Frederick H. Burnham Co.

National Labor Relations Board - Board DecisionsJan 27, 1940

19 N.L.R.B. 970 (N.L.R.B. 1940)

In the Matter of FREDERICK H. BURNHAM COMPANY and LOCAL No. 95, INTERNATIONAL GLOVE WORKERS' UNION OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, and MICHIGAN CITY GLOVE WORKERS' UNION, PARTY TO THE CONTRACT Case No. C-1313.-Decided January 27, 1940 Leather Glove Manufacturing Industry-Interference , Restraint , and Coer- cion: anti-union statements ; discrimination in distribution of dies used by employees in cutting leather-Company -Dominated Union: charges of, dis- missed-Discrimination : charges of , dismissed. Mr. Herbert N. Shenkin and Mr. Robert R. Rissman, for the Board. Crumpacker and Storen, by Mr. Mark Storen, of Michigan City, Ind., for the respondent. Mr. Thomas Durian, of Milwaukee, Wis., and Mr. John Miller, of Michigan City, Ind., for the Union. Mr. Frederick R. Levinstone, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Local No. 95, International Glove Workers' Union of America, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by Leonard C. Bajork, Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint 'dated February 15, 1939, against Frederick H. Burnham Company,' herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the complaint as amended alleged in substance that on or about May 6, 1938, the respondent re- 'Incorrectly designated in the charge and complaint as The Frederic Burnham Company. 19 N. L. R. B., No. 97. 970 FREDE'RIC'K H. BURNHAM COMPANY 971 fused employment to Anna Jones because she joined and assisted the Union, thereby discriminating in regard to her hire and tenure of employment and discouraging membership in the Union; that on or about June 20, 1938, the respondent, through its officers, agents, and persons acting in its behalf, dominated and interfered with the for- mation and administration of and contributed support to a labor or- ganization known as the Michigan City Glove Workers' Union, herein called the Independent; that the respondent on and after April 1, 1938, discouraged its employees from becoming or remaining members of the Union, and that by these and other acts the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On February 25, 1939, the respondent filed its answer denying that it had engaged in any unfair labor practices within the meaning of the Act. Pursuant to notice, a hearing was held at Michigan City, Indiana, from March 16 through 29, 1939, before Charles E. Persons, the Trial Examiner duly designated by the Board. The Board and the respond- ent were represented by counsel, the Union by representatives, and all participated in the hearing. The Independent was duly notified of the hearing and of various amendments made to the charge and the complaint, but it did not appear at the hearing, was not represented therein, and offered no evidence for the record. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner ruled on various motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no preju- dical errors were committed. The rulings are hereby affirmed. On June 26, 1939, the Trial Examiner filed an Intermediate Report in which he found that the respondent had not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act and that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7), of the Act, and accordingly recommended that the respondent cease and desist therefrom and that it cease giving recognition to and disestablish the Independent as collective bargaining representative for any of its employees. Thereafter the respondent filed exceptions to the Intermediate Report and a brief in support thereof. The Board has considered the exceptions to the Intermediate Report and, except as they are consistent with the findings,' conclusions, and order set forth below, finds them to be without merit. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Frederick H. Burnham Company, an Indiana corporation, is en- gaged in the manufacture and sale of leather work gloves and leather work mittens at Michigan City, Indiana. During the year 1938 it purchased approximately $185,000 worth of leather, cotton linings, thread, elastic wristings, binding and sundry miscellaneous materials, all of which were obtained from sources outside the State of Indiana. During the same year its sales amounted to approximately, $370,000, of which 99 per cent were shipped to destinations outside the State of Indiana. II. THE ORGANIZATIONS INVOLVED International Glove Workers' Union of America, Local No. 95, affiliated with the American Federation of Labor, is a labor organiza- tion admitting to its membership all production employees of the re- spondent, excluding clerical and supervisory employees. Michigan City Glove Workers' Union is an unaffiliated labor organi- zation admitting to membership only employees of the respondent, excluding supervisory employees. III. THE UNFAIR LABOR PRACTICES A. Inteerference, restraint, and coercion In the early part of March 1938, several employees of the respond- ent discussed possible organization of the respondent's employees with F. L. Ritchey, an A. F. of L. organizer, and held several informal meetings toward that end. The Union held its first organizational meeting on the evening of March 16, 1938, at the Labor Temple in Michigan City, Indiana. Before the commencement of the meeting several employees reported to Thomas Durian, a union official, that Matt Georg, foreman in charge of the cutters in the respondent's plant, was in Hudson's Tavern on the ground floor of the Labor Templee Ritchey thereupon went downstairs and advised Georg that his presence in the tavern served to intimidate employees from attending the meeting and was an interference with the self-organization of em- ployees guaranteed by the Act. Upon being requested to leave. the tavern,. Georg denied any, previ- ous knowledge of the union meeting and asserted that his presence in the tavern that evening was purely coincidental. It appears, however, that on several subsequent occasions Georg was seen driving his car FREDERICK H. BURNHAM COMPANY 973 back and forth in front of the Labor Temple while union meetings were in progress. On the morning following each of these meetings, Georg came to the workbench of Frank Smiertenly, an employee, and in substance stated, "I seen you downtown last night with Pigeon," referring to Stanley Golebiewski, an employee. Following the third or fourth of these subtle warnings from Georg, Smiertenly and Gole- biewski took a different route when going to the meetings. In view of 'Georg's admission that he was in the tavern on the night of March 16 and his failure to deny the conversations with Smiertenly the mornings following subsequent meetings, we find that Georg subjected employees attending union meetings to surveillance. In addition, Georg carried on an active campaign in the plant to discourage membership in the Union. Thus, on one occasion, he asked John Miller, president of the Union, the morning following the first organizational meeting of March 16, 'whether Miller had attended the meeting. When Miller replied in the affirmative, Georg stated, "If we '(the employees) intended to go on with this union, we should be sure that we put it through, or our name would be, mud around there." About 2 weeks later, Georg warned Joseph Pigeon,2 the union treas- urer, with profane embellishments, that unless the men forgot the Union "we will close the shop and move to Chicago." During this same period Georg advised Joe Kramer, a cutter, that if he were in Kramer's place he would not join the Union because Kramer "would never get any place by it." On another occasion, Georg warned Wil- liam Hagen and John Krueger, both of whom were union members and cutters, that if they ever joined the Union they would "be out of a job." Although he denied all of the foregoing conversations, Georg admitted that since considerable discussion was provoked by the Union's activities in the plant, and that since he customarily indulged in "small talk" with the men, it would have been unusual for him not to discuss the Union with them. The Trial Examiner, who observed the demeanor of the witness, found that the statements were made by Georg substantially as related by the Board's witnesses. We have reviewed the evidence and note that Georg's denials were for the most part equivocal in nature. In view of the clear testimony given by the Board's witnesses and the admission of Georg that he probably dis- cussed the Union with the men, we find that Georg made the fore- going anti-union statements attributed to him. Despite the foregoing indications of hostility, the Union made sub- stantial progress in enrolling the respondent's employees and suc- ceeded in arranging several conferences with John Burnham, the respondent's president, for the purpose of negotiating a contract. The 2 Joseph Pigeon is not the same person previously referred to as Pigeon , the latter being a nickname for Stanley Goleblewski. 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations reached an impasse, however, and culminated in a strike which commenced. on May 31, 1938. On the first day of the strike Burnham met with Miller and Pigeon, two of the union officers, and warned them that if the respondent were to accede to the wage in- creases-requested, "we might-just as well close up and I would go in the insurance business." It appears further that during this same con- ference Burnham asked Miller and Pigeon,why they went out and secured a stranger "to do business for them" and stated, "We are always here, willing to help you. Why didn't you come to us?" 8 We find that the respondent, by the foregoing acts and conduct of Georg and Burnham, has interfered with, restrained, and coerced its employees .in the exercise of the rights guaranteed in Section 7 of the Act. The complaint alleged that the respondent discriminated in the distribution of dies to glove cutters who were union members. It ap- pears that in cutting the leather for gloves, the respondent's cutters, who are compensated on a piece-rate basis, use two methods, clicker cutting and mallet cutting. Dies are used in both methods. In the latter method, also known as hand cutting, the die is struck with a mallet and in the former method a machine presses the leather down upon an open-face die and thus cuts the leather. It appears that when dies are in bad repair they do not cut cleanly and it is necessary for the cutter to use shears to straighten the rough edges, thus cut- ting down his production capacity. Several witnesses testified that prior to the formation of the Independent on June 22, 1938, it was the practice in the plant to place all glove dies on a die rack when not in use. As noted below, the respondent entered into a contract with the Independent on June 23. It was further testified that the union members continued this practice of placing unused dies on the rack until the date of the hearing, but that after June 23 the members of the Independent, instead of returning the dies to the rack, kept them behind their workblocks and covered them with leather. Foreman Georg meanwhile gave members of the Independent the newer dies, which cut a cleaner edge than those which he assigned to the union a Burnham's attitude toward the Union is apparent from his testimony at the hearing, when he stated : Yes, there have been many times when the employees have come up to me and asked for a raise . . . and sometimes it was granted and sometimes it was not. I almost always told them I liked their spunk and I was glad they came up and asked me. I knew they thought they, deserved it and it wasn't always possible for me to give it to them , but felt , by so asking me, they thought-I knew then they had the feeling that they could come to me about that or anything else that vas going on in the factory. Well, it was a little disappointing to me when they thought Mr. Durian could do more for them than I could. Q. Have you told them that ; any of the employees? A..I believe I have told-may possibly not in so many words, but I think I showed my disappointment that they would go - to him rather than to me about anything.' FREDERICK H. BURNHAM COMPANY 975 men. When the Independent members thus were permitted to retain the newer dies, the union members were effectually prevented from using them. On one occasion during this period Miller, the president of the Union, was using a good die when Foreman Georg ordered him to let Henry Bethke, a member of the Independent, use it. At about the same time the respondent secured several new sets of moccasin dies which were considered good cutting dies. One of these dies was given to Tom Georg, brother of Foreman Georg, and one to Bethke. When the dies were not in use these two men put them behind their workblocks so that they could not be used by union members. A short while later, Otto Schultz, a union member, com- menced work with a moccasin die that he secured from -the rack. Despite the fact that the dies were supposed to be generally accessible to all cutters, Georg accused Schultz of -taking the die from -his brother Tom's bench and ordered Schultz to turn it over to Tom Georg. The respondent denied that there had been discrimination and contended that all of its dies were as good as those of any other glove factory and were kept in good repair at all times. It is ad- mitted, however, that just before the dies are repaired the blades become dull and nicked so that they do not cut as clean as a die in good repair. In view of the anti-union acts and conduct, of Georg, previously noted, we are impelled to find that Georg discriminated. against union members in the assignment of dies in the manner described above, and that he did so in order to discourage union activity. We find that the respondent, by discriminating against union members in the distribution of dies, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged domination and support of the Independent After several conferences between the Union and the respondent,, the Union submitted a contract on May 6, 1938, for the respondent's approval. The Union was unable to prove its majority to the satis- faction of the respondent, however, and the parties agreed that a consent election should be conducted by the Board to determine whether or not the respondent's employees desired to be represented by the Union. The Union lost the election, which was held- on June 16, by a vote of 77 to 61. On the following day a self-constituted committee of six of the respondent's employees, including Franklin Weed, the only male clerk in the respondent's office, commenced to form the Independent. They retained Paul A. Krueger, a local 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attorney, who prepared a constitution, bylaws, membership applica- tion blanks, and a contract to be submitted to the respondent. The Independent held its first meeting on the evening of June 22, at which time it had enrolled 77 of the respondent's 139 employees. The next morning the Independent's executive committee, together with Krueger, conferred with Burnham at his office. The 77 appli- cation cards of the Independent organization were presented to Burnham, and after he was satisfied on this basis that the Inde- pendent represented a majority of the employees in the plant, a contract was submitted and was approved by Burnham. The contract thus entered into was in the main similar to that previ- ously submitted by the Union and had attached thereto a wage schedule consisting of 22 pages and which was a carbon copy of a list prepared and kept in the respondent's plant. Weed testified that he took the Union's proposed agreement from Burnham's desk, together with the wage schedule, and gave it to Krueger for use in preparing the Inde- pendent contract. Weed asserted that Burnham had no knowledge of his having taken the contract or wage schedule. The Trial Examiner in his Intermediate Report concluded, from these circumstances, that the respondent had made known to Weed the type of contract it would accept and Weed had conveyed this information to the Independent's attorney. On the basis of these facts, and the speed with which the Independent was formed and recognized by the respondent, the Trial Examiner further concluded that the Independent had been sponsored by the respondent. Although we do not agree with the Trial Ex- aminer's final conclusions, we cannot say that they are not supported in some measure by the evidence. The fact that the employees were willing to speedily accept the Independent as their collective bargain- ing agency, however, does not necessarily indicate that the organiza- tion is company sponsored or dominted. We do not believe that the evidence justifies a finding that Weed was acting under the sug- gestion of the respondent in forming the Independent, or that the respondent:has contributed support to it. We find that the respondent has not dominated or interfered with the formation or administration of, or contributed support to, the Independent. We will accordingly dismiss the allegations of the complaint in this respect. C. The alleged discriminatory discharge The complaint, as amended, alleged that on or about May 6, 1938, the respondent refused employment to Anna Jones because she joined or assisted the Union, thereby discriminating in regard to her hire or tenure of employment. The Trial Examiner concluded in his Inter- mediate Report that the respondent had not discriminated against FREDERICK' H. BU-RN'HAM COMPANY 977 Anna Jones and recommended that the allegations of the complaint relating to her be dismissed. The Union filed no exception to this recommendation. We have reviewed the evidence and agree with the Trial Examiner's conclusion. We will accordingly dismiss the com- plaint in so far as it alleges that the respondent discriminated.against Anna Jones. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from further engaging therein. We shall also order the respondent to take certain affirmative action which we deem necessary to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Glove Workers' Union of America, Local No. 95, and Michigan City Glove Workers' Union are labor organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed 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. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not dominated or interfered with the forma- tion or administration of, or contributed financial or other support to, Michigan City Glove Workers' Union, within the meaning of Sec- tion 8 (2) of the Act. 5. By refusing to employ Anna Jones the respondent has not en- gaged in an unfair labor practice within the meaning of Section 8 (3) of the Act. 978 DECISIONS ' OF NATIONAL TABOR REI; ATIORTS BOARD ORDER Upon- the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Frederick H. Burnham Company, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from in any manner interfering with, restrain- ing, 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 concerted activities for the purposes of collective bargain- ing and other mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action : (a) Post immediately in conspicuous places in its plant in Mich- igan City, Indiana, notices to its employees, and maintain such notices for a period of at least sixty (60) consecutive days, stating (1) that it will cease and desist as aforesaid, and (2) that its employees are free to become or remain members of International Glove Workers' Union of America, Local No. 95, and that it will not discriminate against any employee because of membership or activity in that organization ; (b) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days of the date of this Order what steps it has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (2) and (3) of the Act with respect to Michigan City Glove Workers' Union and in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Anna Jones.