Somerset Shoe Company

In the Matter of SOMERSET SHOE COMPANY and UNITED SHOE WORKERS OF AMERIOA Cases Nos. C-278, R-3.1, and R-344 AMENDMENT TO DECISION AND ORDER May 17, 1939 On February 19, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Order in the above-entitled cases.' On April 13, 1939, the Board issued a notice of its intention to issue a specified amendment to its Decision and Order on April 24, 1939, or as soon thereafter as might be convenient, unless sufficient cause to the contrary should appear. The Board also notified the parties that they might file in writing with the Board on or before April 20, 1939, objections and arguments in support thereof, to the issuance of said amendment to the Decision and Order. Upon the request of the Somerset Shoe Company, herein called the respond- ent, the Board extended the time within which objections and argu- ments in support thereof, might be filed to April 28, 1939. The respondent also requested an opportunity to argue its objections orally, and the Board granted its request. Thereafter, both the United Shoe Workers of America, herein called the United, and the respondent filed exceptions to the issuance of said amendment to the Decision and Order. The respondent likewise filed a reply to the United's exceptions. Pursuant to notice of postponement, a hearing for the purpose of oral argument was held before the Board on May 4, 1939, at which the respondent and the United were represented by counsel. The Board has considered the respondent's exceptions and finds them to be without merit. The United, in its exceptions, alleges that it has information that the respondent "is hoping to evade its responsibility under the Act by acquiring the property or use of the Johnson Shoe Company, Norridgewock, Maine, to be operated as a separate unit in place of the normal operations performed in plants nos. 1 and 2 in Skowhegan, Maine." The United moved that the said amendment to the Decision and Order be expanded to conform with 15 N L. R. B. 486. 12 N. L R. B., No. 105. 1057 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its exceptions. In its reply, the respondent denied that it contem- plated acquiring the property of the Johnson Shoe Company or that it had any present intention of "opening any additional manufac- turing plants," and questioned the Board's "right" to issue an order "respecting the future places of business" of the respondent. Without passing upon the truth of the foregoing assertions con- tained in the United's exceptions, we shall nevertheless frame our amendment to meet the possibility which they suggest and we accord- ingly overrule the respondent's objections thereto. We find that in order to effectuate the policies of the Act and to remedy the situa- tion brought about by the respondent's unfair labor practices it is necessary that the respondent be ordered to offer the employees who were locked out on March 24, 1937, and who have not since been fully reinstated, reinstatement to their former or substantially equivalent positions at the respondent's Skowhegan Plants Nos. 1 and 2, or at any other plant which the respondent may acquire and operate in the future. By virtue of and pursuant to Section 10 (d) of the National Labor Relations Act, the Board hereby amends its Decision and Order in the above-entitled cases : 1. By striking therefrom all that appears in Section VI under the heading "The Remedy," and substituting therefor the following : VI. THE REMEDY It is clear that on March 29, 1937, when the United's request to bargain was received by the respondent, the United represented a majority of the respondent's employees. If doubt is now cast upon the majority status of the United, it is as a direct result of the unfair labor practices of the respondent. We cannot consider as the free expression of its employees any change in designation of representa- tives resulting from the respondent's unfair labor practices.2 To recognize the calculated effects of such practices would be to defeat the purposes of the Act. The United is entitled to be restored to its status as the representative of the majority of the respondent's em- ployees, and we shall order the respondent to bargain with the United upon request as the exclusive representative of the employees in the appropriate bargaining unit. As we have seen, the respondent locked out its employees on March 24, 1937, in violation of Section 8 (1) and (3) of the Act. On April 15, 1937, while the lock-out was still in effect, the Union S National Labor Relations Board v. Remington Rand, Inc., 94 F (2d) 862, cert den. 304 U S. 576; National Labor Relations Board v . Biles-Coleman Lumber Company, 96 F (2d) 197; National Labor Relations Board v Louisville Refining Company, 102 F (2d) 678; and Matter of Bradford Dyeing Association (U S. A ) (a Corporation ) and Tex- tile Workers' Organizing committee of the C. 1. 0., 4 N L. R B. 604. SOMERSET SHOE COMPANY 1059 voted to go on strike as a protest against the respondent's refusal to bargain and commenced to picket the plants. On May 11, 1937, when plant No. 1 reopened for production, it appears that reinstate- ment was offered to all employees. When employees voluntarily go on strike even in protest against unfair labor practices, it has been our policy not to award them back pay during the period of the strike.3 The commencement of the strike in the instant case, how- ever, did not terminate the respondent's obligation to make payments of back pay, since at the date of the strike the lock-out was still in existence and the strike had no effect on the situation. The strike became effective only when the respondent opened plant No. 1 for production on May 11, 1937, and indicated that jobs were available for the employees. We will, therefore, order the respondent to make whole all of its employees for any loss of pay they may have suf- fered by reason of the lock-out by payment to each of them of a sum of money equal to the amount which each normally would have earned as wages from March 24, 1937, to May 11, 1937, less his or her net earnings 4 during such period. The employees whom we have found to have been locked out on March 24, 1937, are entitled also to reinstatement upon application. We shall order the respondent to offer reinstatement to their former or substantially equivalent positions at the respondent's Skowhegan Plants Nos. 1 and 2, or at any other plant which the respondent may acquire,and operate in the future, to those employees who have not been since fully reinstated. Such reinstatement shall be effected in the following manner : All persons, now employed by the respondent at its Skowhegan Plants Nos. 1 and 2, or who may be employed by the respondent at any plant which it may acquire and operate in the future, who were not employees of the respondent on March 24, 1937, shall, if necessary to provide employment for all those who were employees of respondent on March 24, 1937, be dismissed. If there is 'Matter o f Carlisle Lumber Company and Lumber & Sawmill Worlers' Union, Local 2511, Onalaska , lVashington and Associated Employees of Onalaska , Inc., Intervener, 2 N L. R B. 248, aff'd 94 F. (2d) 138, cert den , 304 U S 575 ; Matter of American Manufacturing Company ; Company Union of the American Manufacturing Company; the Collective Bargaining Committee of the Brooklyn Plant of the American Manufacturing Company and Textile Workers' Organization Committee, C I. O , 5 N L R B. 443; Matter of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N. L F. B. 1252 4 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer,ca, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440 Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings, but, as provided below in the Order , shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county . municipal , or other govern- ment or governments which supplied the funds for said work -relief projects. 169134-39-vol 12-68 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not sufficient employment then immediately available for all persons who were employees on March 24, 1937, all available positions shall be distributed among such employees in accordance with the respond- ent's usual method of operation under curtailed production, without discrimination against any employee because of his union affiliation or activities , following a system of seniority to such extent as was applied in the conduct of the respondent's business prior to March 24, 1937. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a pref- erential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter , in accordance with such list, be offered employment in their former or in substantially equivalent positions, as such employment becomes available because of the opening of Plant No. 2 or because of the acquisition and opera- tion of any newly acquired plant or for any other reason, and before other persons are hired for such work. 2. By striking therefrom all that appears under the heading "Order" and substituting therefor the following: ORDER On the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Somerset Shoe Company, Skowhegan, Maine, and its' officers, agents, successors, and assigns, shall: 1. Cease and desist from discouraging membership in the United Shoe Workers of America, or any other labor organization of its employees, by discriminating in any manner in regard to the hire or tenure of employment of any of its employees. 2. 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 purpose of collective bargain- ing or other mutual aid and protection , as guaranteed in Section 7 of the National Labor Relations Act. 3. Cease and desist from refusing to bargain collectively with United Shoe Workers of America as the exclusive representative of its Skowhegan employees, excluding supervisory and clerical em- ployees, in respect to rates of pay, wages, hours of employment, and other conditions of employment. SOMERSET SHOE COMPANY 1061 4. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make whole all employees who were laid off by reason of the shut-down on March 24, 1937, for any loss of pay suffered by reason of such shut-down by payment to each of them of a sum of money equal to that which each would normally have earned as wages during the period from March 24, to May 11 , 1937, less his or her net earnings, if any, during that period, deducting however from the amount otherwise due to each of the said employees monies received by said employee during said period for work upon Federal , State, county, municipal, or other work-relief projects and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal , or other government or governments which supplied the funds for said work -relief projects; (b) Upon application, offer all persons in the employ of the respondent on March 24, 1937, who have not since been fully rein- stated, reinstatement to their former or substantially equivalent posi- tions at the respondent's Skowhegan Plants Nos. 1 and 2, or at any other plant which the respondent may acquire or operate in the future, without prejudice to their seniority and other rights and privileges in the manner set forth in the section entitled "The Remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section; and thereafter, in said manner, offer them employment as it becomes available; and make whole said employees for any loss of pay they may suffer by reason of any refusal of reinstatement or place- ment upon the preferential list, by payment to each of them of a sum of money equal to that which each would normally have earned as wages during the period from five (5) days after the date of applica- tion to the date of the offer of reinstatement or placement upon the preferential list, less his or her net earnings during said period; de- ducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Upon request, bargain collectively with United Shoe Workers of America, as the exclusive bargaining representative of its Skow- hegan production employees, excluding supervisory and clerical employees ; (d) Post immediately notices to its employees in conspicuous places through its plants stating that the respondent will cease and 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desist in the manner aforesaid, and maintain such notices posted for a period of at least sixty (60) consecutive clays from the date of posting; (e) Notify the Regional Director for the First Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. AND IT Is FURTHER ORDERED that the petitions for investigation and certification of representatives, filed by United Shoe Workers of America, be, and it hereby is, dismissed.