Clark Shoe Co.

In the Matter Of CLARK SHOE COMPANY and UNITED SHOE WORKERS OF AMERICA Case No. 0-789.-Decided November 30, 1939 Shoe Manufacturing Industry-Interference, Restraint, and Coercion-Unit Appropriate for Collective Bargaining : all employees of the respondent at its Auburn, Maine, plant, excluding supervisory and office employees , foremen, assistant foremen, and salesmen ; stipulation as to-Representatives : proof of choice: majority received ' by,iinion in consent election presumed to continue; change in union membership irrelevant-Collective Bargaining: refusal to bar- gain with representatives after consent election ; bad faith in delaying negotia- tions ; ordered to bargain with Union. Mr. Norman F. Edmonds, and Mr. Edward Schneider, for the Board. Mr. David V. Berman, of Lewiston, Maine, and Brann & Isaacson, by Mr. Peter Isaacson, of Lewiston, Maine, for the respondent. Mr. A. Raymond Rogers, of Lewiston, Maine, and Mr. Leo Good- man, of Washington, D. C., for the U. S. W. Mr. Paul S. Kueltlaau and Miss Ann Landy, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by United Shoe Workers of America, herein called the U. S. W., the National Labor Relations Board, herein called the Board, by the Regional Director for the First Re- gion (Boston, Massachusetts), issued its complaint, dated March 25, 1938, against Clark Shoe Company, Auburn, Maine, 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) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and the U. S. W. With respect to the unfair labor practices the complaint alleged, in substance: (1) that all employees of the respondent at its Auburn, 17 N. L. R. B., No. 108. 1079 247384-40-vol. 17-09 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maine, plant, excluding supervisory and office employees, foremen, assistant foremen, and salesmen, constitute a unit appropriate for the purposes of collective bargaining; (2) that on May 29, 1938, and at all times thereafter, a majority of the employees within said unit had designated the U. S. W. as their representative for the purposes of collective bargaining; (3) that the respondent did then refuse and has at all times since refused to bargain collectively in good faith with the U. S. W. as the exclusive representative of all em- ployees within said unit; (4) that by the aforesaid refusal to bargain in good faith and by other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On March 29, 1938, the respondent filed its answer denying that it had engaged in unfair labor practices as alleged in the complaint and alleging that since July 26, 1937, Lewiston-Auburn Shoe Work- ers Protective Association, herein called LASPA, has claimed -to represent a majority of its employees, has exhibited proof of the fact to the respondent, and has threatened to strike if the respondent entered into an agreement with the U. S. W. Pursuant. to -notice, a hearing was held at Auburn, Maine, .from April 12 to 14, 1938, before Samuel H. Jaffee, the Trial Examiner duly designated by the Board. The Board, the respondent, and the U. S. W. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing upon. the issues was afforded all parties. At the close of the Board's case, counsel for the respondent moved to dismiss that part of the complaint which alleged that by acts other than its refusal to bargain the respondent had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Counsel for the Board and for the U. S. W. did not oppose the motion and it was 'granted by the Trial Examiner. His ruling is hereby af- firmed. At the same time counsel for the respondent moved to dismiss the allegation of the complaint charging that the respondent by refusing to bargain with the U. S. W. had interfered with, restrained, and coerced its employees in the exercise of rights guar- anteed in Section 7 of the Act, on the ground that a refusal to bargain collectively does not interfere with, restrain, or coerce em- ployees in the exercise of rights guaranteed in that section. The Trial Examiner reserved ruling on that motion and when it was renewed at the close. of the hearing denied it. At the close of the Board's case and again at the close of the hearing, counsel for the respondent moved to dismiss the other allegations of unfair labor practices in the complaint as not supported by the evidence. The Trial CLARK SHOE COMPANY 1081 Examiner reserved ruling on those motions. During the course of the hearing the Trial Examiner ruled on other motions and on objections to the admission of evidence. At the conclusion of the hearing the-parties argued orally before the Trial Examiner. On July 15, 1938, the Trial Examiner filed his Intermediate Re- port, dated July 12, 1938, copies of which were duly served on all parties. In the Intermediate Report the Trial Examiner denied the respondent's motions to dismiss the complaint on which he had reserved ruling at the hearing, found that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1)' and (5) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. The time for filing exceptions having been extended to August 4, 1938, the respondent that day filed exceptions to the Intermediate Report and requested oral argument before the Board. Pursuant to notice a hearing for the purpose of oral argument was held before the Board in Washington, D. C.,' on February 2, 1939. The respondent and the U. S. W. appeared by counsel and participated in the argument. Thereafter' the respondent filed a brief which the Board has considered. On May 9, 1939, the Board, acting pursuant to Article II, Section 36, of National Labor Relations Board Rules and Regulations- Series 1, as amended, ordered that the record in the case be reopened, that a further hearing be held, and that the proceeding be remanded to the Regional Director for the First Region for the purpose of con- ducing such further hearing, and authorized the Regional Director to issue notice of such further hearing. On June 26, 1939, the Regional Director issued a notice of further hearing, copies of which were duly served upon the respondent and the U. S. W. Pursuant to the notice, a hearing was held at Auburn, Maine, on July 6, 1939, before Thomas S. Wilson, the Trial Examiner duly designated by the Board. The Board, the respondent, and the U. S. W. were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties.' In the course of the hearing, Trial Examiner Wilson ruled upon a number of objections to the admission of evidence. 1 At the opening of the hearing, counsel for the Board announced that it was his pur- pose to resolve an ambiguity in the record of the hearing before Trial Examiner Jaffee by showing that a consent election held among employees of the respondent on May 29, 1937 , was in fact held among the employees within a unit , the appropriateness of which the parties had stipulated at the hearing held before Trial Examiner Jaffee. The evidence introduced at the hearing before Trial Examiner Wilson, so far as here material, was addressed to that point. 1082 DECISION'S OF NATIONAL LABOR RELATIONS BOARD On Augtist 3, 1939, the Board ordered that the Intermediate Report of Trial Examiner Jaffee be vacated and set aside, and on August 19, 1939, issued Proposed Findings of Fact, Proposed Conclusions of Law, and a Proposed Order. Pursuant to an extension of time granted by the Board on August 31, 1939, the respondent on September 13, 1939, filed exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. On October 4, 1939, pursuant to permission re- quested on September 13 and granted by the Board on September 19, 1939, the respondent filed a brief in support of its exceptions. Pursuant to an extension'of time granted by the Board on Septem- ber 23; 1939; a hearing was, held befo`fe the Board on October 12, 1939, for the purpose of oral argument. The respondent and the U. S. W. appeared by counsel and participated in the argument. The Board has reviewed the rulings of Trial Examiner Jaffee upon motions and the rulings of both Trial Examiners upon objec- tions to the admission of evidence and finds that no prejudicial errors were committed. All the rulings are hereby affirmed. The respond- ent's motions to dismiss the complaint, made at the hearing before Trial Examiner Jaffee, are hereby denied. The Board has considered the exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, and the brief in support thereof, and in so far as the exceptions are incon- sistent with' the ' findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, Clark Shoe Company, is a Maine corporation en- gaged in manufacture and sale of shoes at Auburn, Maine. Between November 1, 1936, and March 31, 1938, the respondent purchased raw materials-leather findings, cloth, nails, tacks, upper leather, sole leather, lining counters, fabric, and thread-costing $1,264,825, 95 per cent of which were purchased outside Maine. During the same period the respondent manufactured 1,128,431 pairs of shoes valued at $2,995,800, approximately 95 per cent of which were trans- ported by the respondent to points outside the State of Maine. ' H. THE ORGANIZATION INVOLVED United Shoe Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to mem- bership persons employed in the respondent's plant. CLARK SHOE COMPANY 1083 III. THE REFUSAL TO BARGAIN COLLECTIVELY A. The appropriate unit The parties stipulated at the hearing that all employees of the respondent at its Auburn, Maine, plant, except supervisory and office employees, foremen, assistant foremen, and salesmen , constitute a unit appropriate for the purposes of collective bargaining We find no reason for departing from that stipulation. We find that all employees of the respondent at its Auburn , Maine, plant, excluding supervisory and. office employees , foremen, assistant foremen, and salesmen , constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to the employees of the respondent the full benefit of their right to self -organization and to collective bargaining and will otherwise effectuate the policies of the Act. B. Representation by the U. S. TV. of a majority in the appropriate unit On May 20, 1937, during a strike called by the U. S. W. at the re- spondent's plant, the respondent and the U. S. W. entered into an agreement which provided for an election under the supervision of Thomas J. Williams, Commissioner of Conciliation of the United States Department of Labor, and A. Howard Myers , the Board's Regional Director for the First Region, on ' May 29; 1937, to deter- mine whether the respondent's employees desired to be represented by the U. S. W. or by LASPA. The respondent agreed to negoti- ate with the former if it received a majority of the votes cast. The agreement also provided that all persons on the respondent's pay roll on March 25, 1937, should be entitled to vote and that within 7 days after the election all such employees should be returned to their former positions as far as work was available. Pursuant to the agreement an election was held on May 29, 1937. The eligibility list for participation in the election contained the names of 703 persons, within the appropriate unit. Although LASPA was not a party to the agreement, it participated in the election and was represented at the polls . Representatives of the respondent, the U. S. W., and LASPA, as well as Williams and Myers, certified that the election "was conducted in an entirely fair, impartial and satisfactory manner and that every eligible voter had an opportunity to vote." The results of the election, as certified by the above-named parties, were : the U. S. W. 343 votes, LASPA 289, and 6 void ballots. The election was actually held among the employees within the appropriate unit and the U. S. W. was the 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clear choice of a majority of those voting. The respondent was therefore under obligation to bargain with the U. S. W. as repre- sentative of all the employees in the appropriate unit.2 The respondent contends that after July 26, 1937, the U. S. W. majority was questionable and that when on August 31 LASPA submitted 304 signed cards, the respondent had reason to doubt that the U. S. W. continued to represent the majority of its employees. For the reasons stated below 3 this contention is without merit. We find that on May 29, 1937, and at all times thereafter, the U. S. W. was the duly designated representative of a majority of the employees of the respondent in the appropriate unit. Pursuant to Section 9 (a) of the Act, the U. S. W. was and is, therefore, the exclusive representative of all employees in such unit for the pur- poses of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of work. C. The refusal to bargain After the election, conferences were held between the U. S. W. and the respondent on June 10 and 17, July 27, August 11 and 27, and September 15, 1937. Other conferences were arranged but post- poned; A. Raymond Rogers, counsel for the U. S. Var., and Peter Isaacson, counsel for the respondent, met several times during this period in the latter's office. Throughout the negotiations with the U. S. W. the respondent was represented by Hyman Cohen, a director and officer, and Peter Isaacson, counsel. Samuel Cohen, respondent's president and pro- duction manager was also present at some of the meetings. Cohen found it necessary to be in Boston a great part of the time and it was often difficult to arrange conferences since he was the only officer of the respondent with authority to engage in negotiations. At the hearing Hyman Cohen was able to remember little of what transpired at the meetings with the U. S. W. and the Trial Examiner found in regard to his testimony : "He was evasive, contradictory, and often purposely `forgetful."' Isaacson did not testify fully con- cerning all the conferences and the other representatives of the re- spondent who were present at some of the conferences were not called to testify. At the first conference, on June 10, the U. S. W., represented by Bernard McGovern and George Cohen, asked for a closed-shop con- tract. Samuel Cohen stated that he would not sign any agreement with the U. S. W. because of the large LASPA membership in the 2 See Matter of R. C. A. Manufacturing Company, Inc . and United Electrical d Radio Workers of America, 2 N. L. R. B. 159. 8 Section III , D, infra. CLARK SHOE COMPANY 1085 plant. At the second conference on June 17, at which the U. S. W. was represented by Daniel J. Collins and George Gorham, Hyman Cohen reiterated the respondent's position in regard to a contract with the U. S. W. and exhibited to the U. S. W. representatives a letter from Frank W. Linnell, counsel for LASPA, in which LASPA asked for recognition as the bargaining agency for its members. Cohen would not agree to recognize the U. S. W. as the exclusive bargaining agency for all employees but offered to recognize it for its members only. After some dispute, the terms of a proposed con- tract with the U. S. W. were discussed. On July 26, 27, and 28, 1937, LASPA circulated among the re- spondent's employees the authorization cards upon which it later based its claim to majority representation. In obtaining the signa- tures on these cards, LASPA took advantage of the respondent's failure to bargain with the U. S. W. by distributing in the plant a mimeographed letter to the employees soliciting their membership which stated in part: .. . Do you realize how near we all are to losing our jobs? Do you know that the Clark Shoe Company is going to move out of town unless they get a peaceful group of employees? The Clark Shoe Company must be kept in Auburn if we are to keep our jobs. They have shown that they do not want the CIO representing the workers for if they had wanted them they would have signed their contract ten weeks ago . . . (Italics supplied.) At the succeeding conferences between the U. S. W. and the respondent, the former was represented by A. Raymond Rogers, Paul Salvaggio, and William Mackesy, the latter two being organizers for the U. S. W. At the July 27 conference the U. S. W. modified its closed-shop demand so that it was acceptable to the respondent and all terms of the contract appear to have been agreed upon. At the close of the conference, Hyman Cohen objected to a provision for a 5-per cent increase in wages to go into effect on November 1, 1937, and asked that it be postponed until December 1, 1937. Neither side regarded this as a very important matter and arrangements were made to meet the following Tuesday to sign the contract which was to be drawn by Rogers in accordance with the agreement arrived at during the meeting. On July 29 or 30 the U. S. W. representatives were called to Isaacson's office. Hyman Cohen was not present and Isaacson in- formed the U. S. W. that LASPA had filed a petition for investiga- tion and certification of representatives under Section 9 (a) of the Act with the Regional Director for the First Region. The respond- 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent did not give notice, however, that the filing of the petition would interfere with negotiations. The next conference took place on August 11. At this conference Rogers presented a contract drawn in accordance with the agree- ment arrived at at the July 27 meeting. The contract provided that the 5-per cent raise would be effective on November 1, a point which had not been settled at the July 27 conference. The respondent objected to signing this contract on the ground that LASPA would strike if the respondent signed with the U. S. W. The 5-per cent raise was also discussed and the U. S. W. indicated that it was will- ing to change the effective date to December 1, if the respondent insisted. The conference ended when Hyman Cohen stated that he would like to go over the contract with other persons who were interested in the respondent and agreed to reconvene the following week. Since Hyman Cohen was out of the city there was no meeting the next week and the parties did not meet again until August 27. In the interim, on August 19, Frank W. Linnell, attorney for LASPA, wrote to the respondent that LASPA had become the representative of a majority of the respondent's employees, inasmuch, as 365 em- ployees had signed authorization cards designating LASPA. He requested the respondent "not to complete any contract with the United Shoe Workers of America until we have had an opportunity to, conclude our negotiations with the Labor Board." (Italics sup- plied.) Hyman Cohen testified that it was upon the receipt of this letter and the discussion of it with Isaacson that he decided not to enter into a contract with the U. S. W. Both Hyman Cohen and Isaacson testified that they did not know whether they saw this letter before or after the August 27 meeting, but thought that they prob- ably saw it only after that meeting. At the August 27 meeting, nothing was said about Linnell's letter. Hyman Cohen presented a new proposed contract, the so-called Kobrin Agreement, which contained changes in the contract drawn by Rogers at the direction of both parties. After a full discussion the parties again agreed upon terms and Isaacson was directed to draw another contract to embody their agreement. Although the matter of the 5-per cent raise was not definitely settled, the U. S. W. again. indicated that it would not insist on November 1 is its effective date, The conference was to reconvene on August 31. Upon Isaacson's testimony we find that some time between August 26 and August 29 he requested Linnell to present proof of his claim of majority representation as set forth in Linnell's letter of August 19. Linnell presented 304 signed slips purporting to designate CLARK SHOE COMPANY 1087 LASPA as the bargaining agent in the respondent's plant. Linnell admitted that he had no personal knowledge as to the facts con- cerning the signing or circulation of these slips.4 He testified that a LASPA member had handed them to him and told him something about them. Isaacson did not count these cards or check the names against the pay roll.. On August 31 Isaacson invited Rogers to his office and there in- formed him for the first time that the respondent had received Linnell's August 19 letter and had been shown proof of LASPA's majority. He added that the meeting scheduled for that day was off and that the respondent would not meet with the U. S. W. until the question of majority representation was settled. On September 1, 1937, the Board dismissed LASPA's petition for investigation and certification of representatives.5 Linnell testified that Isaacson was kept informed of the Board's action on LASPA's petition and was promptly notified of the dismissal. Notwithstanding Isaacson's statement that the respondent would cease bargaining, another conference was held on September 15. Before that date Isaacson had prepared a contract as directed by the parties on August 27. At the September 15 conference Hyman Cohen announced that the respondent would not sign any contract with the U. S. W. because of the claims and threats of LASPA. That ended the negotiations except for attempts on the part of the Board's Regional Office to arrange further conferences and reopen negotiations in February and March 1938, which came to naught. D. Conclusions regarding the refusal to bargain We find that by terminating its negotiations with the U. S. W. on September 15, 1937, the respondent refused to bargain collectively within the meaning of Section 8 (5) of the Act, and that the re- spondent's asserted justification, that on that date the Union no longer represented a majority of the employees, lacks merit. The fruition of collective bargaining in an agreement often requires negotiations lasting several months. It is therefore essential to the effectuation of the policies of the Act that the representative status, once established, be vested with a degree of stability. Thus, in a recent case,° we held that a refusal to bargain with representatives 7 months after their certification by the Board can not be justified 4 The slips were admitted in evidence merely to show the transaction but not to prove their contents. On June 20 , 1939, LASPA filed with the Regional Director a second petition for in- vestigation and certification of representatives , and on August 1, 1939, the Board dis- missed that petition also. e Matter of Whittier Mills Company and Silver Lake Company, 15 N. L. R. B. 457. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by challenging their authority to deal for a majority. No reason appears why a different rule should be applied in the instant case. The authority of the U. S. W. as sole bargaining agent was estab- lished in a consent election under the aegis of the Board. The fair- ness of the election is not questioned. Promptly after the election the U. S. W. opened negotiations for a contract. To permit the respondent with impunity to interrupt the bargaining process and evade agreement by challenging the authority of the U. S. W. only 4 months after its designation in the election would be to render meaningless the respondent's duty and its employees' correlative right to bargain collectively. Further, the respondent's conduct throughout the negotiations in- dicates that it approached the conference table determined not to enter into an agreement, that it refused to bargain from the first. It may be noted that the U. S. W.'s majority prior to July 26, 1937, is not disputed. Yet at the very first conference, on June 10, the respondent invoked the existence of LASPA which had lost the consent election as an excuse for refusing to contract with the U. S. W. Thereafter, the excuse was frequently reiterated by the respondent, indicating that the respondent favored LASPA over the U. S. W. So, too, when agreement seemed imminent, the respondent introduced a new form of contract requiring further technical re- vision. We are of the opinion that the respondent, desiring to avoid agreement, delayed negotiations in the hope that through LASPA's intervention it would be relieved of its obligation to deal with the U. S. W., and that by such conduct it refused to bargain collectively within the meaning of Section 8 (5) of the Act. Upon the entire record, we find that the respondent on and after June 10, 1937, and on September 15, 1937, refused to bargain col- lectively with the U. S. W. as the representative of its employees in the appropriate unit in respect to rates of pay, wages, hours of em- ployment, and other conditions of work. We further find that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. 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 re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. CLARK SHOE COMPANY V. THE REMEDY 1089 We have found that the respondent refused to bargain with the U. S. W. on June 10, 1937, and thereafter. In order to restore the situation existing before June 10, 1937, we shall order. the respondent to cease and desist from its unfair labor practices and, upon request, to bargain with the U. S. W. as the exclusive representative of its employees within the appropriate unit. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Shoe Workers of America is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All employees of the respondent at its Auburn, Maine, plant, except supervisory and office employees, foremen, assistant foremen, and salesmen, constitute a unit appropriate for the purposes of col- lective bargaining, within the meaning of Section 9 (b) of the Act. 3. United Shoe Workers of America, is and at all times since May 29, 1937, has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with United Shoe Workers of America as exclusive representative of the employees in such unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the respond- ent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. 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 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 respondent, Clark Shoe Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Shoe Workers of America as the exclusive representative of all employees at its 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Auburn, Maine, plant, except supervisory and office employees, fore- men, assistant foremen, and salesmen; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or 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) Upon request, bargain collectively with United Shoe Workers of America as the exclusive representative of all employees at its Auburn, Maine, plant, except supervisory and office employees, fore- men, assistant foremen, and salesmen; (b) Immediately post notices in conspicuous places throughout its Auburn, Maine, plant, and maintain such notices for a period of sixty (60) consecutive days, stating that the respondent will cease and desist as aforesaid and that it will take the affirmative action set forth in 2 (a) of this Order; (c) 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 herewith.