The Muskin Shoe Co.

National Labor Relations Board - Board Decisions

Jul 5, 1938

8 N.L.R.B. 1 (N.L.R.B. 1938)

DECISIONS AND ORDERS OF THE NATIONAL LABOR
RELATIONS BOARD
In the Matter of THE MUSKIN SHOE COMPANY and UNITED SHOT:
WORKERS OF AMERICA, BALTIMORE DISTRICT , AFFILIATED WITH THE
,COMMITTEE FOR INDUSTRIAL ORGANIZATION
Case No. C-432.-Decided July 5, 1938
Shoe Manufacturing Industry-Interference , Restraint, and Coercion: anti-
union statements ; shut-down of plant during working hours to permit attend-
ance of employees at ; "Citizens' Committee" antiunion meeting ; distribution of
antiunion pamphlets on company time and property; questioning employees
regarding union affiliation and activity ; surveillance of union meeting -
Dis-crimination : discharges ; for union membership and activity; charges of dis-
missed , as to two employees-Reinstatement Ordered: discharged employees-
Back Pay : awarded.
Mr. Reeves R. Hilton, for the Board.
Mr. Eli Frank, Jr., and Mr. Emanuel Gorfine of Baltimore, Md.,
for the respondent.
Mr. George Martin, for the Union.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been filed by United Shoe
Workers of America, Baltimore District, affiliated with the Commit-
tee for Industrial Organization, herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by Bennet F.
Schauffier, Regional Director for the Fifth Region (Baltimore, Mary-
land) issued its complaint dated November 12, 1937, against The
Muskin Shoe Company, Westminster, Maryland, the respondent
herein, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint, accompanied by notice of hearing, were duly served
upon the respondent and upon the Union.
8 N. L. R. B., No. 1. 1
2 NATIONAL LABOR RELATIONS BOARD
The complaint alleged in substance that the respondent discharged
Kenneth Leaf, Jack Hodges,' Lorraine Gore,2 and Alice Snyder,
because they and each of them joined and assisted the Union, thereby
discriminating in regard to the hire and tenure of employment of
these persons and discouraging membership in the Union; that in
and by said discharges, the respondent interfered with, restrained,
and coerced its employees-in rights guaranteed them under Section
7 of the Act. The complaint further alleged that the respondent
intimidated, restrained, and coerced its employees, and in other ways
has attempted to prevent them from joining a labor organization of
their own choosing. On November 20, 1937, the respondent filed an
answer denying the material averments of the complaint and alleg-
ing affirmatively that the discharges had been for cause.
Pursuant to notice, a hearing was held in Westminster, Maryland,
on November 22 and 23, 1937, before D. Lacy McBryde, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was
afforded all parties. Upon motion of counsel for the Board, the
Trial Examiner dismissed the allegations of the complaint with
respect to Alice Snyder, it appearing that she had received satisfac-
tory reemployment with the respondent. This ruling is hereby
affirmed.
On February 16, 1938, the Trial Examiner filed an Intermediate
Report, a copy of which was duly served on all parties. He found
that the respondent had interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed them by Section 7
of the Act; that it had discharged Kenneth Leaf and Jack Hodges
because of their union affiliation and activities ; and that by such
acts it had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the Act. He `found that Lorraine Gore
had not been discharged for union activity or membership, but had
been laid off because of curtailed production. He recommended
that the respondent cease and desist from its said unfair labor prac-
tices; that it reinstate Leaf and Hodges, with back pay, to their
former positions ; and that it take certain other action to remedy the
situation brought about by the unfair labor practices. On February
231'1938, the respondent filed its Exceptions to the' Intermediate Re-
port, and requested opportunity for oral argument before the Board.
On March 29, 1938, oral argument on the Exceptions and record
I Referred to In the record as Jackson Hodges
2 Referred to in the record as Blanche Lorraine Goie.
DECISIONS AND ORDERS 3
was had before the Board in Washington, D. C., by the respondent
and the Union. The respondent filed with the Board a memorandum
brief in support of its Exceptions.
The Board has reviewed the rulings of the Trial Examiner on
motions and objections to the admission of evidence and finds that
no prejudicial errors were committed. The rulings are hereby af-
firmed. The Board has also considered the Exceptions of the re-
spondent to the Intermediate Report and in so far as they are in-
consistent with the findings, conclusions, and order set forth below,
finds them to be without merit.
Upon• the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a corporation organized under the laws of the
State of Maryland, maintains and operates shoe manufacturing
plants at Westminster, Millersburg, and Baltimore, Maryland. This
proceeding is concerned only with the Westminster plant. It em-
ploys approximately 500 workers,, and has a production capacity of
6,000 pairs of shoes per day. The raw materials used at the plant in
the course of manufacture consist principally of leather, rubber, and
textile products. Ninety-five per cent of, these goods are obtained
outside the State of Maryland, particularly New England,, New
York, and the Middle West, and are transported to the plant by rail-
road and truck. In turn, approximately 95 per cent of the manu-
factured product is shipped to points in States other than the State
of Maryland, the principal volume of sales being consigned to New
York and Missouri.
H. THE ORGANIZATION INVOLVED
United Shoe Workers of America, Baltimore District, is a labor
organization affiliated with the Committee for Industrial Organiza-
tion, admitting to membership all production employees of the re-
spondent, excluding supervisors, foremen, and watchmen.
HI. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
The Union began its organization of the employees in the West-
minster plant in April 1937. A plant organizing committee com-
posed of a number of the employees was formed by the Union to aid
in soliciting members. A local branch of the Union was set up at the
117213-39-vol. 8-2
4 NATIONAL LABOR RELATIONS BOARD
plant and regular meetings, were held by it" from April until about
the middle of July. The respondent was at all times aware of this
union activity.
During this period, the respondent, through its supervisory force,
displayed marked interest in the organization of its employees by
the Union. On several occasions in May, Dyer, foreman of the Mak-
ing and Finishing Department, questioned Hodges, one of the mem-
bers of the organizing, committee, about his union activity. Dyer
informed Hodges : "Mr. Hack knows every move you people make.
He has spies for that purpose." The evidence shows that about that
time, King, foreman of the Cutting Room, and Chaney, his assistant,
had sat in an automobile directly across the street from the place
where the Union was holding a scheduled meeting, and were able to
observe the employees who attended. Dyer also told two employees,
Martin and Barber, to warn Hodges that he should "keep out of this
Union business" or he would lose his job. Another foreman, Wein-
berg, told Kroop, president of the organizing committee, that he
should "not take any principal part in it." Reference was to the
Union.
In June 1937 the plant superintendent, Bowker, told Kenneth Leaf,
president of the local union organization and its most active organ-
izer, that the Committee for Industrial Organization, with which it
was affiliated, was composed of "murderers" and "gangsters", and
that "Under these large strikes you can see where they [referring to
the workers] are being murdered." At the hearing, Bowker denied
having made any adverse statement concerning the Committee for
Industrial Organization. However, upon the record, particularly
in the light of Bowker's expressed view and acts taken with respect
to the "Citizens' Committee" meeting, set forth below, we entertain
no doubt that he had so expressed himself to Leaf.
On July 29, 1937, the respondent received a letter from a group
of individuals residing in Westminster known as the "Citizens' Com-
mittee of Westminster." Upon receipt of the letter, Hack, manager
of the plant, consulted with Bowker concerning his opinion thereof.
The letter was addressed to the respondent and stated :
,A group of citizens of Westminster would like to meet your
factory workers at the Armory at 3:15 o'clock. We would ap-
preciate it if you would make arrangements so that they will be
able to attend this meeting.
On the side of the letter, the following appeared: "Committee of
Arrangements-W. Frank Thomas, Walter H. Davis, John H. Cun-
-ningham, ' Jesse E. Stoner, Edwin S. Gehr." Bowker said to Hack :
"I know all these men whose names appear here. They are' a re-
sponsible group of men and we should cooperate with them in their
DECISIONS AND ORDERS 5
desire." That afternoon, Bowker closed the plant and issued instruc-
tions that the employees were to gather in the factory yard. The
employees were assembled and the afore-mentioned letter was read
to them. Upon being told by Bowker that they had permission to
leave the plant, a substantial majority departed to attend the "Citi-
zens' Committee" meeting at the Westminster Armory.
At this meeting, the employees were addressed by several speakers
of some prominence in Westminster. A local banker told them that
he did not want to see any trouble in Westminster. By "trouble"
was meant labor trouble at the respondent's Westminster plant. An-
other speaker "spoke openly about labor unions; called all the or-
ganizers of Westminster communists, Reds, and everything he could
think of; said that if an organizer rapped on your door, to ward
them off and tell them never to come back again; and that they come
here, these organizers, and take money out of the worker's pockets,
just stick their hands right in their pockets and take it away."
It is contended by the respondent that it had no knowledge what-
soever of the purpose of the meeting and was merely cooperating
with the "Citizens' Committee" in permitting the employees to at-
tend it during working hours. We find it inconceivable that the
respondent could have lent its support to the meeting by granting
its employees express permission to attend it during working hours
without knowledge of the purpose for which the meeting was being
held. We are convinced that the respondent had such knowledge.
On July 30, 1937, one Raver, an employee in the Packing Depart-
ment, was called into the main office of the respondent's plant and
there received over the telephone a request that he come at once to
the home of one Mitten, an insurance agent in Westminster. Raver
then returned to his department and asked his foreman if he might
leave the plant. Upon receiving such permission, Raver proceeded
to Mitten's home in Westminster where Mitten gave him certain
pamphlets for distribution among the employees at the plant. Im-
mediately after his return to the plant that same afternoon, Raver
stopped at his table to remove his coat, and what later proved to be
the pamphlets were "stuck around his belt." After removing the
coat and putting on an apron, Raver proceeded to the plant office,
which he entered. Upon emerging therefrom, he distributed the
pamphlets among the employees in the packing department, during
working hours and in the presence, and with the apparent permis-
sion, of the foreman, Hack. At the hearing, Raver denied having
gone into the respondent's office after his return to the plant, but ad-
mitted having entered the office previously to receive the telephone
message and that he had put the pamphlets "under my apron, and
stuck them under my belt." In view of this testimony of Raver,
and the general circumstances surrounding the occurrence, we are
6 NATIONAL LABOR RELATIONS BOARD
satisfied that Raver, upon his return, slid proceed to the plant office
with the pamphlets before distributing them. We are equally con-
vinced that the respondent knew the nature of the pamphlets and
consented to their distribution on its time and property.
The pamphlets in question were entitled "Communism's Iron Grip
on the C. I. 0.," and purported to have been published by the Con-
stitutional Educational League, Inc., New Haven, Connecticut. Their
contents, for the most part, consisted of quotations from a speech
delivered by Congressman Clare E. Hoffman in the House of Repre-
sentatives on June 1, 1937. In the back of the pamphlets, informa-
tion was given as to where and at what price additional copies
thereof might be obtained, preceded by the statement:
IN THE FACE OF THIS CIO CHALLENGE
Loyal citizens will want to DO SOMETHING ABOUT IT.
Accordingly, the Constitutional Educational League invites co-
operation in its endeavor to give this pamphlet a wide distribu-
tion.
It, is evident from the pamphlet itself that it was prepared as anti-
union literature and any distribution thereof by an employer to his
employees would have the necessary effect of coercion and intimida-
tion within the meaning of the Act. Before the Introduction there
is printed a full-page picture of the secretary-general of the Com-
munist party of America, under which appears this statement : "He
offers their plans for `industrial unionists' and John L. Lewis carries
that program into action." Throughout the pamphlets appear vari-
ous news pictures, captioned in heavy bold-face type. A few in-
stances will illustrate : On page 27, appears the picture of a mob
surrounding what is purportedly a mail truck and bears this inscrip-
tion : "The MAIL must NOT go thru-CIO." On page 39, under
the pictures of a wounded police officer and that of a wounded
worker, respectively, appear the following : "I TRIED TO MAIN-
TAIN THE LAW but the CIO said NO!" On page 45, a further
illustration depicting a line of workers receiving their pay bore this
caption: "JOIN THE CIO AND HELP CLOSE THIS WINDOW
IN YOUR FACTORY."
By permitting the distribution of the pamphlets on its time and
property, the respondent indicated to its employees that it had
adopted, as its own, the antiunion contents thereof, and that they
should be guided accordingly.
The record and foregoing events clearly show that coincident with
the efforts of the Union to organize the employees in Westminster,
the respondent through its supervisory force engaged in determined
action to combat the Union. There is little doubt but what the overt
DECISIONS AND ORDERS 7
interest shown by the respondent in the progress of the Union and
its organizers, coupled with the hostile and threatening antiunion
statements made to employees by its superintendent and foremen,
had the desired effect of helping to'defeat the activities of the Union.
Apart from these direct attacks launched at individuals interested
in carrying on the union organization work, the respondent sought
to have its employees as a whole persuaded that the Union was
detrimental to their interests. This it did by closing the plant and
granting express permission for the employees to attend the "Cit-
izens' Committee" meeting, a permission tantamount to an.instruc-
tion to do so and an approbation of the purpose of the meeting.
Likewise, the disapproval of the Union implicit in the respondent's
permitting the distribution of the pamphlets on its time and prop-
erty was directed to the same end of fostering antiunion sentiment.
We find that the respondent, by the acts above set forth, has inter-
fered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act.
B. The discharges
Kenneth Leaf and Jack Hodges were employees at the West-
minster plant; Leaf a shoe "treer" for 41/2 years, Hodges a
"bleacher" for 1 year. Both men became interested in and joined
the Union shortly after the membership campaign at the plant was
begun. The two served on the organizing committee, and Leaf was
made president of the local branch of the Union in Westminster.
The union affiliation and activities of the men proved of concern to
the respondent. Some time in June the plant superintendent,
Bowker, had the conversation, above described, with Leaf, in which
Bowker took occasion to characterize and denounce the Committee
for Industrial Organization as murderers and thieves. About the
same time Dyer, the foreman, inquired of Hodges, as above men-
tioned, about the Union, and likewise told several employees to cau-
tion Hodges that he would lose his job if he continued in the Union.
On July 16 the respondent discharged Hodges. Dyer told Hodges,
"I got to lay you off . . . Pressure is being put on me from higher
up. You can read between the lines. It would be better for you
to resign. The Company will hold nothing against you ... I will
see that you get between $50 and $100 to pay your transportation
and your family's until you get another job." Upon refusing to
resign, Hodges was discharged. At the hearing Dyer testified that
he had discharged Hodges of his own accord upon instructions to
"thin down" his department. He admitted that Hodges was a good
worker, that he was sorry to see him go, and that he had offered
Hodges financial assistance. In the light of these admissions and
8 NATIONAL LABOR RELATIONS BOARD
the record, we have no doubt that Dyer had expressed himself to
Hodges in the manner above stated.
Three days later, on July 19, Leaf was discharged together with
five other employees, all active members of the Union. Leaf was
told that business was falling off and that the departure of certain
employees for a 2-week National Guard encampment required a cur-
tailment in the respondent's operations. The following day, Leaf
filed a charge with the Board alleging that he had been discrim-
inatorily dismissed by the respondent for union activity. On July
21 a special committee of the Union consisting of employees from
the various departments of the plant called upon the respondent and
insisted that Leaf, Hodges, and the others who had been discharged
with Leaf, be immediately reinstated. Thereupon, these employees
were returned to their former positions.
In the succeeding week, on July 29, the Citizens' Committee held
its working-hour meeting for the plant employees. On July 30 Leaf
and Hodges were discharged by Bowker.
At the time of their second discharge, Leaf and Hodges were told
that the respondent had found it necessary to make places for the
employees who were returning from the National Guard camp. No
other reason was assigned. Two "treers" junior in service to Leaf
were retained. The evidence shows that none of the employees so
returning did the same work which either Leaf or Hodges per-
formed. It also satisfactorily appears that the respondent had fol-
lowed a policy of not discharging or laying off any of its male
employees during slack periods, but instead had permitted them to
divide the available work among themselves.
At the hearing, the respondent took the position that the dis-
charges were justified on grounds other than the return of the
guardsmen, and that such other grounds also had occasioned the
discharges. Testimony was introduced in behalf of the respondent
to the effect that Leaf was loud, boisterous, and offensive in his con-
duct; that in March 1937 he made a threat of assault against one
of the foremen ; that in March he sold liquor to employees in the
plant. Further testimony was introduced that Hodges conducted a
baseball "pool" during working hours and unnecessarily left his
work for visits to other departments. . The record shows that. Leaf
was never insubordinate to his superiors although on some occasions
Bowker had reprimanded him for being too noisy; that while Leaf
had made the threat in question he had apologized to the foreman
for so doing and the matter had thus ended; that he had sold
some liquor in March but upon being then told by the.respondent
not to continue had stopped selling and had not sold any since.
The baseball "pool" had been begun at the plant in 1936 and met with
DECISIONS AND ORDERS 9
the acquiescence of the respondent.' The conduct of the pool had
never been prohibited, and Dyer himself participated in it. Hodges'
visits to the other departments were made with the permission of
his foreman and in connection with a soft-baseball league which had
been formed among the employees. The work of both Leaf and
Hodges was competent.
Prior to and at the time of their respective discharges on July
30, 1937, Leaf and Hodges were paid on a piece-work basis, Leaf
earning between $20 and $23 a week and Hodges, a weekly average
of $18. Since July 30, 1937, both Leaf and Hodges have been
unemployed.
We are satisfied that Leaf and Hodges were discharged on July
30 because of their union affiliation and activities. The hostility
which the respondent had shown toward that Union's organization
of its employees in the very week of the dismissal- points directly
to the true reason for the discharges. The evidence establishes that
the respondent had determined upon ridding itself of these union
leaders the first time it discharged them, that in thereafter re-
instating them upon the insistence of their fellow workers it in
no wise had receded from its decision, that after subjecting its
employees to the antiunion tirades of the speakers at the Citizens'
Committee meeting and to the contents of the pamphlets distributed
by Raver it promptly proceeded in its original purpose of discharging
the two men. The respondent's intention in the matter was not
overly concealed. Bowker had denounced the Union to Leaf; Dyer
had cautioned that Hodges would lose his job if he persisted in
continuing with the Union, and at the time of the first discharge
had told Hodges to "read between the lines" and suggested that he
accept some money for an acquittance. The various reasons for
the discharges which the respondent has advanced are not persuasive.
The record does not satisfactorily show why, the return of the
guardsmen should have been of consequence, it appearing that none
of them did the kind of work which Leaf or Hodges performed, that
the respondent has followed a practice of dividing available work
in slack periods among all employees rather than discharging any,
and that in any event two "treers" junior in service to Leaf were
retained at the same time that Leaf was discharged. The other
reasons assigned in this proceeding but not told the men at the time
of their discharge relate essentially either to closed incidents or mat-
ters having the tacit approval of the respondent.
We find that the respondent-, in discharging Leaf and Hodges,
discriminated in regard to their tenure of employment, thereby dis-
couraging membership in the Union, and that by said discharges the
respondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act.
10 NATIONAL LABOR RELATIONS BOARD
Lorraine Gore was employed in the stitching room at the plant for
approximately a year. She joined the Union but was not active in
its affairs . The record does not show that her union affiliation was
known to the respondent . On August 1, 1937 , Gore was laid off along
with several other girls in her department . The reason given for the
lay-offs was the seasonal curtailment in production . Gore was told
that as soon as production arose she would be recalled to work. None
junior in point of service to her was retained at the time of her lay-off.
There is no conclusive showing that the respondent had any reason
to discharge Gore other than the one given. Accordingly , we shall
dismiss the allegations of the complaint with respect to Lorraine Gore.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate , and substantial
relation to trade, traffic , and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
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. United Shoe Workers of America, Baltimore District , is a labor
organization , within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Kenneth Leaf and Jack Hodges, and thereby discouraging
membership in a labor organization of its employees , the respondent
has engaged in and is engaging in unfair labor practices , within the
meaning of Section 8 ( 3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the findings of 'fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act. the
National Labor Relations Board hereby orders that the respondent,
DECISIONS AND ORDERS 11
The Muskin Shoe Company, a corporation, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Shoe Workers of America,
Baltimore District, or any other labor organization of its employees
by discriminating in regard to hire or tenure of employment or any
term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining and other mutual
aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Kenneth Leaf and Jack Hodges immediate and full
reinstatement to their former positions, without prejudice to their
seniority rights and other rights and privileges;
(b) Make whole said Kenneth Leaf and Jack Hodges for any loss
of wages which they have suffered by reason of their discharge, by
payment to each of them, respectively, of a sum of money equal to
that which he normally would have earned as wages during the period
from the date of his discharge until the date of the offer of rein-
statement, less the amount, if any, which he may have earned during
that period;
(c) Post immediately, and keep posted for a period of thirty (30)
consecutive days, notices in conspicuous places throughout its West-
minster plant stating that the respondent will cease and desist in
the manner set forth in 1 (a) and (b), and that it will take the affirm-
ative action set forth in 2 (a) and (b), of this order; and
(d) Notify the Regional Director for the Fifth Region in writing
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 allegations of the complaint with
respect to Lorraine Gore and Alice Snyder be, and the same hereby
are, dismissed.