson, an employee of Proctor
Ellison Company, who gives orders from Boston to Gordon Clark,
the foreman directly in charge of the employees in the department.
Although the relation of the cut-sole department to the respondent is
not altogether clear, the record shows that the men employed there-
normally about 60 in number-are considered by the respondent as
its employees. They are originally paid with checks of the respond-
ent, although the respondent is thereafter reimbursed by Proctor
Ellison Company, and they are included in the lists of the respond-
ent's employees which were furnished by Clark Prindle, the manager
of the respondent.3 Gordon Clark testified that he considers him-
self an employee of the respondent. He further testified that at least
some new employees in the department communicate with Kyofski,,
the personnel manager of the respondent, before reporting to work-
II. THE ORGANIZATIONS INVOLVED
National Leather Workers' Association is a labor organization af-
filiated with the Committee for Industrial Organization, herein
called the C. I. O. Local No. 37 was organized on June 15, 1937, and
received a certificate of affiliation with the National. The Local ap-
parently admits to membership all the production employees of the
respondent.
Elkland Leather Workers' Association, Inc., is a labor organiza-
tion affiliated with the Independent Federation of Labor. It admits
to membership all non-executive employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Relation of the respondent to the borough of Elkland
The borough of Elkland has a population of about 3,000. The
respondent plays a dominant role in the economic life of the town's
inhabitants, workers, businessmen, and public officials alike. The
respondent's tanning business constitutes practically the borough's
only industry and, in the words of J. O. Pattison, president of the
Pattison National Bank, its "life's blood." The pay roll of the re-
spondent's plant furnishes the town with its chief source of income
and is the basis of credit extended to employees in the plant by Elk-
land merchants.
The respondent owns about 125 houses which it rents to its em-
ployees. In addition the respondent enters into a so-called "land
contract" with employees pursuant to which it furnishes materials
3 See Respondent Exhibit Nos 25 and 26, which list the number of employees in the
various departments and include the cut -sole department.
DECISIONS AND ORDERS 525
and labor for the construction of houses and sells such houses to em-
ployees on a rental basis, allowing them an almost unlimited number
of years in which to pay.
The general store operated by the Elkland Trading Company is
generally known as the "tannery store." Although the present stock
ownership of this company is not clear,4 the record shows that its
policies are controlled by Eben H. Ellison. There is similarly a close
relationship between the respondent and the Elkland Electric Com-
pany, which is located on property of the respondent and to which
the respondent sells part of the electric power generated by it.
Most, if not all, of the capital stock of the Elkland Electric Com-
pany is owned by Eben H. Ellison, Jr., and Clark Prindle.5 The
respondent is also connected with the Elkland Lumber and Supply
Company through Prindle, who together with Ordway, the man-
ager of the Elkland Trading Company, owns its stock. Bills in-
curred by the employees of the respondent at the Elkland Trading
Company and Elkland Electric Company are often deducted from
their pay checks by authorization of the employees.
The most influential citizens of Elkland are closely associated with
the respondent through business relationships. Thus J. O. Pattison
is the president of the Pattison National Bank, which carries a sub-
stantial account of the respondent. A. W. Button, the owner and
publisher of the Elkland Journal, the only newspaper in Elkland,
handles 90 per cent of the respondent's job printing. C. E. Irons, one
of the two justices of the peace, and tax collector, collects through the
respondent borough occupational taxes assessed against employees
and general merchandise bills owed by employees to merchants.
Supervisory employees of the respondent hold important public
positions in the town. C. W. Campbell, the office manager, is a mem-
ber of the Borough Council. W. G. Myers, foreman of the outside
department, is the borough's burgess and chief of police. Richard
Snyder, "yard" foreman, is president of the school board of directors.
B. Background of the unfair labor practices
Until May 1937, no labor organization had gained a foothold in
the respondent's plant. An attempt at organization made by the
American Federation of Labor in 1933 proved fruitless. Walter John-
son, an employee of the respondent, testified that he and four other
employees who had joined the American Federation of Labor at that
4 In December 1922, when the Elkland Trading Company was incorporated, 73 out of
the 100 shares of its capital stock were held by Eben H Ellison.
6 In December 1925, when the Elkland Electric Company was incorporated, Eben H.
Ellison, Jr , received 88 shares and Prindle received 10 shares of the 100 shares consti-
tuting its capital stock.
526 NATIONAL LABOR RELATIONS BOARD
time and endeavored to organize the plant were laid off as a conse-
quence.
Sometime in April 1937, after the constitutionality of the Act had
been upheld by the Supreme Court of the United States, Prindle,
pursuant to a conference with Eben H. Ellison, warned the foremen
of the various departments not to interfere with the organizational
activities of the employees. He instructed them to inform him im-
mediately of any indication of organizing, stating that he "would
take care of the situation personally."
Organizational activities among the respondent's employees began
early in May 1937 when a group of employees, including Elmer
Backes, Hiram Davis, Elwin Wright, John Creeley, Lee Russell, John
Russell, and George Houghtaling, met to discuss plans for the organ-
ization of the plant. The group dispatched a message to the head-
quarters of the Union, and on May 24 Joseph F. Drummey, a member
of the Union's executive board and a temporary organizer, arrived
in Elkland. Drummey testified that he first conferred with the organ-
izing group on a side street in the dark, because the men were afraid
that it "wouldn't be very healthy" for them to be seen talking with
him. The men believed that a majority of the respondent's employees
were in favor of establishing a local affiliated with the Union. Drum-
mey thereupon furnished the group of men with 500 union applica-
tion cards, and a membership campaign was launched.
In May or June 1937, pursuant to orders from Prindle, Joseph
Kyofski, the personnel manager, directed the clerks to attach to the
pay checks of the employees printed statements reading as follows :
You are under no obligation to join any union and cannot be
forced to do so as this tannery will always operate as an open
shop.
This company will deal individually with any employee that
wishes to do so at any time.
ELKLAND LEATHER CO., INC.
Drummey received orders from the Union's headquarters to leave
Elkland temporarily on June 2. Prior to his departure he formed
an organizing committee comprised of the men in the original group.
On June 15 Joseph F. Massida, another union organizer, came to
Elkland to assist in the organizational drive. The same night a meet-
ing attended by about 50 or 60 employees was held at the home of
Elmer Backes, at which Local No. 37 was organized and temporary
officers elected. Backes was elected president, Woodbeck, vice presi-
dent, Davis, secretary-treasurer, and Harvey Roach, recording secre-
tary.
DECISIONS AND ORDERS 527
The Local subsequently found it difficult to secure a meeting place.
It was refused both the school auditorium and the Italian Hall,
ordinarily utilized for public meetings. Finally it was decided to,
hold a mass meeting in the borough park on June 20. However, on
the night of June 19, Massida heard rumors of a plot to cause a riot
and place the blame on the Local. Consequently the meeting place
was changed to a field beyond the borough limits. Later daily meet-
ings were held at the "Chicken Coop," a structure just outside the
borough limits.
In the meantime Drummey had returned to Elkiand. He testified
that Massida turned over to him 461 union application cards and
that the organization work continued and additional members were
secured.
C. Interference, restraint, and coercion
1. Events preceding the strike of June 26
Shortly after the arrival of the union organizers there began a
series of events which discouraged membership in the Union and
resulted in the defeat of its organizational efforts.
On May 29 and June 1, respectively, occurred the lay-off of Rush
Woodbeck and John Creeley, employees in the rolling loft, who were
both in the Union's original organizing group-6
On about June 16, Herman Kilburn and Ed Woodward, "beam
house" employees, met with a group of about 12 other employees to
discuss the formation of an independent organization. Kilburn pre-
pared for signature sheets of paper bearing the following statement :
We, the undersigners, prefer a local to a national union.
Kilburn and Woodward circulated these papers and solicited signa-
tures in the various departments of the plant for about 2 or 3 days.
Although they were not on their working shifts at the time, they
solicited the signatures of other employees during working hours.
Several employees testified that, according to Kilburn and Woodward,
the purpose of signing the paper was to start a "company union."
Thus, Harold Smith, a mechanic in the scrub house, testified that
Woodward handed him the paper, asked him what he thought about
"this company union" and remarked that the respondent was backing
it. Similarly, Byron Case, a "beam house" employee, testified that
Woodward asked him to sign the paper in the presence of other
employees saying, "It is for a company union."
Other employees testified that they were warned by the employees
engaged in circulating the papers that failure to sign them would
See infra, Part III, F.
528 NATIONAL LABOR RELATIONS BOARD
endanger their jobs and were told that the purpose of obtaining sig-
natures was to help keep the plant running. Thus, according to Delos
Bruce and John Minso, Kilburn admonished them that they would
have no jobs if they did not "sign a company union." Similarly, Frank
Minso testified that he was advised by Roy Davis, a "beam house"
employee, to sign the paper if he wanted to keep his job.
- There is evidence that the papers were circulated by employees with
the acquiescence and with the support of the respondent's foreman.
Several foremen were admittedly aware of the circulation of the papers
but nevertheless made no efforts to stop it. Floyd Smith, foreman of
the beam house, and George Davenport, assistant foreman of the out-
-side department, signed one of the papers themselves. Floyd A. Clark,
a rolling loft employee, testified that Clyde Heitznenrater, assistant
foreman in the loft, asked Gene Royer, an employee in the rolling loft,
if he had obtained his (Clark's) signature to the paper "to help to
keep the tannery running." He also testified that in Heitznenrater's
presence Gene Buck, a "beam house" employee, and Royer warned
him that if he did not want to sign the paper and did not think he
'ought to keep the tannery running, he might just as well quit.
Charles Finnerty, an employee in the rolling loft, testified to the
following. incident : As he was working, Walter Parsells, another
employee, threw a paper on his machine, explained that it was for a
company union and _ said, "Charlie, you better sign that." Fin-
nerty replied, "To hell with it. I don't want to join it." Parsells
thereupon went to the office in the loft. A little later Jesse Jones,
the assistant foreman, came in and said, "Charlie, did you mean what
you said?"' Finnerty` replied, ". . . if I hadn't meant it I wouldn't
have said it."- Jones remarked, "Well, you have a large family and
have a- hard time getting along. You better sign that paper. Go
down to the office and sign it ..."
Mack Scott, a yard employee, testified that on about June 15 or 16
Andrew Snyder, the foreman, called him in as he passed by the office
and asked him to sign the paper. He told him about the industrial
Council at the Corning Glass Company, and said that the respondent
would deal with the employees if they had an inside union but that
it would have nothing to do with the C. I. 0. Snyder further stated
that if he did not sign the paper he would know what side he was on.
Scott's version of the conversation is in substance corroborated by
George Hall, another employee in the yard, who was present. Snyder's
version is as follows : He asked Scott what he thought about the paper.
When Scott said he would not join a company union Snyder asserted
the paper was not for that purpose. He then told Scott about the
Industrial Council at the Corning Glass Company, read a few para-
DECISIONS AND ORDERS 529-
graphs from its bylaws, and commented that it was a nice, set-up.. He
added, however, "You understand that there cannot be any such
organization any more. As I understand it it is barred by the-Wagner
Act." Snyder further testified that he found the paper on his desk
without knowing who placed it there. He admitted however that he
asked about 10 or 12 employees to sign it in order to find_out whether
some of his friends would remain at work in the event of a walk-out.
The solicitation of signatures to the petition continued until June 19.
According to Woodward and Kilburn over 600 signatures had been
procured by that time.
There is also some evidence that, independently of the paper, fore-
men suggested to employees that they form an "inside" organization.
Edward Maxwell testified that on June 17 Charles Norton, the fore-
man of the shipping -department,., said- to him, "Clark (Prindle)
thought you would help us organize a company union." Ernest P.
Stocum, an employee in the cut-sole department,' testified that on
June 21, the day after the first public meeting of the Local, Gordon
Clark, the foreiinan, remarked to him, ". .'. they tell me you are
active in the organization of the C. I. 0." He then inquired whether
Stocum was signed up and, upon receiving a reply in the affirmative,
said, "I did not think you would do that.' I thought you would kind
of wait to see how things turned out'. .. I thought maybe you would
join an independent union." Stocum asked, "What do you meant
independent union-company union''" and Clark replied,."Yes."
On about Julie 17, A. W. Button, the publisher of the I+;lkland,
Journal, prepared a draft of an anti-C. I. 0. manifesto and gave, it-
to Enoch Blackwell, treasurer of the Pattison National Bank, to,
obtain signatures thereto. Blackwell obtained signatures from de
positors'at the bank. It was signed: by 53 persons, including. the
leading business and professional men of, Elk]and. On June 19
Button printed at his own expense 750 or 800 copies` of the manifesto
with the attached signatures. Copies were mailed to all' the, post
office boxes in' Elkland. The cost of the postage vas defrayed by
the Pattison National Bank. , The manifesto stated that many.em-
ployees were refusing to affiliate with the C. I: 0., land preferred. the
organization of a local union of workers, set forth the advantages of_
a local union, and expressed the belief that such a union, would be
acceptable to the respondent. The manifesto continued:
The choice of C. I. 0. or local union is entirely a matter for
the workers themselves to decide. Under the terms of the new.
Wagner Labor Act, tannery officials, are forbidden to enter into
bargaining in any way, except to approve the militant -demands
of an organization that is interested only in .securing dues, and
assessments for furthering what has all the earmarks of a Com-
530 NATIONAL LABOR RELATIONS BOARD
munistic regime, and the support of a trouble making organiza-
tion . . .
Last but not least. What if the tannery should shut down
permanently? The result would be a calamity to every person
who owns a dollars worth of property in Elkland. And from a
reliable source it is understood that the tannery will shut down
before the demands of the C. I. O. will be accepted. . . [Italics
supplied.]
Before workers align with the movement on foot that may
result in disaster to every property owner or married man with
family, they should consider the existing situation thoroughly.
In this town that depends solely upon the operation of an
industry employing upwards to a thousand men, a shut down
will be disastrous, and if such occurs Elkland will become just
another ghost town, a wide place in the road that once boasted
the largest sole leather tannery on earth.
It is apparent that the respondent made no effort to refute in any
manner the statement in the manifesto that "the tannery will shut
down before the demands of the C. I. O. will be accepted."
An event of far-reaching importance occurred on June 18. On
that day the respondent placed in soak a very small number of hides
and on the next day discontinued soaking hides altogether. The
stoppage of the soak involved a gradual cessation of operations and,
if not resumed, a possible shut-down of the plant after the hides
already in soak went through the various processes. At any rate,
it necessitated the closing of the "beam house," employing about 160
men, within a few days. In anticipation of such closing, the re-
spondent, on June 19 and on June 21, laid off about 13 single men
from the shipping department in order to provide positions for mar-
ried men employed in the "beam house." Included among those laid
off were Edward Maxwell and Louis Cevette,7 who were in the group
which initiated the organizational- activities within the plant. On
June 24 "beam house" operations ceased and all the men were laid
off, except for a certain number transferred to other departments.
Hiram Davis, financial secretary of the Local, and Elwin Wright, a
member of the organizing group, were among those laid off and not
transferred."
On the night of June 22, Drummey, Massida, and Lehane, another
union organizer, were run out of town by a group of men. Del Allen,
a timekeeper in the "beam house," and subsequently president of the
Association, acted as spokesman for the group. According to his
7 See infra, Part III, F.
See Infra , Part III, F.
DECISIONS AND ORDERS 531
testimony, he heard some of the men who were listening to a broad-
cast of the Louis-Braddock fight near Serena's service station suggest
that Massida and Druinmey be beaten up and driven out of town.
Allen thereupon communicated with the organizers and advised them
to leave town and avoid trouble. Drummey, however, testified that
Allen warned him, "If you will get out of town, there is nothing
going to happen. If you do not get out of town, it is going to be
too bad for you." Drummey also testified that he saw Booth and
Webster, the two police officers of Elkland, run the other way and
disappear. The organizers left Elkland in their automobile and
were followed by about 20 other automobiles.
After Kilburn ceased circulating the papers expressing a preference
for a local organization, he began to plan a "loyalty" meeting to be
held on June 24 at the Italian Hall. He enlisted the services of
Del Allen, who undertook the organization of the "loyal" employees.
Allen' -communicated with Roger Williams; the borough. counsel and
only attorney in Elkland, and requested his assistance in conducting
the meeting. Williams agreed to act as chairman. At the meeting
Williams stated that he was interested in the continued operation of
the plant and suggested that the employees, if they desired the soak-
ing of hides to be resumed, appoint a committee representing the
different departments for the purpose of preparing a petition to the
respondent. This was done. On the following day the committee
met and adopted the form of a petition drafted by Williams. The
petition was signed, "Elkland Leather Workers' Association, Adel-
bert E. Allen, chairman, William Searle, vice chairman, and attorney
Roger F. Williams, secretary," and stated, in part, as follows :
We, the undersigned employees of the Elkland Leather Com-
pany, Inc., have through causes in which we have had no part
been released or fearing that we will be released from our em-
ployment by the company, whereby not only we but the entire
community of Elkland and its outlying districts have suffered
materially and will be put to greater hardships should the pres-
ent situation continue, have therefore associated ourselves into
the Elkland Leather Workers' Association and declare our posi-
tion and objective to be':
We hereby state and emphasize our past and our continued
loyalty to both the Elkland Leather Company and to its man-
agement and we deplore and denounce any and all agitation
and activity from whatsoever source leading or directed towards
a severance of the friendly and cooperative associations that have
always existed between the company and its management and
the employees, believing such agitation and activity to be sub-
versive of our rights, antagonistic and destructive of our separate
117213-39-vol. 8-35
532 NATIONAL LABOR RELATIONS BOARD
and collective interests, and contrary to the judgment and wishes
of the vast majority of our fellow workmen .. .
We denounce and condemn the attempt of any person or per-
sons, whether those persons be from among our fellow workmen
or from outside sources, to intimidate or coerce the company or
any of ourselves into a situation where that-cooperation and our
friendly relationship with the company would be disrupted .. .
-Of the Elkland Leather- Company, Inc., we demand that our
right to a job be acknowledged, that our-interests and those of
the company itself be not' jeopardized and imperiled by. the un;
considered and fanatic agitation of -a', handful- _of malcontents;
that the company accept this assurance of our :loyalty and-coop-
eration aid-that steps' be taken ' immediately- to increa'e produc-
tion-in the company plant to-the point where we will- each 'and
every one of u's be returned to the employment from which' we
have without our wish- or consent been released. -
It was testified that by noon of June.26 about 506 or 600 ,employees
had signed this petition.
At about the same time C. E. Irons, justice . of the'-peace and
borough tax collector, conceived the idea of helping employees to
withdraw from the Union. He had printed at his own -expense a
considerable number of -withdrawal forms,°- some of - which he gave
to, Williams, 'and then passed word among the employees that ,the
forms were available -for use. - Both irons -and -Williams notarized
the forms free of charge.
2. The strike of 'June 26 and succeeding events
On the night of June • 24 a meeting of the Local -was held at the
Chicken Coop, and Massida, who had in the meantime returned to
Elkland, instructed the appropriate committee to formulate demands
for presentation to the respondent. On June 25 the members of the
Local voted to' present the demands to Prindle the following. morn-
ing and, in the event of a refusal to grant a conference, to strike
at 2 o'clock of the same day.
About 9: 30 on Saturday morning, June 26, Massida telephoned
Prindle from Elmira and requested that a conference be arranged
for the purpose of collective bargaining.. Prindle replied that he
could take no action until 4 o'clock in the afternoon since he had to
go out of town. Massida acquiesced. At about 11 o'clock John
9 The form was addressed to the Union and read as follows :
I the undersigned , hereby withdraw my application for membership 'in the
National Leather Workers Association, affiliate of the C. I. 0. and direct that my
name be stricken from any roll -of applicants for membership.
DECISIONS AND ORDERS 533
Creeley phoned Massida and told him that the employees in the cut-
sole department had been laid off.1° Massida believed that the re-
spondent was acting in bad faith. He therefore instructed Creeley
to have the demands presented to Prindle and, if Prindle would not
consent to a conference, to call the strike. At about 12: 30 a commit-
tee of four or five members of the Local, including Backes, Maxwell,
and Davis, called at Prindle's office with a sealed letter containing
the Local's demands. Prindle being absent, the letter was delivered
to his secretary. Prindle returned about 1: 50 and was apprised of
the impending strike. He was given the letter but put it in his
pocket unread. At 2 o'clock about 103 men at work on the shift end-
ing at 4 o'clock walked out on strike. The foremen were instructed
by Prindle to clean up the work on the present shift and notify the
men on the night shift to report to work Monday morning. At 4
o'clock Prindle telephoned Massida. According to the latter's testi-
mony it was agreed to let matters remain in statu quo until Monday
morning in order to enable Prindle -to get in touch with his superiors
in Boston. Prindle testified that Massida told him to- forget about
the conference they were supposed to arrange.
On June 27 another back-to-work or "loyalty" meeting was held at
the school auditorium. Roger Williams, who had arranged the meet-
ing and procured the use of the auditorium, discussed the progress
of the back-to-work or "restore-the-soak" movement. An announce-
ment was made that all the men were to report to work the following
morning. At the close of the meeting a committee was formed by
the business and- professional men who were in attendance. , Its pur-
pose was to assist- in the maintenance of peace and order during the
strike, if called upon to'do so by Burgess Myers. It does not appear,
however, that the committee was ever summoned by Myers or that it
ever functioned.
On June 28 Myers, pursuant to a,resolution passed by the Borough
Council empowering him to secure all the additional police he deemed
necessary,- telephoned the Burns Detective Agency in Philadelphia
and retained the services of 12 operatives, who arrived in Elkland on
June 29 and were sworn in as borough police officers.-
The, employees in the cut-sole department remaining after the lay-
offs on June 5 and 19 were laid off shortly before the strike, and it
was stated that the department would be shut down for 2 weeks.
However, at about 7 o'clock on the morning of June 28, approxi-
10 As set forth hereafter ( infra, Part III, F ), because of surplus stock on hand and a
decline in the shoe market, 23 employees in the cut -sole department were laid off on
June 5, 15 more on June 19, and the remaining 22 on June 26, when it was announced
that the department would be shut down for 2 weeks.
n Several additional officers had been procured by Myers during the period between
June 18 and June 28.
534 NATIONAL LABOR RELATIONS BOARD
mately 22 cut-sole employees, including certain ones who had been
laid off on June 5 and June 19, reported to work pursuant to the
announcement at the "loyalty" meeting the day before. Gordon
Clark, the foreman, advised them to stay around in case anything
turned up. He testified that about 8 o'clock the sane morning Wat-
son telephoned him from Boston, informed him that an order for
sole leather had just come in from a customer at Colu bus, Ohio,
and told him to put the available men to work. Clark explained that
although they had a large inventory on hand, it was necessary to fill
in certain grades and weights specified in the order. However,
neither the order itself nor any other written evidence concerning its
contents was produced in evidence.
On June 30 the respondent resumed soaking hides. On June 26
Williams told Prindle that over 400 employees had signed the back-
to-work petition and inquired what action the respondent would take
in response to it. At that time Prindle replied he would do nothing
until he consulted Proctor Ellison Company. On June 29 Williams
again urged Prindle to take action, informing him that the number
of signatures had increased to more than 650. Prindle then said that
he had received orders to resume the soak on the following morning.
On that morning 713 hides were placed in the soak. The number
was gradually increased to 1,440 on July 10 and to 2,160 on July 13.
3. Conclusions with respect to interference, restraint, and coercion
The union membership drive, as appears from the various events
set forth above, was frustrated by certain anti-union activities
directly engaged in by the respondent and by the general anti-union
campaign in Elkland.
Reference has already been made to the printed statements attached
to the employees' pay checks in which the respondent announced that
it would always deal with individual employees. This declaration of
intention was manifestly designed to discourage organizational ef-
forts. It has been our experience that such statements of policy are
ordinarily made by employers who are hostile towards unions and
who seek to avoid dealing with them in any manner. We have also
seen that at the height of the organizational drive of the Union,
signatures to petitions expressing a preference for a local organization
were solicited within the plant with the acquiescence and support of
the respondent's supervisory employees. By these acts the respondent
interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act.
These acts showed the respondent's attitude towards the organiza-
tional efforts of its employees and, by virtue of its dominant economic
DECISIONS AND ORDERS 535
position in the community, undoubtedly brought about the anti-union
campaign in Elkland. The respondent made no efforts to stop the
campaign. It did not even contradict the statement in Button's
manifesto that it was understood from a reliable source that the plant
would be shut down before the respondent would accede to the de-
mands of the C. I. O. On the contrary, a few days after the mani-
festo was drafted the respondent stopped soaking hides. To the whole
population of Elkland the stoppage of the soak, taken in connection
with Button's manifesto, could only mean that the entire plant would
gradually shut down unless the efforts of the Union were defeated. It
thus proved effective in aligning the members of the community into
a unified group actively opposed to the Union.
. It is contended by the respondent that it stopped soaking hides
because of its fear of a strike which, if successful, might result in
damaging the hides which had not yet reached a safe state in the
tanning process. Prindle testified that he heard rumors of a strike
as early as the first part of June and that on June 18 Ellison approved
his recommendation to discontinue soaking hides. Prindle further
testified that his anxiety was enhanced by reports of a sit-down strike
at the Ohio Leather Company and the loss incurred as a result.
In the light of the attendant circumstances we are not convinced
that this was the real cause inducing the respondent to discontinue
soaking the hides. We rather believe that the respondent was moti-
vated by a desire to foment anti-union activities in Elkland and to
defeat the efforts of the Union. Prindle testified that his fears of a
strike were based merely on general rumors in Elkland. He admitted
that no employees nor anyone connected with the Union spoke to him
about a contemplated strike. Moreover, at the time of the stoppage
of the soak the Union had not even formulated any demands, and its
activities were confined to a membership campaign. It is unlikely
that Prindle was unaware of the stage of the Union's activities.
Even assuming that the real reason for the stoppage of the soak
was the fear of an impending strike and damage to the hides, the
respondent, under the circumstances, is nevertheless responsible for
the anti-union activities which followed. There is not a word of
evidence that the respondent sought in any way to allay the fear of
the community that the plant would close or to quiet the situation
by a straightforward announcement that the discontinuance of the
soak was not due to its hostility towards the Union, that its employees
had a right to self-organization, and that it did not desire the use
of intimidation to break up the Union. That is the least the re-
spondent could have done if its intentions had not been to create
a situation stimulating anti-union activity.
This anti-union drive resulted from the respondent's attitude
towards the Union as shown by its declaration of individual bargain-
536 NATIONAL LABOR RELATIONS BOARD
ing policy and by the assistance rendered by foremen in the circula-
tion of papers expressing a preference for a local organization. It
was further stimulated by the unexplained stoppage of the soak.
We find that the respondent's conduct in bringing about and stimu-
lating the anti-union campaign in Elkland constitutes interference,
-restraint, and coercion of its employees in the exercise of their right
to self-organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for col-
lective bargaining and other mutual aid and protection.
D. The strike settlement agreement
1. The • events of July 10-12
As a result of negotiations carried on through the efforts of W. C.
Liller, United States Commissioner of Conciliation, and George L.
Hummel, Mediator, Pennsylvania Department of Labor and indus-
try, the representatives of, the respondent, the Union, and the Local
entered into a strike settlement agreement on July 10. The agree-
ment, signed by. Prindle, Massida, and Emory Rockwell, counsel for
the Local provided as follows :
Memorandum of Strike Settlement-at Elkland Leather Company
1. The strike at the Elkland Leather Company shall terminate
at once and the National 'Leather Workers' Association shall
immediately cause all pickets to be removed from the Company
premises and elsewhere 'in the Borough of Elkland.
2. All, of the employees of the Elkland Leather Company who
have been on strike at the tannery, except those who have been
engaged , in acts of violence, 'shall be returned to their former
postitions, without discrimination, as work progresses through the
cory.
&M6' Company asserts' that. no new employees or strike
breakers have been'hired•_at the Elkland Leather Company diir-
ing the strike,'period and, therefore,' no new employees shall be
hired to , fill the 'occupations of the striking • employees as of
'June,'26, 1937, until all, such striking employees have, been
offered. reemployment, except those who have engaged, in acts
of violence during ' the strike.
4. All State and- Federal laws pertaining to industrial rela-
tions between employer 'and employee .shall be complied with
by, the 'Company • and the Employee-parties hereto.
At a, meeting of the, Local on Sunday evening, July 11, Massida
read the terms of the agreement, and the strike was called off.
DECISIONS AND, ORDERS 537
Massida testified that he instructed all the men to report the follow-
ing morning to their respective bosses, who would- inform them when
to come to work. According to the testimony of Harold Turner, a
yard employee, Massida told all the_ men to go back to work the
following morning. -
On Sunday morning 'Prindle instructed Kyofski, the - personnel
manager, to ascertain the available positions and the number of
striker`s who'could be put back to'work. Kyofski examined the pay
rolls and ,concluded- that about 35 or 40 men, whose names he listed,
could be'returned, to work'oii Monday morning, July 12. There is
no evidence, however, that any` instructions had been given to fore-
men regarding the return of the strikers.
At about 630 or `7": 00 o'clock on 'the morning of July 12, the
strikers beg to to return to the plant., At'the bridge connecting the
public street with, the, plant, they `were confronted, by
-five or six Burns men and special deputies, who prevented tliem from
crossing. ' Gradually about 200 strikers' assembled at the bridge
Kyofski came out of the office and without consulting his list pointed
to some. of the men to report to work. ' He testified, `,`They happened
to be the first ones right there `in front of me." Somebody.shouted
that Kyofski was trying to "pull a trick." Somebody else said that
everybody-was going back to work. Kyofski thereupon told.-Prindle
that there was apparently_a misunderstanding. Prindle called into
'his, office a committee of strikers 'including Backes, George Hall, and
Harold Roach., !It was the position of the committee that, pursuant
to the agreement, strikers were -to be returned to their former posi-
tions and non-strikers occupying such ;positions were to -be.displaced.
Prindle and William Ellison,.an officer of the respondent, maintained,
however, that strikers were to be taken on ,only -as additional 'jobs
became available but that 'non-strikers were not to be removed.
Ellison explained that the soak-would be increased and the men taken
back as soon as possible. Ellison further stated that he did not
have a copy of the agreement with him and would have to communi-
cate, with Hummel and Liller concerning the interpretation of the
agreement. Prindle testified that he could not get as far as to talk
about the 40 available positions because Backer had a totally different
conception of the agreement. The committee reported the 'result of
the conference to the men, who proceeded forthwith to the "Chicken
Coop" and voted to resume the strike.
Beginning at some time after July 12 and continuing until about
September 23, the respondent sent letters to its striking employees
offering them jobs. Prindle testified that all-strikers,, except those
guilty of violence, have thus been offered their former ' positions
without discrimination. The record indicates that 'strikers received
538 NATIONAL LABOR RELATIONS BOARD
two or three letters each, the first ones offering them temporary jobs
until their former positions were available and the last letter offering
them their former jobs. There is no evidence that any new employ-
ees were hired by the respondent. Between July 12 and the date of
the hearing further conferences were held between representatives
of the parties regarding the settlement of the strike.
2. The alleged discriminatory refusal to reinstate 230 employees
The complaint, as amended, alleged that in July 1937 and at all
times since the respondent refused to reinstate 230 named employees
because of their membership in the Union. The respondent in its
answer denied this allegation and asserted that, in accordance with
the agreement of July 10, it had offered to reinstate each of these
employees to their former positions.
It was apparently the theory of counsel ,',for the Board that the
respondent by its conduct of July 12 deliberately violated the agree-
ment and refused to reinstate the employees because of their union
membership and activity. The evidence is conflicting with respect
to the intended meaning of the terms of the agreement. Massida
testified as follows :
I would not agree on that (agreement) unless it meant that
a man working days who went out on strike, and a loyal worker
working nights was on his job, that the man working nights
on the day man's job would be moved off. And Mr. Liller says,
"If it does not mean that, it does not mean anything." I says
if it means that, it is 0. K. with me.
Massida admitted, however, that he did not expect Prindle to take
all the strikers back at the same time. Massida's testimony as to
the conciliators' understanding of the agreement ,is in substance cor-
roborated by Fred Thurston, a demoted foreman, who was present
at the conference. According to Daniel Close, an employee, who
also attended, "everybody was supposed to go back to their former
position, providing they were working at that time, and they were
open." He also testified that Morgan, counsel for the respondent,
explained the impossibility of taking all the strikers back at the
same time and that there was some discussion about doing so in 30
days.
According to Prindle's testimony it was definitely understood that
no men were to be discharged to make room for strikers but that
the strikers were to be taken back as rapidly as production picked
up in the plant. It was also his understanding-that a representative
of the Union was to be sent to the plant to find out the number of
DECISIONS AND ORDERS 539
men needed from time to time and to cooperate with him in carrying
out the agreement.
In the course of the hearing , counsel for the respondent called as
witnesses Charles G. Webb and Benjamin B. Bastian , two Wellsboro
attorneys , the latter associated with G. Mason Owlett, and offered
to prove through them that at a conference on about August 23,
in Owlett 's office, attended by Hummel, Liller, Bastian, Webb, Regani
and Rockwell , counsel for the Local, who signed the agreement,
Rockwell admitted that his understanding of the agreement coin-
cided with that of the respondent . This offer of proof was rejected .1-2
At no time during the hearing were either Hummel or Liller called
by counsel for the Board to testify regarding the agreement nor
were, as far as appears,,any attempts made to obtain their presence
at the hearing.
Although the failure of Prindle, whose decisions controlled the
progress of work within the plant , to prepare and submit to the
Union a schedule regarding the reinstatement of the men on Monday
and following days, and the retention of the police at the plant in
spite of the strike settlement agreement , seem to indicate that the
respondent was carrying out its obligations under the agreement,
even as it saw them, in a haphazard and cavalier fashion, we are
unable, under all the circumstances , to find that the refusal to rein-
state on July 12 all the striking employees or to reinstate those whose
positions were then held by non -strikers and remove such non-strikers
constituted a discrimination against such persons and thus an unfair
labor practice within the meaning of Section 8 ( 3) of the Act. The
allegations of the complaint with respect to the refusal to reinstate
the 230 employees named therein will therefore be dismissed.
E. Ellcland Leather Workers' Association, Inc.
On July 2, a group of employees, including Del Allen, William
Searl, Roy Rice, and Frank Surina, communicated with Williams
and asked his advice concerning the establishment of a labor organ-
ization for the respondent's employees. On the morning of July 5,
Williams advised the men that it would be preferable to have an
incorporated organization. He was instructed to draw up the papers
necessary for incorporation. Beginning at 9 o'clock on the same
morning and continuing throughout the day groups of employees
came into Williams' office and signed the articles of incorporation.
Williams explained to them that the organization was to be admin-
istered by the employees themselves and that by signing the articles
is In excluding such evidence, the Trial Examiner was in error In view, however, of
our finding with respect to the alleged discriminatory refusal to reinstate 230 employees,
the error is not prejudicial.
540 NATIONAL LABOR RELATIONS BOARD
they became charter members, On July' 6 a meeting was held at
the school auditorium at which Williams read the articles and made
them available for signature . It was testified that by July 7 over
600 men had signed the articles . Williams then, drafted -a letter to
the respondent advising it that the Association represented a ma-
jority of the employees and requesting that it recognize the Asso-
ciation as the collective bargaining agency for the employees. The
letter was signed by the directors of the Association , Allen, Searl,
Paul VanCise, Ned Kizer , and Roy Rice, and delivered to -the
respondent on July 8.
On July 9 Williams informed Prindle that the Association wished
to enter into a collective bargaining agreement with the respondent.
He was referred to Morgan, the respondent's counsel . At a meeting
of the Association on July 13, a draft of the agreement prepared by
Williams was approved. The agreement was signed the- same eve-
ning by William P. Ellison, a director of the respondent, and the
directors of the Association who had been elected temporary officers.
The agreement provided for the recognition of the Association and
the arbitration of disputes.
At subsequent meetings delegates were appointed to attend tho
convention " of the Independent Federation of Labor at Hershey,
Pennsylvania, and 'the Association affiliated with it. On August 26
Williams received a certificate of registration of the Association.)
On August 29 permanent bylaws were adopted. On October 19 the
Association elected permanent officers, Allen being elected president,
Sear), vice president, and Rice, financial secretary. The main fea-
tures of the bylaws are that membership is limited to non-executive
employees of the respondent; that supervisory employees shall be
"non-active members and . . . not entitled to a vote on any
question or policy of the Association and shall be ineligible for ap-
pointment to any office or committee" but shall "be entitled to share
in the benefits of the Association as fully as active members"; and
that grievances shall first be presented for adjustment, through ap-
propriate committees, to the foreman, the superintendent, and the
management, in the order named, and in the absence of a settlement;
to arbitration.
Many of the foremen became "non-active" members of the Associ-
ation. The record shows that one foreman acted as a member of
the bylaws committee, although it was testified that his position at
Is A protest against the approval of the Association's articles filed by the Union with the
Tioga County Court was overruled by Judge Crichton who signed a decree approving
the articles . On October 7 the Supreme Court of Pennsylvania dismissed the Union's
petition for supersedeas , although at the conclusion of the hearing in this case it had not
yet ruled on the merits.
I
DECISIONS AND 'ORDERS 541
the plant was not known when he was appointed to the committed
and that he was thereafter removed.
It was also testified that notices for Association meetings were
posted on the time clocks within the plant.
The complaint alleges that the respondent brought about the estab-
lishment of the Association, dominated and interfered with its ad-
ministration and operation, and contributed financial and other
support to it.
The record indicates that the first step in the establishment of the
Association was the circulation of the papers within the plant re-
garding preference for a local organization. We have seen that. su-
pervisory employees acquiesced in and, in some instances, partici-
pated in this action, and some even asked employees to sign, thus
indicating the desires of the respondent. The next step involved
the holding of a "loyalty" meeting planned by Kilburn and the for-
mation of the Elkland Leather Workers' Association, functioning as
a back-to-work or "restore-the-soak" movement. It will be recalled
that the back-to-work petition, signed by the Association, denounced
the C. I. 0. and expressed loyalty to the respondent, and that its
presentation to the respondent was followed by a resumption' of the
soak. The final 'step was the formal organization and incorporation
of the Association. It is contended that the original Association
merely functioned as the back-to-work movement, ceased to exist
upon accomplishing its purpose, and was in no way connected with
the present incorporated Association. All the circumstances in the
case lead to the conclusion, however, that the incorporation of the
Association was merely the final stage in the establishment of a
"local" organization. Allen and Searl, who signed the back-to-work'
petition as officers of the original Association, became officers' of the
incorporated Association. Williams who was secretary of the former
became counsel for the latter. It is certainly unlikely that the em-
ployees would see any distinction between the two, organizations,
bearing the same name and having the same leaders.
From the whole record it is clear that the incorporated Association,
in existence at the time of the hearing, came into being in response,to
the respondent's wishes and as a result of the anti-union campaign
brought about and stimulated by the respondent.
The fact that many foremen became members of the Association
and that notices for Association meetings were posted on the time
clocks within the plant undoubtedly served further to impress upon
the employees the respondent's approval of the Association and dis-
approval of the Union. It is true that the record does not show
any direct participation by the respondent in the organization and
administration of the Association as incorporated other than mem-
542 NATIONAL LABOR RELATIONS BOARD
bership therein by foremen. But the Board has recognized on a
number of occasions that an employer may lead others to bring into
existence an organization which is favorable to his wishes, and has
held that such conduct on the part of an employer is likewise pro-
hibited.
Upon all the evidence we cannot believe that the Association has
been freely selected by the employees, unfettered by company inter-
ference. We must conclude that the Association is a .result. of the
respondent's hostility to the Union and the anti-union campaign
attributable to it.
We find that the respondent has dominated and interfered with
the formation and administration of Elkland Leather Workers' As-
sociation, Inc., and has thereby engaged in unfair labor practices
within the meaning of Section 8 (2) of the Act.
F. The alleged discriminatory termination of employment of 28
named individuals
The complaint, as amended, alleged that the respondent, in or
about June 1937, terminated the employment of 28 named individuals
and has since refused to reinstate them because of their union mem-
bership and activity.
Rush Woodbeck and John A. Creeley. Woodbeck had worked for
the respondent approximately 32 years. At the time of his lay-off he
was employed in the rolling loft. He is married and has one daugh-
ter. He testified that he had never been laid off before, that he had
formerly held the position of foreman, and that, to his knowledge,
only 1 employee out of the 188 in the loft had greater seniority.
Woodbeck started "talking union" in the fall or early winter of
1936. He was in the group which first began organizing the plant
in May 1937. He testified that Mitchell, his foreman, heard him
talking about the Union although he never molested him.
On May 29 Woodbeck, together with two other rollers, William
Baker and Kidon Sayre, was laid off. Mitchell offered Woodbeck
no explanation other than saying, "I have to lay you off."
Creeley, also employed in the loft, had worked for the respondent
for 8 years. According to his testimony, he had never been laid off
during the past 7 years. He has a wife and seven children.
Creeley belonged to the original organizing group. He testified
that he was seen talking to Drummey by Prindle and Kyof ski.
Creeley had obtained permission to be off on Saturday, May 29,
and Monday, May 31. He reported, however, on May 31. Jesse
Jones, the assistant foreman, told him he was glad he came to work,
because they were short a roller. A few minutes later Mitchell told
DECISIONS AND ORDERS 543
him he had to lay him off. Mitchell at first declined to give any
reason, and then he said that business was slack and he had to lay
off some of the employees. Creeley inquired whether he was laying
off the older men. Mitchell did not answer and walked away.
The following testimony given by Louis Cevette, an employee in
the shipping department, is significant : On about June 13 or 14, when
Cevette was at Prindle's house, Prindle asked him whether several
men, including Creeley and Woodbeck, were active in the Union
and how many employees they had signed up.
It was testified that about May 25 the respondent received a large
order for unfinished leather, thus diminishing the number of hides
to be finished and necessitating the lay-off of a number of rollers.
Mitchell testified that Woodbeck, Baker, and Sayre were laid off be-
cause they had small farms.
Upon all the evidence credence cannot be given to the respondent's
contention that the real reason for the lay-off of Woodbeck is that
he had a farm. It is asserted by the respondent that whenever it
is necessary to reduce the staff, its policy is always to lay off single
men first. There is no evidence that except in this instance the
respondent selected for lay-offs married, employees who owned farms.
Moreover, although a system of seniority is not applied in the busi-
ness of the respondent, it is only reasonable to expect that some spe-
cial consideration would be given to a man like Woodbeck who had
been in the respondent's employ for 32 years and who was admittedly
a competent workman. It is true that two others who had farms,
Baker and Sayre, were also laid off. But there is no evidence as to
their family status, competence or length of service.
Mitchell testified that in making the lay-offs in connection with the
order for unfinished leather Creeley was picked, because he was an
irregular worker who stayed away from work about 3 or 4 days after
every pay day, and had thus taken off 271/2 days in the 4 months
prior to May 31. Mitchell further testified that Creeley had pre-
viously been warned about his conduct, had been laid off about 2 or
3 years before for being drunk, and had been retained at Prindle's
suggestion because of his large family. It appears, however, that
Harry Doran, who replaced Creeley on June 1, was also an unsteady
worker and had for that reason been laid off early in January 1937
for about 10 days or 2 weeks. Mitchell testified that Doran was
steadier after he had thus been penalized but not too steady.
We are not convinced that the reason for Creeley's lay-off was his
irregularity. It is difficult to believe that his employment would not
have been terminated ]on,)- prior to May 31 if he had been as irregular
as contended by the respondent. Moreover. it is odd that at this time
no consideration was given to Creeley's large family, and that an
544 NATIONAL LABOR RELATIONS BOARD
extra roller who was also irregular was retained and placed on
his job.
On the basis of all the evidence we find that Woodbeck and Creeley
were in fact laid off because of their affiliation with and activity in
the Union. We find that the respondent discriminated in regard to
hire and tenure of employment, thereby discouraging membership in
a labor organization, and it interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
During the strike, Woodbeck received from the respondent three
letters offering him work. In the last letter, which he received the
last part of August or the first of September, he was offered his
former position. At the time of his lay-off, he was averaging about
$60 for a 2-week period.
During the strike, Creeley received three letters from the respond-
ent offering him, work, the first one in the latter part of July and the
last one August 27. At the time of his lay-off he was averaging
about $60 every 2 weeks.
James Potter. Potter had been in the respondent's employ for 10
years. He testified that he had never during that time been laid off
because of slackness or curtailment of production and that he had
never received any complaints concerning his work. About 3 weeks
before his lay-off on June 2 or 5, he was transferred at his own
request from the shipping department to the "beam house" where he
worked on. pickled bellies. Potter is married and has a child;
On June 2 Floyd Smith, his foreman, told him there was no more
work and laid him off. Smith advised him to see Kyofski. Potter
was referred by the latter to Norton, foreman of the shipping depart-
ment, but did not meet any success in securing a transfer.
Potter testified that he joined the Union on June 3 and was active
in signing men up with the Union. There is no other evidence of
his union activity, however, and it does not appear that he was a
member of the organizing group.
Prindle testified that Potter was laid off with the whole pickled-
belly crew because the respondent at that time discontinued the manu-
facture of pickled bellies.
Upon the evidence in this case we find that the respondent did not
discriminate against Potter in regard to hire and tenure of employ-
ment, thereby discouraging membership in a labor organization.
Edward Maxwell and Louis Cevette. On June 19 and 21, after the
respondent discontinued soaking hides, about 13 single men were
laid off from the shipping department in order to permit the transfer
of married men from the "beam house" which would be shut down
DECISIONS AND ORDERS 545
in several days. Among those laid off on June 19 were Maxwell and
Cevette. -
` Maxwell had been in the respondent's employ on and off for about
25 or 26 years. He is single but he has dependents and, according to
his testimony, has always been treated as a married man.
Maxwell had belonged to the organizing group, had, served on the
committee which unsuccessfully endeavored to procure a hall for
union meetings, and was active in soliciting membership in the Union.
Charles Norton, the foreman of the shipping department, who had
been informed about Maxwell's activity within the plant, warned him
not to "carry it too far" for his own good. Maxwell testified that
about a week-before he was laid off, Norton net him in the street and
said, "There is that C. I. O. organizer over there. Go over and talk
to him and see what he has to say. Don't sign up because Prindle is
going to fire everybody who signs up." He also testified that on
about June 17 Norton remarked to him, "Clark Prindle thinks you
are pushing the C. I. O. down here too heavy,. . . Clark thought you
would help us organize a company union." -
When he was laid off Maxwell remonstrated that he had dependents
and was always classed as a married man. His foreman replied;
"Well, that is not my doings."
Louis Cevette, is single and had worked fair the respondent on and
off for-5 years He joined the Union on June 3 and was active in
soliciting -members.
Cevette testified to the followw•nig incident: On about June 12 lie
met Prindle in Skip Spencer's saloon. Prindle treated him to a drink
and said, "I understand you are getting some of the boys to sign
up . . ." He then said he wondered why they did not have a union
of their own. As already indicated, the following night or the night
after, when Cevette was at Prindle's house, Prindle inquired whether
Creeley, Woodbeck, and Maxwell were-active and how many men they
had signed up. He then speculated upon whether the men would sign
again if the application cards' were lost. The next day Dempsey, the
master mechanic, said to Cevette, "What about last night? . . . Do
you really think you can get hold of these cards," and suggested that
Cevette might take the cards away from the men who had custody
of them by getting them drunk. When they met in town that night
pursuant to Dempsey's suggestion, Cevette convinced Dempsey that
-the idea was too iisky.
Prindle denied talking to Cevette in Spencer's saloon. He testified
that Cevette came to his house under cover of night and requested that
the curtains be drawn because he did not want other employees to see
him. Cevette then said he was "getting sick and tired of this union
business" and suggested the possibility of obtainiu the union cards
546 NATIONAL LABOR RELATIONS BOARD
and burning them. But Prindle said, "Don't try to hook me," and
refused to have anything to do with the suggestion.
Dempsey also denied Cevette's story. He admitted, however, that
he asked Cevette whether his father and two uncles, who worked
under his (Dempsey's) supervision, belonged to the Union, because
they held important positions in the maintenance of the fire-protec-
tion system in the plant and he wanted to know whether they would
go 'on strike.
Harvey Roach, an employee in the shipping department, testified in
rebuttal that shortly before the strike was called on June 26, Norton,
the foreman, said, "If any of you fellows figure on going out on strike,
you will be black balled like Ed. Maxwell and Louis Cevette."
Norton testified that, in view of the shortage of shipping orders, he
was instructed by Prindle to lay off single men in the shipping depart-
ment and thus provide work for married men in the "beam house."
Accordingly, he laid off all the single employees with the exception of
two, Gus Sodenberg, who did sorting work and could not be replaced
easily, and John Curtis, who was thought to be a married man.
Among the men thereafter transferred from the "bean house" was
Blair Clement, who told Norton that he was engaged to be married.
Although there is no evidence that the general lay-off in the shipping
department was directed against union members, it seems to us that
some consideration would normally have been extended to a man like
Maxwell who had been in the respondent's employ for 25 or 26 years
and was, because of his dependents, always classed as a married man.
On the basis of the whole record, we find that Maxwell was laid off
because of his union membership or activity. We find that the respond-
ent discriminated in regard to hire and tenure of employment, thereby
discouraging membership in a labor organization, and it interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Upon all the evidence we find that the respondent did not dis-
criminate against Cevette in regard to hire and tenure of employ-
ment, thereby discouraging membership in a labor organization.
At the time of his lay-off Maxwell was earning about $48 every 2
weeks. He received one letter offering him work but not at his former
position.
Hiram Davis and Elwin Wright. Davis and Wright were laid off
on June 23 when the "beam house" was shut down because of the
stoppage of the soak.
Davis is married and had been in the respondent's employ 71/2
years. He was a member of the organizing group and joined the Union
the first week in June. From June 15 he held the position of financial
secretary in the Local. He testified that although other "beans house"
DECISIONS AND ORDEItS 547
employees had been transferred he was neither offered any work nor
asked whether he wanted to work elsewhere.
Wright had worked for the respondent for 11 years. He is married.
He joined the Union about the first of June and was active in soliciting
members. According to his testimony both Russell Stebbins and Floyd
Smith, the foremen of the "beam house," knew of his union activities
through his conversation with them concerning the Union.
Wright testified that, upon being laid off, he complained to Stebbins
that others were placed on different jobs whereas he was not, although
he had worked at the plant a long time and had a large family. Steb-
bins replied, "Well, you have talked too much about union; I am
afraid I can't do it." Also, about the same time., Del Allen, who
subsequently became president of the Association, said to him, "I
think if you would join up with the company union and join up with
the vigilante committee, we could place you somewhere else in the
tannery, and you wouldn't get laid off; you would have steady work
all the time." Wright also testified that no union men in the "beam
house" were transferred to other departments.
Prindle testified that six men were transferred from the "beam
house" to the shipping department on June 24, four on June 25, and
one on June 26. It is significant that the names of only two of these
employees appear in the union application cards submitted in evi-
dence.14 One of these two, however, withdrew from the Union on
June 26 and was transferred on the same day. Another employee
transferred was Paul VanCise, who was active in organizing the
Association and is now its recording secretary.
There is no evidence that the employees who were transferred had
larger families or greater seniority than Davis and Wright.
Although, as already noted, the respondent did not apply the system
of seniority, it is reasonable to believe that employees who had served
as long as Davis and Wright would normally be given greater consid-
eration than younger employees.
On the whole record we find that Davis and Wright were laid off
and were not transferred to other jobs because of their union mem-
bership and activity. We find that the respondent discriminated in
regard to hire and tenure of employment, thereby discouraging mem-
bership in a labor organization, and it interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
At the time of their lay-offs Davis and Wright were each averaging
about $52 every 2 weeks.
"John Russell is another of the employees transferred There is an application card
bearing the name of John H. Russell but as an employee in the "loft." Apparently,
therefore , the two are not the same.
11 7213-39-vol. 8-36
548
NATIONAL LABOR RELATIONS BOARD
Gerald Short. Short was employed in the outside department as a
carpenter on company houses. He himself testified that he was not
laid•off or discharged. He worked on June 25. He had a day off on
June 26 and did not return.
- We find that the respondent did not discriminate against Short in
regard, to hire, and tenure of employment -thereby discouraging
membership in a labor organization.
' Galen Brownell. Prior to his lay-off Brownell had worked for 3
months in the outside department as a carpenter on company houses.
He testified that he joined the Union about June 1 and was active.
On June 19, Kilgren, his foreman, said to him, "You are all done"
and gave him his pay check in full. Gerald Short testified that Kil-
gren' told him that Brownell and Charles Wilson, another carpenter,
were laid off because they had signed up with the Union. The record
shows, however, that Wilson was not a union member.
Kilgren denied that he ever attributed Brownell's lay-off to his
union membership. He testified that he was ordered to stop working
at that time and that he laid off Brownell and Wilson because they
were the youngest men in the gang, Brownell being only a temporary
employee.
There is no evidence other than Brownell's statement that he was an
active union member.
Upon,'the evidence in this case, we find that the respondent did not
discriminate against Brownell in regard to hire and tenure of employ-
ment thereby discouraging membership in a labor organization.
Jesse Russell. Russell was employed in the outside department as
a common laborer. He joined the Union about 2 weeks before the
strike. He testified that on June 25 George Davenport, assistant fore-
man of the outside department, told him he was aware of his union
membership and that he had better change or he might not be working.
The record shows, however, that Russell struck on June 26 and was
not discharged or laid off.
We find, therefore, that the respondent did not discriminate against
Russell in regard to the hire and tenure of his employment thereby
discouraging membership in a labor organization.
-George W. Button. Button, an employee in the scrub house, con-
tinued to work after the strike was called. He testified that a few days
after the commencement of the strike, he requested Mac Chilson, one
of his bosses, for a transfer from the night shift to the day shift.
Ghilson replied, "George, you are badly fooled if you think we are
going to favor you C. I. O. guys." Button worked for about 2 weeks
thereafter and left when his mother became ill. He did not return. -
Upon the evidence we find that the respondent did not discriminate
against Button in regard to hire and tenure of his employment thereby
discouraging membership in a labor organization.-
DECISIONS AND ORDERS 549
George Bixby. For about 6 months prior to June 25 Bixby had
been employed in the water-softening department under the super-
vision of Theodore Oberlander, the chemical engineer.
Bixby joined the Union on about June 18. He testified that on
June 25, Farnham, an older employee in the same department, said to
him, "Oberlander said for you not to come back ... we can't trust
you since you joined the C. I. 0." He further testified that on, the
evening of June 25 Oberlander tried to communicate with him with
respect to - returning to work the following day, but that when he
appeared at the plant shortly after the strike began, Oberlander said
to him, "You can go over to Chris Irons; . . . most-of the fellows
went to Chris Irons and signed off from the C., I. O. . _ . You can
go over and sign up, and if you want to, then you can come back to
work." Bixby declined to do so.
Oberlander denied the conversation, attributed to him by Bixby.
He testified that Bixby was not laid off or discharged; that in view
of the imminence of the strike and the great importance of the work
in his department, he needed reliable men on all shifts ; and that
he therefore instructed Farnham, another employee, to replace Bixby
temporarily. He admitted that prior to the strike Bixby's services
had been satisfactory. Oberlander further testified that he had in
fact told Bixby on the night of June 25 that he was not discharged
but that there was simply a temporary change in working shifts,
that Bixby returned the following day after the commencement of
the strike and said that the Union ordered him not to work, and that
he (Oberlander) then said, "In that case I will have to get some one
else to take your place."
We do not believe that the evidence sustains the- -allegation that
Bixby's employment was terminated because of his union affiliation.
Although we credit Bixby's testimony that he was urged by Ober-
lander to withdraw from the Union, we also believe that Bixby did
not wish to return to work but chose to participate in the strike. We
find that the respondent has not discriminated against Bixby in
regard to hire and tenure of employment thereby discouraging mem-
bership in a labor organization.
Rome Theodore Bixby. Rome Bixby had worked for the re-
spondent for about 6 or 7 years. At the time of his lay-off on June
27 he was employed as a night watchman.
He joined the Union about a week or two before the strike. He
testified that he made no secret of his membership and often talked
about it.
Bixby did not go out on strike but was laid off on June 27. Myers,
the foreman of the outside department, testified that he did not
believe Bixby was a member of the Union since he failed to go out on
strike and that he gave instructions to lay Bixby off because he needed
550 NATIONAL. LABOIt RELATIONS BOARD
a reliable nian during the strike . He further testified that Bixby
was very nervous and unreliable , that he had been warned with re-
gard to these characteristics a number of times since they were first
observed about 2 years before , and that Charlie Thomas, the sub-
foreman, was instructed to lay him off before the strike , but had not
done so because he felt sorry for him . Myers did not know, how-
ever , whether his nervousness had interfered with his work during
the previous 2 years.
The evidence with respect to Bixby's unreliability and incom-
petency is not entirely convincing , and it may be that Bixby was iii
fact laid off because the respondent feared that he was too sympa-
thetic towards the Union 's cause to be a trustworthy watchman
during the strike. However, on the basis of the evidence , we do not
feel warranted in making such a finding since Bixby's failure to go
out on strike lends support to Myers' testimony that he was unaware
of Bixby's union membership at that time . It is therefore unneces-
sary to decide for the purposes of this case whether laying off a
watchman during the strike for this reason constitutes an unfair
labor practice within the meaning of Section 8 ( 3) of the Act. We
find,that the respondent has not discriminated against Bixby in re-
gard to hire and tenure of employment thereby discouraging mem-
bership in a labor organization.
During the strike Bixby received three letters from the respond-
ent offering him work, the last one on September 23. He did not
return to work pursuant to these offers because he did not wish to be
a strikebreaker.
Employees in the cut -sole department . Nine of the men named in
the complaint as having been discriminated against are employees in
the cut-sole department . These are Harold Folnsbee, Dominic Ce-
vette, and Harold Creeley , who were laid off on June 19, and Ernest
Stocum, Anthony Zajackowski , Wayne Hendrickson , Lee Russell,
Anderson Wyatt, and Charles Forsberg , who were laid off on June 26.
Pursuant to a program of curtailment in the cut -sole department
occasioned by a decline in the shoe market and excess inventory, 23
employees were laid off on June 5, 15 more on June 19, and the
remaining 22 on June 26. On June 26 the men were notified that
the department would be shut down for 2 weeks . There is no evi-
dence that there was any discrimination between union and non-
union men in these lay-offs. Nor is there any evidence of any dis-
crimination when operations in the department were resumed on June
28. In fact , Lee Russell testified that five or six of those who returned
to work were union members.
On the testimony we find that the respondent did not discrim-
inate against these nine men in regard to hire and tenure of em-
DECISIONS AND ORDERS 55L
ployment thereby discouraging membership in a labor organization.
Jesse Bartoo, Caspar Cafl°, Raymond Ray, Clarence White, Merle
Davis, and William Rumberger. The only evidence with respect to
Bartoo is that the last day he worked was May 3, 1937. Carr was
never laid off, but walked out on strike and did not return. No.
evidence was offered as to the other four employees.
On the record we find that the respondent did not discriminate-
against these employees in regard to hire or tenure of employment
thereby discouraging membership in a labor organization.
G. The alleged refusal to bargain
1. The appropriate unit
The complaint, alleges that all of the production, employees of the
respondent constitute a unit appropriate for the purposes of collec-
tive bargaining. The respondent does not assert that any other unit
is the proper one. All the production employees are apparently
eligible to membership in the Local.
Under the usual rule, supervisory an([ clerical employees-are ex--
eluded from the unit of production workers in the absence of any-
evidence with respect to their inclusion. We find that the produc-
tion employees of the respondent, excepting supervisory and clerical
employees, constitute a unit which is appropriate for the purpose of
collective bargaining, and that such unit insures to the 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 Union of the majority in the appropriate-
unit
Drummey testified that on June 16 Massida turned over to hint 461
union application cards, which he classified according to the depart-
ments in which the men whose names appeared on the cards were-
employed. He proceeded to secure further signatures and,-=according-
to his testimony, had over 600 on June 22, although he could not
state the precise number. He further testified that when he was coin-
pelled to leave Elkland on that day he forgot to take with him 180
or 200 unclassified cards which he could not, thereafter find. It does
not appear that any record was ever made of the names of the em-
ployees who had signed these cards. It is entirely possible that indi-
viduals who had signed the allegedly lost cards thereafter signed
other cards which are among those submitted in evidence. The inclu--
sion of these lost cards, therefore, for the purpose of determining-
whether the Union represented a majority is not warranted.
552 NATIONAL LABOR RELATIONS BOARD
. As already stated the respondent employed 944 production, em-
ployees prior to the strike . There were submitted in evidence 490
union application cards in addition to 13 cards , which were not sub=,
mitted but were conceded to be valid by counsel for the respondent-,
thus making a total of 503 cards. It appears , however, that at least
,8 of these cards were signed after June 26, and that 74 of the em-
ployees who had signed these cards withdrew from the Union on
June 25 and 26. It also appears that 7 of the cards are duplicates, 9
bear the signatures of persons who had never been in the respondent's
employ, 11 have the names of employees who had not been on the
respondent 's pay rolls since April 1 , 1937, and at least 6 \c ho were
not on the pay roll at the time of the strike. Thus, even assuming
that the 74 employees who withdrew from the Union may properly
be counted , there, nevertheless , remains a total of only 462 , consti-
tuting less than a majority of the employees in'the appropriate unit.
On the basis of all the evidence we do not believe that the burden
of proving that the Union had been designated by a majority of the
employees in the appropriate unit as their representative for the
purpose of collective bargaining has been sustained . It is therefore
not necessary -to consider the other issues raised by the allegations
made in the complaint that the respondent had engaged in unfair
labor practices within the meaning of Section 8 (5) of the Act.
These allegations will be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON C,03IMERCE
We find that the activities of the respondent set forth in Section
III, C , E, and F above, occurring in connection with the operations
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic , and commerce among the several States, and
tend to lead and have led to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
We have found that Elkland Leather Workers' Association, Inc.,
came into existence as a result of the respondent 's unlawful course of
conduct and was dominated and interfered with by the respondent.
Such an organization cannot, in view of the circumstances , operate
as a true representative of the employees. We shall therefore order
the respondent to withdraw recognition from it and to disestablish
it as such representative . Further, the respondent must cease to give
effect to its contract with the Association , which is void as made with
an organization not entitled to represent the respondent 's employees.
The respondent has discriminated in regard to the hire and tenure
DECISIONS AND ORDEJIS 553:
of employment of Rush Woodbeck; John A. Creeley, Edward Max-
well, Hiram Davis, and .Elwin Wright. Normally we would order
the respondent to reinstate these employees and give them back pay
from the date of their lay-off until the date of the offer of reinstate-
ment.', However, Rush Woodbeck was offered his former job during
the strike. John A. Creeley was also offered reinstatement and there
is no'evidence that such offer was not to his former position. These
two employees, by refusing to accept the offer of reinstatement, have
indicated their desire to participate in the strike and have been, from
the date of such offer, in the same position as the other striking em-
ployees. Furthermore, since the Trial Examiner failed to find in his
Intermediate Report that these five employees were laid off because
of union,activities, the respondent should not be required to pay any
of them back pay from the date of the receipt of the Intermediate
Report (November 30, 1937) to the date of this Decision. Our order
with, respect to these five employees will be as follows : Edward Max-
well, Hiram Davis, and Elwin Wright shall be offered immediate
reinstatement to their former positions and shall be given back pay
from. the date _ of their lay-offs to November 30, 1937, and from the
date _of ,this Decision to the time of such offer of reinstatement, less
any amounts earned by them during such periods. Rush Woodbeck
and John A. Creeley shall, as in the case of the other striking em-
ployees and in the manner set forth below, be offered reinstatement,
upon application, to their former or substantially equivalent posi-
tions, and shall be given back pay from the date of their lay-offs to,
the date they were offered reinstatement during the strike and from
the date of any refusal of reinstatement in accordance with our order
to the date of reinstatement, less any amounts earned by them during
such periods.
As we have seen, the strike at the respondent's plant was called
on June 26 when the anti-union campaign brought about and stimu-
lated by the respondent was at its height. Strike action was evidently
thought necessary to halt the demoralization of the union members.
In the words of Backes, the strike "was to show our strength." Ac-
cording to Massida's testimony, strike action was precipitated on June
25 because of the lay-offs and the fear that "if they had delayed action
much longer, he (Prindle) might have gotten rid of the leaders and
broken the morale of the organization." On the basis of the whole
record, we believe that the Union, faced with the anti-union conduct
engaged in and provoked by the respondent, called the strike because
it conceived that no other course remained open to it. The strike was
called off for 1 day on July 11. Such action was taken, however, pur-
suant to the strike settlement agreement in which, as we have seen,
the minds of the parties never met. It is clear that the strike, which
554 NATIONAL LABOR RELATIONS BOARD
was still in effect at the time of the hearing , was not a new strike
but a continuation of the one called on June 26.
The strike having been caused by the respondent 's unlawful course
,of conduct , we shall in accordance with our usual practice order the
respondent , upon application , to offer reinstatement to their former
or substantially equivalent positions to those employees who went out
on strike and have not since been fully reinstated . Such reinstate-
ment shall be effected in the following manner : All employees hired
after the commencement of the strike shall, if necessary to provide
employment for those to be offered reinstatement, be dismissed. If,
thereupon , by reason of a reduction in force there is not sufficient em-
ployment immediately available for the remaining employees, includ-
ing those to be offered reinstatement, all available positions shall be
distributed among such remaining employees in accordance with the
respondent 's usual method of reducing its force , without discrimina-
tion against any employee because of his union affiliation or activities.
Those employees remaining after such distribution, for whom no em-
ployment is immediately available, shall be placed upon it preferen-
tial list prepared in accordance with the principles set forth in the
previous sentence, and shall thereafter, in accordance with such list,
be offered employment in their former or in substantially equivalent
positions, as such employment becomes available and before other per-
sons are hired for such work.
Included, of course, among the ininiber of strikers to be reinstated
in accordance with our order are those employees who were laid off
prior to the strike because of the stoppage of the soak and the cur-
tailment in the cut-sole department , and who did not return to work
during the strike upon resumption of operations in their depart-
ments, but chose to participate in the strike. Also to be included are
George Bixby, who, as we found, went out on strike on June 26, and
Rome Theodore Bixby who was laid off after the commencement of
the strike and thereafter refused to return to work when asked
to do so.
The record shows that the strike was accompanied by some vio-
lence. On July 6 stones were thrown at automobiles of "loyal" em-
ployees on their way to the plant, and windows were broken. Seven
employees were arrested as a result and charged with rioting , incit-
ing to riot , and participating in an "aggravated riot." They were
taken to the Elkland jail, and bail was fixed. Thereafter they were
transferred to the county jail. Although it is not altogether clear,
the record indicates that most of these men were released on their
own recognizance. At the time of the hearing the men were awaiting
trial . The Board has on former occasions considered evidence of
convictions and pleas of guilty to acts of violence committed by indi-
DECISIONS AND ORDERS
555,
vidual strikers as relevant on the issue whether it is equitable to order
their reinstatement. Without condoning violence by any party to a
labor dispute, we do not consider the offenses charged to these seven
employees of sufficient gravity to warrant their exclusion from our
order of reinstatement.
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. National Leather Workers' Association, National Leather Work-
ers' Association, Local No. 37, and Elkland Leather Workers' Asso-
ciation, Inc., are labor organizations, within the meaning of Section
2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of Elkland Leather Workers' Association, Inc., the respon-
dent has engaged in and is engaging in an unfair labor practice,
within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Rush Woodbeck, John A. Creeley, Edward Maxwell, Hiram
Davis, and Elwin Wright, and thereby discouraging membership in
a labor organization, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the
Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within, the =meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. The respondent has not engaged in and is not engaging in un-
fair labor practices within the meaning of Section 8 (3) of the Act
with respect to James Potter, Louis Cevette, Gerald Short, Galen
Brownell, Jesse Russell, George W. Button, George Bixby, Rome
Theodore Bixby, Harold Folnsbee, Dominic Cevette, Harold Creeley,
Ernest Stocum, Anthony Zajackowski, Wayne Hendrickson, Lee Rus-
sell, Anderson Wyatt, Charles Forsberg, Jesse Bartoo, Caspar Carr,
Raymond Ray, Clarence White, Merle Davis, and William Rum-
berger, and with respect to the alleged refusal to reinstate 230 em-
ployees named in the complaint in this case.
7. The respondent has not engaged in and is not engaging in unfair
labor practices within the meaning of Section 8 (5) of the Act.
.556 NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that-the re-
spondent, Elkland Leather Company, Inc., and its officers, ,agents,
successors, and assigns, shall: -
1. Cease and desist from :
(a) Discouraging membership in National Leather Workers' Asso-
ciation or any other labor organization of its employees, by termi-
nating the employment of its' employees, or otherwise- discriminating
iii _ regard to their hire or tenure of employment' or any `term or
•cbndition of their employment;
(b) Dominating or interfering with the administration of Elk=
land Leather Workers' Association, Inc.; or with the formation "or
administration of any other labor organization' of 'its employees,' or
-contributing support thereto ;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their - rights- to self-organization, to
form,, join, or "assist labor organizations, -to bargain' collectively
through representatives of their 'own choosing, and to engage in'con=
•certed, activities for' the, purpose of collective bargaining-or other
mutual' aid and protection, as guaranteed in Section 7 of the Act;
(d) Giving effect to its contract with Elkland Leather Workers'
Association, Inc.
'-2. Take the following affirmative action i^hich -the Board finds` will
'effectuate the policies=of the Act:
(a) Withdraw all recognition 'from Elkland Leather Workers'
:Association, Inc:, as a representative of any of its employees 'for the
purpose of dealing with it concerning grievances, labor' disputes,
wages, rates of pay, hours of employment, or conditions of work,
and completely 'disestablish said Association as such 'representative;
(b) Offer to Edward Maxwell, Hiram Davis, and Elwin 'Wright
immediate and full reinstatement, -respectively, to their former' po-
sitions without prejudice to any `rights and privileges previously en-
joyed by them; and` m ake them whole for any loss of pay they have
suffered' by reason of their lay-off by payment to each of them, re-
spectively, of a sum equal to that which each of them would nor-
mally have earned as wages during the periods from the dates of
their respective lay-offs to November 30, 1937, and from the date of
this Decision to the time of' such 'offer of reinstatement , less any
amount earned by each of them, respectively, during such periods ;
(c) Make whole Rush Woodbeck and John A. Creeley for any
loss of pay they have suffered by reason of their lay-off by payment
to each of them, respectively, of a sum equal to that which each of
DECISIONS AND ORDERS 557
them would normally have earned as wages during the period from
the dates of their respective lay-offs to the date they were offered
reinstatement, less any amounts earned by each of them, respectively,
during such period;
(d) Upon application, offer to those employees who went out on
strike on ' June 26 and thereafter, including Rush Woodbeck and
John A. Creeley, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges, in the manner set forth in
the section entitled "Remedy" above; and place those employees for
whom employment is not immediately available upon a preferential
list in the manner set forth in said section, and thereafter, in said
manner, offer them employment as it becomes available;
(e) Make whole the employees ordered in paragraph 2 (d) above
to be offered reinstatement for any loss of pay they will have suffered
by reason of any refusal of reinstatement or placement upon the
preferential list required by paragraph 2 (b) above by payment to
them, respectively, of a sum of money equal to that which each
would normally have earned as wages during the period from five
(5) days after the date of application to the date of offer of rein-
statement or placement upon the preferential list, less the amount,
if any, which each would have earned during that period;
(f) Post immediately notices to its employees in conspicuous places
throughout its plant, stating (1) that the respondent will cease and
desist'iri' the manner aforesaid; (2) that the respondent withdraws
all recognition from Elkland Leather Workers' Association, Inc., as
a, representative of its employees, and completely disestablishes it
as , such representative; and (3) that the agreement 'signed with
Elkland Leather Workers' Association, Inc., is void and of no effect;
(g)'Maintain such notices for at least thirty (30), consecutive days
from the date of posting;
(h) Notify the Regional Director for the Fourth Region' in' writ-
ing within ten (10) days from the date of this order 'what steps the
' 'respondent has taken to comply herewith.
And it is further ordered that the complaint be, and,
,
it'hereby ' is,
dismissed (1) in so far as it•alleges'that the respondent has discrim-
inated against persons other than,the five referred to in paragraph
2 (b) and (c) above, and (2) in so far as it alleges that the. respond-
ent has engaged in unfair labor `practices within the meaning of
Section 8 (5) of the Act.