Laconia Shoe Co., Inc.

LACONIA SHOE COMPANY, INC. 573 Laconia Shoe Company, Inc. and Chauffeurs, Team- sters and Helpers Local Union No. 633, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America stituted for the Administrative Law Judge's notice marked "Appendix A." APPENDIX A United Shoeworkers of America, AFL-CIO, CLC and Chauffeurs, Teamsters and Helpers Local Union No. 633, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Cases 1-CA-9521, 1-CA-9793, and 1-CB-2471 December 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 26, 1974, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceed- ing. Thereafter, the Respondents filed exceptions and supporting briefs, and the General Counsel filed cross- exceptions and a brief in support thereof and in re- sponse to Respondents' exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents, Laconia Shoe Company, Inc., La- conia, New Hampshire, its officers, agents, successors, and assigns, and United Shoeworkers of America, AFL-CIO, CLC, its officers, agents, and representa- tives, shall take the action set forth in the said recom- mended Order, except that the attached notice is sub- i Since the General Counsel did in fact prove, as the Administrative Law Judge found, that the Shoeworkers did not represent a majority of the concerned employees at the time the Employer granted recognition, we find it unnecessary to pass on his statement in fn 11 of his Decision that the General Counsel had no burden to prove such lack of majority in this case 2 Chairman Miller and Member Kennedy find this case to be distinguisha- ble from Gary-Hobart Water Corporation, 210,NLRB 742 (1974), in which they dissented The strike in the instant case was in protest of Respondent Company's unfair labor practices whereas the strike in Gary-Hobart was economic NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT encourage membership in United Shoeworkers of America, AFL-CIO, CLC, or any other labor organization , by recognizing such la- bor organization as the exclusive representative of our shipping and receiving department employees at a time when such labor organization has not been designated by a majority of such employees. WE WILL NOT give effect to our agreement of December 19, 1973, with United Shoeworkers of America, AFL-CIO, CLC, which extends recog- nition to the aforesaid labor organization for the shipping and receiving department employees, un- less said labor organization has been duly certified by the National Labor Relations Board as the ex- clusive representative of such employees. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act by discriminating against them for engaging in protected concerted activi- ties. WE WILL offer Dana Colby immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of his unlawful discharge. WE WILL jointly and severally with United Shoeworkers of America, AFL-CIO, CLC, make whole the shipping and receiving em- ployees for dues and initiation fees paid to the above-named labor organization. LACONIA SHOE COMPANY, INC. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Laconia, New Hampshire, on May 23, 1974, based on charges filed on January 4 and April 30, 1974, and a complaint and amended complaint issued February 14 and May 14, 1974, respectively, alleging violations of Section 8(a)(1), (2), and (3) of the Act by Respondent Company, and Section 8(b)(1)(A) of the Act by Respondent Union. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the 215 NLRB No. 106 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, the Union, and the General Counsel, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATIONS INVOLVED Laconia Shoe Company, Inc., the Company Respondent herein, is a New Hampshire corporation , with its principal office and place of business at Laconia , New Hampshire, where it is engaged in the manufacture , sale and distribution of men's shoes and related products . It annually both receives and ships goods valued in excess of $50,000 from and to points outside the State of New Hampshire, and as it admits, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act United Shoeworkers of America, AFL-CIO, CLC, herein called the Shoeworkers or the Union, the Respondent Union herein, and Teamsters Local Union No. 633, the Charging Party, herein called the Teamsters , are both labor organizations within the meaning of Section 2(5) of the Act 11 THE UNFAIR LABOR PRACTICES A. The Issues The basic issue is whether the Company violated Section 8(a)(2) and the Shoeworkers 8(b)(1)(A) of the Act by signing an agreement, on December 19, 1973, which incorporated a group of shipping and receiving employees into a unit of production and maintenance employees already represented by the Shoeworkers. Resolution of that question turns largely on whether the shipping and receiving employees constituted an "accretion" to the existing unit, or, if it did not, whether the General Counsel proved that the Shoeworkers did not represent a majority of those employees. The second issue, which depends in part on the outcome of the first issue, is whether the Company violated Section 8(a)(3) and (1) of the Act by refusing to reinstate striking employee Dana Colby, at a time when he was covered by the no-strike clause of the Company's contract with the Shoeworkers B. The Facts The Shoeworkers has represented the Company's produc- tion and maintenance employees for about 20 years, based on the Company's having extended voluntary recognition to the Union. At that time, there were substantially fewer em- ployees altogether than at the time of the events in this case, and there was only one part-time shipping and receiving clerk By November 1972, the shipping and receiving depart- ment had two employees and a supervisor. Between then and December 1973, the number of employees performing ship- ping and receiving functions increased to about 10 to 12 following the Company's relocation in a new plant. The total employee complement, by December 1973, was about 300. In late November 1973, shipping and receiving employee Dana Colby, later transferred into production, told the presi- dent of the Shoeworkers Local, a Mrs. Reinholz, that the shipping and receiving employees were interested in becom- ing members of the Shoeworkers, and having the Shoework- ers represent them. Vice President John Giderian of the Sho- eworkers International, shortly thereafter, at a regular grievance meeting, asked Eugene Brindis, the company chair- man of the board and its operating head, to include the ship- ping and receiving employees in its contract. Brindis told Giderian that this was not the proper subject of a grievance meeting. Giderian repeated his request to Brindis a few days later, requesting a specific amendment to the contract. Brin- dis did not agree, telling Giderian, according to Brindis' tes- timony, "no, before we get to that point, we have got to lay out work rules, work loads. There is a lot of work that has to go into this. So we postponed it for a future time." On December 18, Antonio Chloros, Jr., a Teamster busi- ness agent, met with Brindis, and requested that the Com- pany recognize the Teamsters for the shipping and receiving employees i Prior thereto, but after Colby spoke with Mrs. Reinholz about the Shoeworkers representing them, some nine of the shipping and receiving employees had signed Teamster authorization cards 2 The next day, December 19, Bnndis called Giderian, tell- ing him he now agreed to the amendment to the contract to include the shipping and receiving department in the unit. Brindis sent the signed amendment over to Giderian by car, because "it was important to get it signed," and Giderian signed it the same day. Brindis further testified that after speaking with Chloros on December 18, he called his attor- ney, and that in his phone call to Giderian the next day, he informed Gidenan that he "was withdrawing my question- ing, and I agreed that he represented them."' On December 26, 1973, Giderian had another meeting with the shipping and receiving employees, and on December 27, the Teamsters filed a representation petition with the NLRB, Case 1-RC-13085, seeking a unit of shippers, receiv- ers, and truckdrivers, excluding all others. On April 16, 1974, a meeting was held with eight em- ployees present, seven of them from shipping and receiving, and the eighth, Dana Colby, at this point in production. At this meeting, the employees present discussed "the unfair labor practices committed by the Company in the past, the continuation of these unfair labor practices, the instituting of new unfair labor practices by both the Shoeworkers and the Company," and "the delays in the original hearing date " It was "unanimously agreed at the conclusion of the meeting that we should conduct an unfair labor practice strike."4 i There is a slight conflict between Brindis and Chloros concerning this December 18 meeting I have no doubt but that Chloros did request recogni- tion for the shipping and receiving employees, although, for reasons that will later appear, it would not matter whether or not he did, in terms of deciding this case 2 At the time Colby spoke with Mrs Reinholz, between 7 and 10 of these same employees had signed a "petition," apparently for the purpose of being included in the production and maintenance unit This petition was never presented to any Shoeworker or Company representative, and was torn up when the employees, feeling they were getting nowhere with the Shoework- ers, sought out the Teamsters ' Giderian's testimony that he received a call from Brindis before Decem- ber 19 recognizing the Shoeworkers "claim of recognition" for the shipping and receiving employees was obviously mistaken Brindis not only did not testify to such a call, he specifically testified that he did not agree to the shipping and receiving department being represented by the Shoeworkers until December 19, after the December 18 conversation between him and Chloros, and stated on the stand that his agreeing to execute the amendment was "hurried along a little bit" by the meeting with Chloros This latter also supports Chloros' version of his meeting with Brindis LACONIA SHOE COMPANY, INC. The next day these eight employees went out on strike, and picketed with signs reading "Laconia Shoe Company Unfair to Labor, Teamsters Union on Strike." The strike lasted until April 26. At that time, all the strikers were reinstated except Dana Colby.' As to Colby, the Company's position is that he had been in the production unit for some months prior to the strike, and therefore he was in violation of the no-strike clause in the contract with the Shoeworkers covering the production workers.' C. Discussion 1. The alleged 8(a)(2) and 8(b)(1)(A) violations The General Counsel bases his claim of a violation on two grounds, first, that the Shoeworkers did not represent a majority of the shipping and receiving employees when, on December 19, the amendment including them in the produc- tion and maintenance unit was signed , and second, that the Teamsters having requested recognition for these employees on December 18, with 9 signed authorization cards from the 10 to 12 employees in the group, the Company's recognition of the Shoemakers for them the next day violated Midwest Piping. (Midwest Piping and Supply Co., 63 NLRB 1060.) The Company and the Shoeworkers contend that the group in question (the shipping and receiving employees) con- stituted an "accretion" to the production and maintenance unit represented by the Shoeworkers, and accordingly, were lawfully merged into that unit without regard to whether the Shoeworkers represented them (in the sense of having a majority among them) or whether another union was seeking to represent them and had requested the Company to grant recognition . They also contend , assuming no accretion is found, that the General Counsel has not established that the Shoeworkers did not represent a majority of those employees, that in fact the Shoeworkers request for recognition, ad- vanced in late November, was supported by the oral authori- zation of a majority of them. The Shoeworkers further contends that the shipping and receiving employees were never specifically excluded from the production unit, that the Shoeworkers did not realize until November 1973 that they had not been, or that the Company did not consider them to be part of the unit. The Shoeworkers points to the fact that the shipping and receiving employees themselves initiated the Shoeworkers attempts to gain recognition of their department, and, even though these employees subsequently "become involved with a rival union," they were clearly "more interested in gaining repre- sentation than in gaining representation by any particular union," so that a "decision in favor of accretion necessarily resulting in representation by the Shoeworkers, aside from other motivating features, would not be contrary to the inter- ests or desires of the shippers and receivers involved." Alter- natively, the Shoeworkers contends that the only appropriate unit is an overall one, including the shipping and receiving The above is based on Chloros' uncontradicted testimony. ' Apparently two part-time employees did not go back at that time. There is no allegation concerning them. 6 Without regard, of course, to the validity of the December 19 extension of recognition to the Shoeworkers for the shipping and receiving depart- ment. 575 employees, so that even assuming no accretion is found, the Teamsters request for recognition (if made) and its majority support (if it existed) are "irrelevant in terms of the pending unfair practice charges." Further, the Union claims, "if the Teamsters were ineligible in terms of an overall unit, and the separate unit was inappropriate," the "logical inference is that the shipping and receiving employees would still have favored representation by the Shoeworkers in the overall unit." All parties agree that the first question to be answered is whether the shipping and receiving employees constituted an "accretion," under Board doctrine, to the existing production and maintenance unit. If they did, then the extension of recognition to the Shoeworkers for them was lawful whether or not the Shoeworkers enjoyed majority support among those employees, and whether or not the Teamsters repre- sented a majority of them or sought recognition for them. Both the Company and the Shoeworkers recognize that, as the Shoeworkers states in its brief, "the Board has applied the accretion doctrine on a restrictive rather than expansive ba- sis." As noted above, when the Shoeworkers was first recog- nized by the Company in 1954, there was only one employee performing, on a part-time basis, shipping and receiving func- tions. Some time thereafter (the exact time is not clear in the record, but must have been substantially before 1972) a sepa- rate shipping and receiving department, with a supervisor (Haggerty) and two rank and file employees, emerged. This state of affairs continued until about November 1972, when the Company relocated its plant, and the number of em- ployees in the shipping and receiving department shortly went up to between 10 and 12. In the new plant, the shipping room is located on the first floor, in a separate room, con- nected by an open fire door with the packing department, also on the first floor. The various production departments are located on the second, third, and Fourth floors, with the flow of work beginning with the cutting of soles on the fourth floor, progressing to the molding department, also on the fourth floor, to the cutting and stitching operations on the third floor, the "lasting, making, and finishing" rooms on the second floor, and finally to the packing room on the first floor. The last step is the conveyance to the shipping room. As the name "shipping and receiving" suggests, the em- ployees in that department also receive materials coming into the plant.' From time to time, employees from other depart- ments come into the shipping area to assist loading or unload- ing trucks, and to pick up incoming materials for their de- partments. In addition, the shipping and receiving employees on occasion go to other parts of the plant in the performance of their duties. The record shows that the Company has as a regular prac- tice applied to the shipping and receiving employees terms and conditions of employment negotiated with the Shoework- ers in the successive contracts from 1954 to the present, except that the pension program has never been applicable to the shipping and receiving department employees, and they have not been required to be members or pay dues to the Shoeworkers, or, of course, been subject to the check-off. ' A few employees in other departments also "receive" certain goods in their departments on other floors. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indeed, one employee, Tony Burroughs, was removed from the check-off when he transferred from a production depart- ment to shipping and receiving. The single most crucial factor in any "accretion case" un- der settled Board law' is whether the group sought to be accreted has been in existence at the time of recognition or certification, yet not covered in an ensuing contract, or, hav- ing come into existence, has not been part of the larger unit to which their accretion is sought or granted Although in 1954 there was only one employee performing the function of shipping and receiving, and he only on a part-time basis, for the bulk of the 20-year period thereafter, there has been a separate shipping and receiving department, with separate supervision, and at least two employees. Since the expansion to some 10 to 12 employees following the plant relocation in November 1972, the department has been located in a sepa- rate room, adjacent to the packing department, which is the only other department on the first floor.' In all these re- spects, the situation here is, as the General Counsel asserts, "almost squarely on all fours" with the facts of Sterilon, supra where the Board refused to find shipping and receiving employees to be an "accretion" to an existing production and maintenance unit. The Board's conclusion in Sterilon that no "accretion" could be found was made despite the fact that the shipping and receiving employees there "would normally" have been included "in a common unit with the production and maintenance employees." The facts adduced by the Company and the Shoeworkers do indeed demonstrate that Laconia Shoe Company's ship- ping and receiving employees would "normally" be included in the production and maintenance unit, and that it is un- likely that the Board would have set them up as a separate unit, even if some union sought them as such, at a time when another union was seeking an overall unit But a finding of "accretion" does not necessarily follow even from a conclu- sion that the employees involved could not constitute a sepa- rate "residual" unit, let alone the fact that they would not have constituted a separate unit in the first instance. When a group has in fact been excluded for a significant period of time from an existing production and maintenance unit, the Board will not permit their accretion without an election or a showing of majority among them even if no other union could attain representative status for them The Company and the Union seek to distinguish this case from Sterilon, and other similar cases, by claiming that there was no conscious exclusion of the shipping and receiving employees here, that, indeed, International Vice President Giderian expressed surprise when in late November 1973 he was informed that these employees wanted to be represented by the Shoeworkers, that they had not been included in the unit all along. In view of the express testimony of Brindis that the Shoeworkers was not recognized as bargaining agent for the shipping receiving employees prior to December 19, 1973, a belief by Giderian to the contrary is of no significance.10 B The "lead" case in this respect is Sterilon Corporation, 147 NLRB 219 (1964) % 9 Packing employees are considered "production," and in the production and maintenance unit 10 Nor is the fact, as Giderian testified, that the Shoeworkers Union has a policy of including shippers and receivers in production and maintenance Indeed, I find it difficult to believe that the Shoeworkers as an entity, as distinguished from Vice President Giderian as an individual, could not have been aware over the years of the fact that the shipping and receiving department was not in the unit, in view of the undisputed fact that none of them was required to join the Shoeworkers pursuant to the union security clause, that they were not covered by the pension program, and, perhaps even more significantly, that when employee Burroughs was transferred from production to the shipping and receiving department, he was immediately taken off the "check-off." I conclude, accordingly, that the shipping and receiving employees did not, under the principle of Sterilon, constitute an accretion to the existing production and maintenance unit. Having concluded that the shipping and receiving em- ployees could not be accreted to the Shoeworkers recognized and contractual unit, the Company could lawfully have recognized the Shoeworkers for these employees only if they chose to be represented by the Shoeworkers. This is so whether or not these employees could constitute a separate appropriate unit. Thus, the Company violated Section 8(a)(2) and the Union 8(b)(I)(A) if in fact the Shoeworkers was not authorized by a majority of those employees to represent them. Whatever the case may be at the time the Shoeworkers requested the Company to add the shipping and receiving employees to the contractual unit, in late November, by December 19, when they were added by the amendment signed by the Company and the Union, the Shoeworkers plainly did not represent them. For, several days before the recognition was accorded, a clear majority of the employees involved signed Teamster cards, clearly vitiating any prior desire for Shoeworker representation that may have been expressed. See, e.g., Allied Supermarkets, Inc.-Allied Discount Foods Division, 169 NLRB 927 (1968); Intalco Aluminum Corporation, 169 NLRB 1034 (1968). Indeed, although it does not really matter" Chloros' request for recognition on December 18 plainly alerted the Company to the fact that there was at least a reason for questioning whether the Shoeworkers represented these employees at that time. I am inclined to agree that when Gidenan first asked Brin- dis to add the shipping and receiving employees to the unit, there was a sufficient showing that the employees wanted to be added to have allowed the Company lawfully to recognize the Shoeworkers. But by the time such recognition was granted, that was no longer the case as has been shown. The Union asserts, with convincing logic, that if the Shoe- workers could not in any event constitute a separate appro- priate unit, even assuming they were not "accretable," the employees would probably have wanted representation by the Shoeworkers in the larger unit, as they seemingly did in late November, rather than no representation at all But "proba- bly" is not a substitute for a showing of majority at the right units, and does so in other plants, or the fact that the recognition clause in the Company-Shoeworkers contract does not specifically exclude them i 1 Because "scienter" is unnecessary to a Bernhard-Altmann (366 U S 713) violation As I read the cases, when a company adds an existing group of employees to a unit and the group is not an "accretion," it is not even the General Counsel's burden to show lack of majority, it is the Company and Union's to show majority As the General Counsel has shown that the Shoeworkers did not, on December 19, represent a majority of the shipping and receiving employees, the more stringent test of Bernhard-Altmann has in any event been met LACONIA SHOE COMPANY, INC. 577 time, and clearly cannot negate the showing that these em- ployees wanted the Teamsters Union, even if, arguendo, they could not have the Teamsters. In view of their separate super- vision, different duties, and separate location in the plant, it is likely, in my view, that the Board would conclude that the shipping and receiving employees could constitute a separate appropriate "residual" unit at the time Cf. Weber Aircraft, Division of Walter Kidde & Company, 191 NLRB 10 (1971); Hotel Employers Association of San Francisco, 159 NLRB 143 (1966). But even if the Shoeworkers speculation that they would vote for inclusion, given that choice against no repre- sentation at all, is correct, the law is clear that the choice must in fact be given, and when, as here, the signing of Teamsters cards by a majority of the shipping and receiving employees effectively negates any oral authorization earlier given to the Shoeworkers, and even any written signatures on the petition which was torn up and never shown to the Company or the Union, the General Counsel has demonstrated that when recognition was accorded the Shoeworkers on December 19, that union did not represent the shipping and receiving em- ployees. As no bargaining order in -favor of the Teamsters is here sought, it is not necessary for me to determine whether these employees could in fact constitute a separate unit. And since there is no need to find any other ground to support the violation of Section 8(a)(2) and 8(b)(1)(A) than the conclu- sion that the shipping and receiving employees were not an accretion coupled with the fact that the Shoeworkers did not represent a majority of them, I see no need to consider the General Counsel's theory that Midwest Piping is applicable to the instant case 12 For this same reason, it is not even neces- sary to find that Chloros actually made a proper request for recognition on December 18, in terms of finding a violation of the Act in the Company's recognition the Shoeworkers the next day. My finding that such a request was made merely points up the fact that no de facto recognition of the Shoeworkers was accorded before them, and that the Shoeworkers did not represent a majority of the shipping and receiving employees at that time.13 For all these reasons, I conclude that the recognition ac- corded the Shoeworkers on December 19 for the shipping and receiving employees was unlawful, and that Respondent Company thereby violated Section 8(a)(2) and Respondent Union 8(b)(1)(A) of the Act. 2. The alleged 8(a)(3) violation unfair labor practice strike Because the Company reinstated the seven shipping and receiving employees who struck, there is no issue with 'respect to them But Dana Colby some months prior to the strike, but after the unfair labor practices which caused it, was transferred to a job in the production and maintenance unit, he was no longer a shipping and re- ceiving department employee at the time of the strike The Company contends that the no-strike provision of their con- tract with the Shoeworkers applied to Dana Colby, and made his participation in the April 16 strike unprotected. The Gen- eral Counsel counters by claiming (1) that the no-strike provi- sion of the contract should not be read as barring a "sympa- thy strike," (2) that the strike being an unfair labor practice strike precluded invocation by the Company of the no-strike clause, and (3) that, in any event, the Company condoned Colby's conduct, should it be found to be otherwise un- protected. In support of the first proposition, the General Counsel relies upon Gary-Hobart Water Corporation, 210 NLRB 742 (1974), where a Board majority, construing the no-strike provision in that case, concluded that it did not apply to sympathy strikers.15 Some of the facts relied upon by the Board for its conclusion in Gary-Hobart are not present in the instant case. Thus, there the no-strike clause was part of the grievance provision of the contract (although there was also a "catch-all" provision with the Union agreeing that there should be no strikes and that disputes be taken up under the grievance and arbitration procedures); and in the instant case, the no-strike provision is separate from the grievance and arbitration provisions of the contract. In Gary-Hobart the employer attempted, without success, to broaden the no- strike clause so as to cover sympathy strikes; there is no such evidence here. 'I As in Gary-Hobar4 there is here no express waiver in the contract of the protection normally afforded to a sympathy striker. It is difficult to determine whether the differences noted between the clause, and its bargaining history, in this case, and that in Gary-Hobart, suffice to make the clause in the instant case, even though not specifying "sympathy" strikes, applicable to such strikes. That determination de- pends on how much weight the three members of Board majority in Gary-Hobart was giving to the placement of the no-strike clause in the contract, as well as to the bargaining history. If forced to express a view, I would reason that the princi- pal thrust of the Board's view was the failure of the no-strike The 8(a)(3) allegation with respect to Dana Colby presents an interesting problem. There is no question but that the strike of April 16 was caused at least in part by the unlawful extension of recognition to the Shoeworkers for the shipping and receiving room employees," and was, accordingly, an 12 For Midwest Piping to apply, it would be necessary to find that these employees could constitute a separate appropriate unit, or else no real question concerning representation would have been raised by the Team- sters request for recognition William Penn Broadcasting Company, 93 NLRB 1104 (1951) 13 It also strongly suggests that Brindis' recognition of the Shoeworkers I day later was motivated more by a desire to keep the Teamsters out than by any sudden realization that these employees ought to be included in the production and maintenance unit Brindis' own testimony , as noted above, confirms this 14 Although the Company does not, of course, concede that the extension of recognition was unlawful, I do not believe Respondent contests that it was one of the causes of the strike, and in any event the evidence clearly shows that it was Respondent does contend that the extension of recognition was not the "sole" cause of the strike, but that does not prevent the "unfair labor practice strike" conclusion 15 The strike in Gary-Hobart was economic in nature 16 There is a clause in the contract here permitting employees to refrain from working on shoes coming from any place "where a strike or a lockout or a labor controversy exists " This is argued by the General Counsel as evidence that the no-strike clause does not preclude all strikes I do not believe, on the facts of this case, that either party even thought of "sympathy strikes" with respect to one segment of the Company 's employees support- ing another, for it is evident, as witness the Company and Union 's arguments respecting the 8(a)(2) aspect of this case, that neither party was thinking in terms of an unrepresented group, or group represented by another union, during their contractual relationship 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provision specifically to cover sympathy strikes, and that the other factors happened to exist , and made it crystal clear to the majority that sympathy strikes were hot intended to be covered, but were not essential to the majority's determina- tion Viewed in that light , the no-strike clause here would not preclude, or make unprotected , a sympathy strike, and Colby would be protected ." I do not believe it is necessary, how- ever, to resolve that question here, for, as I have noted, Colby was more than merely sympathizing with economic strikers, he was joining an unfair labor practice strike. Furthermore, although the unfair labor practices which caused the strike no longer directly involved Colby, in view of his transfer to the production unit, he was at least directly affected by it when it occurred . It would seem that even if the no-strike clause were construed, because of the differences between this case and Gary-Hobart, as including sympathy strikes, the fact that Colby was "sympathizing" with unfair labor practices strik- ers, and the further fact that he had been directly affected by the unfair labor practices , require the conclusion that he did not lose his protection . Stated otherwise , I believe that for a combination of the reasons set forth in Gary-Hobart and Mastro Plasticsd8 a sympathetic unfair labor practice strike would not be deemed unprotected short of an explicitly stated, clear, and unequivocal waiver . Just as a broad no- strike clause does not suffice to waive employees' rights to engage in unfair labor practice strikes against "serious" un- fair labor practices, Arlan 's Department Store of Michigan, Inc., 133 NLRB 802 (1961 ), the same broad no-strike clause should not constitute a waiver against "sympathetic unfair labor practice strikes." Assuming, arguendo, that the unfair labor practices here were not serious enough to permit a strike by the affected employees had they been covered by a broad no -strike clause, and assuming further that the no-strike clause was broad enough to cover employees striking in sympathy with eco- nomic strikers, the coalescence of "sympathy" and "unfair labor practice," in my view, is enough to distinguish this case both from the majority's position in Arlan 's, and the minori- ty's position in Gary-Hobart. The Board's Arlan's doctrine, which continues to represent the Board 's view (Member Fan- ning, who dissented in Arlan 'scontinues to dissent now, Dow Chemical Company, 212 NLRB 333 (1974), is perhaps, by panty of reasoning, the best support for my analysis. Thus, the same no-strike clause that would not have been sufficient to ban strikes against serious unfair labor practices was deemed sufficient to make unprotected strikes against rela- tively minor unfair labor practices . The clause in Arlan'swas the same as the clause in Mastro, both strikes were unfair labor practice strikes, but the Board was willing to read into that no-strike clause a prohibition even of unfair labor prac- tice strikes when the unfair labor practices were not "seri- ous," something it refuses to do when they are serious To me, this is ample warrant for refusing to read into a broad no- 11 I cannot agree with the Company' s argument that Colby was un- protected because he alone of the production employees engaged in the strike His making common cause with the shipping and receiving em- ployees suffices to make his conduct "concerted " Cf NL R B v Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F 2d 503, 505-506 (C A 2), Kellogg Company v NL R B, 457 F 2d 519, 522, (C A 6, 1972) 18 Mastro Plastics Corp, and French-American Reeds Mfg Co, inc v NLRB 350 U S 270 (1956) strike clause a prohibition against unfair labor practice sym- pathy strikes, even assuming the same clause could have read into it a prohibition against economic sympathy strikes. In short, if the Board can construe the same clause differently depending on the quality or quantity of an unfair labor prac- tice, surely it can construe the same clause differently depend- ing on whether a sympathetic striker is supporting an eco- nomic strike or an unfair labor practice strike. As to whether the unfair labor practices were in fact "seri- ous," I expect one must look to Colby's situation at the time of the strike, rather than to the seven shipping and receiving employees. And perhaps, because Colby was no longer di- rectly affected by the unlawful inclusion of the shipping and receiving employees in the Shoeworkers contract with the Company, the effect upon him at the time of the strike could not be characterized as serious. But, as I have indicated, I do not believe a no-strike clause can be construed as a waiver of employees' rights to engage in a strike in sympathy with unfair labor practice strikers short of a much more explicit waiver than the dissenters in Gary-Hobart thought sufficed (by a no-strike clause alone) for a sympathetic economic strike. For these reasons, I conclude that the Company, in violation of Section 8(a)(3) and (1) of the Act, unlawfully refused to reinstate Dana Colby The General Counsel, as an alternative theory, claims that the Company condoned Colby's violation of the no-strike provision (assuming that provision otherwise to be applica- ble). Although it is true that Brindis said, when the strikers requested reinstatement, that their jobs had been filled, but that they would be placed on a preferential hiring list, the Company almost immediately put the seven shipping and receiving employees back to work,19 but would not take Colby back, Company counsel conceding at the hearing that Colby had no prospects of reemployment because of his viola- tion of the no-strike clause. With the events following one another in rapid succession, I do not believe there was any conscious intent to "condone" Colby's violation of the no- strike clause. I have found, of course, that Colby was nonetheless protected, for the reasons fully set forth above. But in the event that he was subject to the no-strike clause, I would dismiss the complaint in this respect, rejecting the General Counsel's condonation theory. The General Counsel also suggests that if Colby be found an economic striker, rather than an unfair labor practice striker, the question whether a position for him became avail- able, so as to bring Laidlaw into play, should be handled at the compliance stage I do not see any possibility, regardless of the validity or lack of it of any of my reasoning above, of Colby's being deemed a protected economic striker. If no 8(a)(2) is found with respect to the Company's December 19 recognition of the Shoeworkers for the shipping and receiving employees, then they too were covered by the no-strike provi- sion, their own strike was unprotected, and Colby's joining them a fortiori was unprotected, with no need to construe the no-strike clause vis-a-vis Gary Hobart, or Mastro Plastics, or any combination thereof 19 Although they too were "covered" by the no-strike provision at the time, it is obvious that the Company wisely did not rely on that, with such coverage already the subject of a complaint alleging its illegality LACONIA SHOE COMPANY, INC Upon the basis of the foregoing findings of fact and the entire record, I make the following. CONCLUSIONS OF LAW 1. Respondent Company, by recognizing Respondent Union as the collective bargaining representative of its ship- ping and receiving department employees , has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act 2. Respondent Union, by obtaining recognition as the ex- clusive bargaining representative of the Company's shipping and receiving department employees , has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 3. Respondent Company, by discriminatorily refusing to reinstate Dana Colby, has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that Re- spondent Company unlawfully recognized Respondent Union as the bargaining representative of the Company's shipping and receiving department employees, I shall recom- mend that Respondent Company withdraw and withhold all recognition from Respondent Union as the collective-bar- gaining representative of such employees and cease giving effect to the December 19, 1973, agreement with respect to them, or to any extension, renewal, modification thereto, or to any superseding agreement, unless and until Respondent Union is certified by the Board as such representative. I shall also recommend that Respondents, jointly and sev- erally, reimburse all shipping and receiving department em- ployees, present and former, for dues and initiation fees un- lawfully exacted from them as a result of the aforesaid unlawful recognition, with interest, as provided in Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). See N.L.R.B. v. Getlan Iron Works, Inc., 377 F.2d 894 (C.A. 2, 1967). Having found that Respondent Company discriminatorily refused to reinstate employee Dana Colby, I shall recommend that it reinstate him, with backpay as provided in F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 20 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become ORDER20 579 A. Respondent Laconia Shoe Company, Inc., Laconia, New Hampshire, its officers, agents, successors, and assigns, shall: I Cease and desist from: (a) Encouraging membership in United Shoeworkers of America, AFL-CIO, CLC, or in any other labor organization of its employees by recognizing such labor organization as the exclusive representative of its shipping and receiving depart- ment employees at a time when such labor organization has not been designated by a majority of those employees. (b) Giving effect to its agreement of December 19, 1973, extending recognition to the aforesaid labor organization for the shipping and receiving department employees unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representa- tive of such employees. (c) Interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, and discriminating in regard to hire, tenure, and other conditions of employment in order to discourage union membership by refusing to reinstate employees because they engaged in pro- tected concerted activities. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Withhold and withdraw all recognition from Respond- ent Union as the exclusive representative of its shipping and receiving department employees unless and until the said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Jointly and severally with Respondent Union, reim- burse the shipping and receiving employees for any initiation fees, dues, or other moneys unlawfully exacted from them, in the manner set forth in the remedy. (c) Offer Dana Colby immediate and full reinstatement to his former position, or if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole as provided in the Remedy. (d) Present and upon request make available to the Board or its agents, for examining or copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business in Laconia, New Hamp- shire, copies of the attached notice marked "Appendix A."21 Copies of said notice, on forms provided by the Re- gional Director for Region 1, after being duly signed by Re- spondent's representative, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 21 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the works in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days thereafter, in a conspicuous place, including all places where notices to employees are posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material (f) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. B. Respondent United Shoeworkers of America, AFL-CIO, CLC, its officers, representatives, and agents, shall- 1. Cease and desist from: (a) Accepting exclusive recognition as the representative of the shipping and receiving department employees of the Re- spondent Company, at a time when it was not designated as the exclusive representative by a majority of such employees. (b) Giving effect to its agreement of December 19, 1973, with Respondent Employer, which extends recognition to it for the shipping and receiving department employees , unless and until it has been duly certified by the National Labor Relations Board as the exclusive representative of such em- ployees. (c) In any like or related manner restraining or coercing employees of Respondent Employer in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act (a) Jointly and severally with Respondent Company, reim- burse said Company's shipping and receiving employees for any initiation fees, dues, or other moneys unlawfully exacted from them, in the manner set forth in the Remedy. (b) Post at its business office copies of the attached notice marked "Appendix B."22 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by the Union's representative, shall be posted 22 See fn 21, supra immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to its members are customarily posted. Resonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX B NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT accept exclusive recognition as the rep- resentative of the shipping and receiving department em- ployees of Laconia Shoe Company when we have not been designated as the exclusive representative of such employees. WE WILL NOT give effect to our agreement of Decem- ber 19, 1973, with Laconia Shoe Company , unless and until we have been duly certified by the National Labor Relations Board as the exclusive representative of such employees WE WILL jointly and severally with Laconia Shoe Company make whole the shipping and receiving em- ployees for dues and initiation fees paid by them to us. WE WILL NOT in any like or related manner restrain or coerce employees of the above-named Company in the exercise of the rights guaranteed in Section 7 of the Act. UNITED SHOEWORKERS OF AMERICA, AFL-CIO, CLC