Beckerman Shoe Corp.

In the Matter of BECKEItMAN SHOE CORPORATION and UNITED SHOE WORKERS OF AMERICA In the Matter of BECKERMAN SHOE CORPORATION and COMMIrPF.E FOR EMPLOYEES AFFILTATED WITH THE C. I. 0. Cases Nos. C-53-3 and R-654, respectively.-Decided January 24, 1940 Shoe Man:nfacturinq Ind.ustr,j-Interlcren.ce, Restraint, and Coercion: state- ments by Company president urging employees to resume membership in a favored union and villifying rival union-Disciioni,nation: closing of plant to discourage union membership, charges of, not sustained where shut-down and lay-off of employees was solely for business reasons---Contract: closed-shop, no justification for anti-union statements by Company president-Collective Bar- gaining: charges of refusal to, dismissed for lack of evidence-Investigation of Representatives: petition for, disinisse4, in view of continued shut-clown of plant at time of hearing and lapse of more than 2 years since petition was filed. Mr. Mark L(tater, for the Board. Goldfarb & Fleece, by Mr. Charles L. Fleece, of New York City, for the respondent. Mr. Harry Sacker and Mr. John Brawn, of New York City, and Mr. Leo Goodman, of Washington, D. C., for the United. Mr. Charlton Ogbwrn, Mr. Arthur E. Reyman, and Mr. C. C. Johnson, of New York City, for B. S. W. U. Mr. Roman Beck, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On June 21, 1937, the Committee for Employees Affiliated with the C. I. 0.,1 herein called the Committee, filed with the Regional Director for the Second Region (New York City) a petition alleg- ing that a question affecting commerce had arisen concerning the representation of employees of the Beckerman Shoe Corporation, Brooklyn, New York, herein called the respondent, and requesting I See footnote 6, infra. 19 N. L. R. B., No. 88. 820 BECKERMANSHOE CORPORATION 821 an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On December 11, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Re- lations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director 2 to conduct it and to provide for an appropriate hearing upon due notice. Upon charges filed by United Shoe Workers of America, affiliated with the Committee for Industrial Organization,3 herein called the United, the Board, by Elinore M. Herrick, Regional Director for the Second Region, issued its complaint dated December 17, 1937, against 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), (3), and (5) and Section 2 (6) and (7) of the Act. The complaint alleged in substance: (1) that the respondent had intimidated its employees since July 1, 1937, to deter them from membership in the United and had threatened to discharge them and to remove its business operations from Brooklyn if they did not join the Boot and Shoe Workers' Union, affiliated with the A. F. of L., herein called B. S. W. U.; (2) that on August 6, 1937, the respondent locked out all but its clerical and supervisory em- ployees and had since refused to reinstate such employees because they had joined and assisted the United; (3) that, in accordance with previous threats, the respondent removed its business operations from the Brooklyn plant; and (4) that although the United had been designated by a majority of the respondent's employees within an appropriate bargaining unit as their representative for collective bargaining, the respondent on August 11, 1937, and thereafter, had refused to bargain collectively with it. A copy of the complaint, accompanied by a notice of hearing, was duly served upon the re- spondent, upon the United, and upon B. S. W. U. The respondent thereafter filed an answer to the complaint denying the commission of the unfair labor practices charged. With its answer the respond- ent filed a notice of its intention to move before the Trial Examiner for a dismissal of the complaint upon the ground that the charges did not set forth the names of the persons involved in and the time and place of occurrence of the unfair labor practices alleged in the complaint, and for certain alternative relief. 2On September 16, 1937, the Board acting pursuant to Article II, Section 37 (c), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered the representation proceeding to be transferred to the Fourth Region. On October 5, 1937. the Board ordered the representation proceeding to be retransferred and continued in the Second Region. s Now the Congess of Industrial Organizations. 283030-41-vol. 19 53 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 11, 1937, the Board acting pursuant to Article II, Section 37 (b), and Article III, Section 10 (c) (2), of said Rules and Regulations, ordered that the representation proceeding be consoli- dated for the purposes of hearing with the proceeding relating to the alleged unfair labor practices. On December 17, 1937, the Regional Director issued a notice of hearing, copies of which were duly served upon the respondent, upon the United, and upon B. S. W. U. Pursuant to the notice, a con- solidated hearing on the complaint and petition "was held at New York City from January 3 to 8, 1938, before Charles A. Wood, the Trial Examiner duly designated by the Board. The Board, the respondent, and the United were represented by counsel and par- ticipated in the hearing. At the opening of the hearing B. S. W. U. appeared by counsel and filed a petition for leave to intervene in the proceeding with respect to the unfair labor practices. The motion was granted and thereafter counsel for B. S. W. U. participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the hearing the respondent presented its motion, heretofore mentioned, to dismiss the complaint because of a lack of particularity in the charge. The motion was denied. The ruling is hereby affirmed. The function of the charge is to call the attention of the Board to the fact that certain unfair labor practices are alleged to have been committed. It is not essential that the charge describe the unfair labor practices with the same particularity as the complaint.' Since the complaint alleged that the respondent had locked out all but its clerical and supervisory employees, it was unnecessary to set forth the names of the individual employees. Nor is there merit in the other aspects of the motion, inasmuch as the complaint set forth the time and place of occurrence of the alleged unfair labor practices with adequate particularity. , Various other motions and objections to the admission of evidence were made and ruled upon at the hearing. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed., 4 Cf. .S,wift c€ Company v. National Labor Relations Board. 106 F. (2d) 87 (C. C. A. 10), enf'g as modified Matter of Swift ci Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, and United Packing House Workers Local Industrial Union No. 300 , 7 N. L. It . B. 269. In its exceptions to the Intermediate Report B. S. W. U. challenged the propriety of the Trial Examiner's ruling excluding Intervenor Exhibit 4 , for identification , consisting of certain B. S. W. U . membership application cards. The Trial Examiner excluded the cards because B . S. W. U. offered them in evidence upon condition that they be disclosed to no one but counsel . We need not determine the correctness of this ruling since counsel for the Intervenor stated that his only purpose in offering the cards was to show that certain of respondent's employees were members of B. S. W. U . at the time of the hearing. 1-Ie further stated that he was not attempting to show that B. S. W. U . then represented a majority of the employees . Tinder the circumstances , the exclusion of the cards was not prejudicial. BECKERMAN SHOE CORPORATION 823 On April 13, 1938, the Trial Examiner filed his Intermediate Re- port, copies of which were duly served upon the respondent, upon the United, and upon B. S. W. U., in which he found that the respond- ent had committed unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from such unfair labor practices and take certain affirmative action remedial of their effect.. In addition, the Trial Examiner found that the respondent had not refused- to bargain collectively with the United, and recommended that the allegations of the complaint with respect thereto be dismissed. The respondent and B. S. W. U. there- after filed exceptions to the Intermediate Report, but no exceptions were filed by the United. Pursuant to notice, hearings for the purpose of oral argument on the exceptions to the Intermediate Report were held on August 16, 1938, and on July 6, 1939, before the Board in Washington, D. C. At the hearing on August 16, 1938, the respondent and the United appeared by counsel who requested permission to submit briefs, but waived oral argument. Thereafter the respondent and the United submitted briefs, which the Board has considered. At the hearing on July 6, 1939, the respondent and B. S. W. U. were represented by counsel and the United by its representative, all of whom participated in the argument. The Board has fully considered the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Beckerman Shoe Corporation is a New York corporation having its principal office and place of business in Brooklyn, New York, where it was engaged in the manufacture and sale of shoes and related products at the times hereinafter mentioned. The principal materials which the respondent used in its business were leather, thread, linings, rubber heels, and soles, most of which were obtained by the respond- ent from the States of Illinois, Massachusetts, and Ohio. During the period from January 1 to December 31, 1937, the respondent's purchases of such materials amount to approximately $150,000, of which about $125,000 or 831/3 per cent were delivered to the respond- ent from localities outside the State of New York. During the same period the respondent's sales amounted to approximately $200,000, 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of which about $150,000 or 75 per cent were sold and delivered out- side the State of New York. The respondent stipulated that for the purposes of this proceeding it is engaged in commerce within the meaning of Section 2 of the Act. H. THE ORGANIZATIONS INVOLVED Committee for Employees Affiliated with the C. I. 0.6 is a labor organization affiliated with the Committee for Industrial Organiza- tion.' United Shoe Workers of America .is a labor organization, affiliated with the Committee, for Industrial Organization, admitting to mem- bership production employees of the respondent. Boot and Shoe Workers' Union is a labor organization, affiliated with the American Federation of Labor, admitting to membership production employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The alleged lock-out; interference, restraint, and coercion In September 1935 the respondent entered into a contract with B. S. W. U. which dealt with wages, hours, and other working con- ditions.8 This contract contained the following provisions : SECOND : EMPLOYMENT OF UNION WORKERS (a) The Union agrees to furnish, upon demand a sufficient number of stitchdown shoe workers of the Union aforesaid. (b) The Employer shall employ in his factory, only such workers who are members, in good standing, of the Union. While the record contains little detailed evidence relating to the structure and function of the Committee for Employees Affiliated with the C. I. 0., the record•as a whole makes it clear that this committee was elected by several thousand members of B. S. W. U. who attended a mass meeting held in Brooklyn, New York,. on May. 27, 1937, at which it was resolved to secede from B. S. W. U. and affiliate with the United. This committee was elected to carry into effect the resolutions adopted at that meeting. Petitioner's Exhibit 2 is a formal ratification by the United of the institution in its behalf by the Committee of the representation proceeding in this case. 7 Now the Congress of Industrial Organizations. 8 When the contract was executed and thereafter until May 27, 1937, the production employees of the shoe-manufacturing industry in the metropolitan district of New York belonged to various local labor unions which comprised the Joint Council of Greater New York, District Number 26 of B. S. W. U. During this period most, if not all, of the respondent's production employees were members of Local No. 673 of B. S. W. U., affiliated with the Joint Council. Local No. 673 was a stitch-down union (deriving its name from the.type of shoes produced) having about 350 members recruited from 5 New York stitch-down factories. BECKERMAN SHOE CORPORATION SIXTH : STRIKES, STOPPAGES AND ARBITRATION 825 (a) There shall be no stoppage of work through strikes, walkouts or lockouts or any kind of industrial dispute. Should any controversy or dispute arise with respect to a violation of the terms of this agreement by either party, unless the manner of determining the same is specifically set forth herein, the same shall be submitted to arbitration as hereinafter provided . . . (c) The matters contained in paragraph "Second", subdivision (b) hereof, shall not be subjects for arbitration. The contract further provided that it should continue in effect until September 17, 1936, and from year to year thereafter unless a timely notice of abrogation was served by either party on the other. Neither party served such a notice during 1936 and the contract was therefore automatically extended until September 17, 1937. Despite the provision in the contract forbidding strikes and re- quiring arbitration, the respondent's employees went on strike for increased wages in February 1937. The strike continued for a period of 12 weeks and was settled upon the respondent's granting a 5-per cent general wage increase. As has been noted, the contract was in effect at this time since its term had been extended to September 17, 1937. Notwithstanding the settlement of this strike, the respondent's employees ceased work on four occasions thereafter. The respondent and B. S. W. U. introduced in evidence their correspondence relating to these disruptions of production. The facts set forth in this corre- spondence were not disputed. The serious detriment to the respond- ent's production consequent upon the discontent manifested through- out the period of "these strikes is described in the extracts which follow from the respondent's letter dated April 30, 1937, to the Eastern Representative of B. S. W. U.: Up to the present writing, I did not hear from you in refer- ence to our letter of April 19th, when you promised that you would take this matter up with your Boston office [the main office of B. S. W. U.], and see that the people will live up to their agreement signed by them, so. that I should be able to manufacture and sell shoes at the prices we agreed to pay the people. Since I wrote this letter of April 9th,811 we had four stoppages. Of course, I am not running this factory any more. They are running the factory and we gave them whatever they wanted, in order that we could start to operate again. 8a Although the original exhibit refers to "this letter of April 9th" it is evident that the writer intended to refer to the letter mentioned in the preceding paragraph as the letter of April 19th. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Now, remember, we are telling you to take action. I am going to see my attorney and will sue you for all the damages we can, as we are losing money every day in our Brooklyn factory and it seems that we cannot stop it. The people have no respect for our foremen nor for me. The shoes are coming out very bad and if we tell them anything, they just stop working and do not care what will happen. Perhaps, it would be advisable to stop operations until you will be able to straighten this out once and for' all, as we cannot make the proper shoes for our customers and we have many complaints that the shoes are not right and are losing a lot of business. I would appreciate, very much, if you do something for me at once, or come down to see me as soon as you receive this letter. The Joint Council of B. S. W. U. called a mass meeting for May 27, 1937, at Arcadia Hall, Brooklyn, of all members of its constituent unions. At this meeting, which was attended by more than 5,000 persons, it was voted to secede immediately from B. S. W. U. and affiliate with the United.9 The record shows that between 50 and 60 of the respondent's .production employees attended.this mass. meet- ing.10 There is no evidence in the record that the respondent knew of this meeting or of the vote to secede from B. S. W. U. at this time. In a subsequent letter to B. S: W. U., dated June 2, 1937, the respondent said : If you can't straighten matters out the best thing for us to do is to finish up all orders we have on hand and not to take any more orders for the Brooklyn factory until you will be in a position to settle things once and for all. In answering this letter the Eastern Representative of B. S. W. U. wrote to the respondent : I believe that the best thing for you to do is to finish up all the orders and do not take any more orders until matters are straightened out with the Boston office . . . On June 21, 1937, the respondent again wrote to B. S. W. U.: I figured out exactly how long it would take me to finish out all the orders on hand and I took your advice not to take any more orders until everything will be straightened out. 9 The scope of this secession can be judged from the testimony herein of the Eastern Representative of B. S . W. U. that his union had approximately 100 collective labor con- tracts in the metropolitan district of New York in May 1937 , whereas in January 1938 it had only 3 or 4 such contracts. 10 Although the record does not indicate the exact number of production workers in the respondent 's employ on May 27, 1937 , it does establish that the respondent employed between 63 and 90 such employees during April and May 1937 . Hence the employees at- tending the Arcadia Hall meeting were a majority of the respondent's production workers. BECKERMAN SHOE CORPORATION 6 827 All the orders will be completed from August 2 to August I will lay off the people and wait for you to have a meeting with them and as soon as everything is settled, so that I shall be able to manufacture shoes peacefully, I will send out my salesmen to take orders and we will start operations again. Thereafter, pursuant to resolutions adopted at the Arcadia Hall meeting, the Committee filediwith, the Regional Director of the Board the petition in this proceeding along with approximately 80 other petitions, each. pertaining to a separate employer in the New York area with whom B. S. W. U. then had a collective labor contract. These petitions referred to the action taken at the Arcadia Hall meet- ing and requested the Board to certify the collective bargaining repre- sentative of the production employees in each of 'the factories involved. Seventy-nine of the employers concerned agreed to the holding of elections under the supervision of the Board to enable their respective employees to indicate whether they desired the United or B. S. W. U. to represent them for collective bargaining. The respondent, how- ever, did not enter into these arrangements for the consent elections.11 Although there is some conflict in the testimony it is apparent that the respondent learned of its employees' change in union affiliation about July 6, 1937, the date of the Regional Director's letter appris- ing it of the filing of the petition herein. As we later find, on July 10, 1937, a majority of the respondent's production employees re- afirlned the action taken at the Arcadia Hall meeting by signing pledge cards of the United. 12 Beckerman conferred with Carmine Pellechia, the United's shop chairman in the factory, and other em- ployees regarding this change in union affiliation on several occasions. At the hearing Beckerman categorically denied ever having referred to the Committee for Industrial Organization in his conversations with Pellechia. The latter testified, however, that Beckerman had expressed opposition to the C. I. O. and to the employees' joining the United in the course of these conversations. The following excerpts from the testimony of Pellechia concerning his conversation with Beckerman in the latter part of July 1937 indicate the general tenor of Beckerman's remarks : You know the C. I. O. organizers, aren't any good . . . they are nothing but Communists . . . Beckerman stated or says to me that I should go and tell the workers that they should make "The consent elections were held on July 27, 1937 , and the employees in 77 of the factories at which elections were held chose the United as their representative for collective bargaining . B. S. W. U. had agreed prior to the consent elections to abide by their results, and the United had agreed to administer without change the B. S. W. U. contracts in all factories where it might be elected as the employees ' bargaining representative. 12 On July 10, 1937, approximately 60 of the respondent's employees signed membership pledge cards of the United . As we later find these employees then constituted a majority of the respondent 's production workers. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD up their minds to belong to the Boot & Shoe and if we convince him or if we insist upon belonging to the C. I. 0., that he was not going to operate his factory no longer. He was going to make a warehouse out of it and with the Boot & Shoe he would give us all the work that we wanted. Narese, a fellow employee, was present at this conversation and con- firmed in substance Pellechia's version of Beckerman's remarks. Pellechia and Narese had another conversation with Beckerman dur- ing the morning of the shut-down, on August 6, 1937, hereinafter described. According to Pellechia, Beckerman in the course of that conversation told them : .. . I will tell you what to do ... if you can go down and convince the workers . . . to sign a petition-I will get my lawyer and we will have petitions made up-and you can get-go down and convince those workers to sign this petition that they will come up to work providing that they do not have no sit-down strike and providing they forget the C. I. 0.; that they should come up and work with the intentions of working under the Boot and Shoe and not having sit-down strike .. . Monday they can come in to work and today it will be like a holiday .. . Pellechia stated at the hearing that the subject of the B. S. W. U. contract arose during this conversation and he quoted Beckerman as having said, "I still got a contract with the Boot & Shoe and youse will have to live up to it ..." Pellechia testified that at another point in this. conversation Beckerman remarked, "I got plenty of money, and when hair grows in .the palm of my hand, that is the only time I will sign up with the C. I. 0." We find that in substance Beckerman made the foregoing state- ments. The witnesses for the United testified that on Friday, August 6, 1937, the respondent's superintendent refused to permit the employees to enter the plant. Although Beckerman denied at the hearing that the employees were refused admittance to the plant, we are unable to accept his denial. The United began to picket the respondent's factory on August 9, the Monday following the shut-down. Since then only foremen and Beckerman's relatives have been admitted into the factory. There is no evidence that the respondent resumed manu- facturing to any substantial extent after the shut-down. Pellechia testified that no shoes were manufactured in the respondent's plant after August 31, 1937. The evidence further shows that the re- spondent partially dismantled its machinery several weeks after the shut-down. Beckerman testified that the respondent returned about half of the plant machinery to the United Shoe Machinery Corpora- tion, from which it had been leased. BECKERMAN SHOE CORPORATION 829 Thus it appears that in the early part of June the respondent decided to suspend manufacturing operations upon the completion of its current orders. It further appears that B. S. W. U. then agreed that the situation confronting the respondent warranted that decision. We are satisfied, and we find, that the respondent reason- ably considered at this time that it was a business necessity for it to suspend operations temporarily and that the exigency of the situation required it to execute that decision. - We are also satisfied that, following its decision in June to suspend operations in August, the respondent conducted its operations in such a manner as to fill its pending orders by August 6 in accordance with that determination. The record shows that after June 12, 1937, except for 1 week, the amount of the respondent's pay roll fell below that of June 12. For the week ending June 12, 1937, the respondent's pay roll was $2,255, whereas for the week ending July 31, 1937, it wa's only $589. Furthermore, the testimony of Pellechia discloses that little work remained at the time of the lay-off on August 6, 1937. Pellechia testified : At that time [August 6, 1937] we did not have much work . . . we used to. have a few hours' work a day .. . We are satisfied, and we find, that the respondent closed its plant on August 6, 1937, because of the serious production difficulties that gave rise to its decision to suspend manufacturing operations. It is true that after the employees joined the United, the respondent attempted to dissuade them from retaining their United membership by expressions of hostility toward the C. I. 0. Nevertheless, we do not think that those remarks state the real cause of the shut-down. We are led to this conclusion because we think that the respondent regarded its decision to suspend operations, arrived at prior to the making of the unlawful statements, as a continuing business neces- sity, and because, there is no evidence that the conditions detrimental to production, which impelled the respondent to make that decision, had ameliorated prior to the lay-off. We therefore conclude that the respondent did not lock out its employees on August 6, 1937, to discourage membership in the United. Accordingly we shall dismiss the allegations of the complaint in respect to the alleged lock-out. We further find, however, that Beckerman's statements dispar- aging the United and expressing hostility to that organization were not justified bythe contract with B. S. W. U., assuming it to have been valid in all respects at that time, and constitute interference, restraint, and coercion of the respondent's employees in the exercise of their rights guaranteed by Section 7 of the Act. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The alleged refusal to bargain collectively 1. The appropriate unit At the hearing B. S. W. U. and the United stipulated that the respondent's production employees, exclusive of supervisory and clerical employees, working foremen, shipping and receiving clerks, and porters, constitute a unit appropriate for the purposes of collec- tive bargaining. The respondent did not question the propriety of such a unit and it conforms with the production unit that we have frequently found to be appropriate in similar cases. We find that the production employees of the respondent , exclu- sive of supervisory and clerical employees , working foremen, ship- ping and receiving clerks, and porters, constitute a unit appropriate for the purposes of collective bargaining and that said unit insures and will insure to the employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. 2. Representation by the United of a majority in the appropriate unit The record shows that on July 10, 1937, the respondent employed 78 production workers . Several witnesses for the United testified without contradiction that approximately 60 of these employees signed United membership pledge cards on July 10, 1937. The pledge cards were not produced at the hearing for the reason that they had been mislaid by the United during the removal of its offices. However, the United introduced certain documents in evidence which recited that the signers of the documents had been in the employ of the respondent prior to ' August 6, 1937, and had transferred their affiliation from B. S. W. U. to the United prior to that date. A witness for the United who circulated these documents for signature testified that he had requested only those who had signed the mislaid United pledge cards to sign these documents . The authenticity of the signatures appearing on the documents was established by the testimony of persons who witnessed their execution . A comparison of those signatures with the respondent's pay roll for the week ending August 7, 1937, discloses that all of the 57 signers were production employees of the respondent on that date. We find that on July 10, 1937, and thereafter the United was desig- nated by a majority of the respondent's employees in the unit above found appropriate as their representative for the purposes of collec- tive bargaining, and that pursuant to Section 9 (a) of the Act, the United was the exclusive representative of all the employees in that unit for the purposes of collective bargaining. BECIKERMAN SHOE CORPORATION 831 3. The alleged refusal to bargain In the Intermediate Report, the Trial Examiner recommended that the complaint be ' dismissed with respect to the alleged refusal to bargain collectively. The United did not file any exceptions to the Intermediate Report. We have reviewed the evidence and agree with the Trial Examiner's conclusion. Accordingly we find that the re- spondent has not refused to bargain collectively within the meaning of Section 8 (5) of the Act. TV. 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 sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. THE PETITION V. THE QUESTION CONCERNING REPRESENTATION In view of the finding in Section III. that the respondent had not resumed manufacturing at the time of the hearing and inasmuch as more than 2 years have intervened since the filing of the petition, we shall dismiss the petition without prejudice.13 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. The operations of the respondent, Beckerman Shoe Corporation, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States. 2. Committee for Employees Affiliated with the C. I. 0., United Shoe Workers of America, and Boot and Shoe Workers' Union are labor organizations, within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 13 Matter of Bamberger-Reinthal Company and International Ladies' Garment Workers Union, 9 N . L. It. B . 1057: Matter of American-France Line et al. (Seatrain Lines. Inc.) and International Seamen 's Union of America, 10 N. L. R. B. 1160 ; Matter of Godchaux Sugars, Inc. and Sugar Mill Workers' Union, Locals No . 21171 and No. 2188 affiliated with the American Federation of Labor, 12 N. L. R. B. 568. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. By closing, its factory- and laying off its employees. on August 6, 1937, the respondent has not engaged in unfair labor practices, within the meaning,of Section 8,(1) and (3) of the Act. 6. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (5) 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 re- spondent, Beckerman Shoe Corporation, Brooklyn, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self organization, to form, join, or assist labor organizations, to bargain collectively through representatives -of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) If the respondent reopens its plant at Brooklyn, New York, post notices to its employees in conspicuous places throughout its plant, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating that the respondent will cease and desist in the manner aforesaid. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act by locking out its em- ployees on August 6, 1937, and refusing to reinstate them be, and the same hereby is, dismissed ; AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent engaged in unfair labor practices within the meaning of Section 8 (1) and (5) of the Act by refusing to bargain collectively with the United Shoe Workers of America as the represen- tative of its employees be, and the same hereby is, dismissed; AND IT IS FURTHER ORDERED that the petition for certification of rep- resentatives filed by Committee for Employees Affiliated with the C. I. O. be, and the same Hereby is, dismissed without prejudice. BECKERMAN SHOE CORPORATION 833 MR. EDWIN S. SMITH dissenting : I am unable to concur in the conclusion of the majority that the respondent has not engaged in unfair labor practices in locking out its employees on August 6, 1937. The majority finds that the sole reason for the lay-off was a serious impairment of efficiency which greatly hampered production through- out the period of the recurrent stoppages of work. Whether or not such was the reason for the respondent's decision in June 1937 to sus- pend operations in August, it is plain that during July the respondent coerced its employees in an effort to compel them to withdraw from the United and resume membership in B. S. W. U. The majority finds that on several occasions in July Max Beckerman, the respondent's presi- dent, in conversations with employees not only disparaged the United but threatened to deprive the employees of work if they would not resume membership in B. S. W. U. The majority further finds that on the very day of the shut-down Beckerman urged Pellechia and Narese to induce their fellow employees to abandon the United and resume membership in B. S. W. U. These statements of Beckerman make it clear, in my opinion, that tho respondent's real reason for closing its plant on August 6 was its desire to coerce the employees to change their union affiliation from the United to B. S. W. U. This shut-down of the plant by the respondent for such a purpose was a plain violation of Section 8 (3) of the Act, unless the closed-shop pro- vision in the B. S. W. U. contract gave the respondent the privilege of laying off its employees for the reason that they were no longer members of the B. S. W. U.'4 Assuming that the closed-shop provision in the respondent's con- tract with B. S. W. U. was valid, within the proviso to Section 8 (3) of the Act, at the time of the making and extension of the contract, nevertheless in my opinion it would not constitute a defense to the lock- out of the respondent's employees on August 6_ It is undisputed that prior to the lay-off a majority of the employees in the unit covered by the contract had withdrawn from B. S. W. U. and had designated the United as their exclusive representative for the purposes of col- lective bargaining. I would.therefore hold that the contract no longer constituted a valid ground for discharging or locking out employees who failed to maintain membership in the B. S. W. U. The reasons for my view are stated in. my dissent in Matter of Ansley Radio Corp. and 14 Cf . Hamilton-Brown Shoe Co . v. National Labor Relations Board, 104 F. (2d) 49, enf'g as mod. Matter of Hamilton-Brown Shoe Company and Local No. 125 United Shoe Workers of America, Affiliated with the Committee for industrial organization, 9 N. L. R. B. 1073 ; also National Labor Relations Board v. National Motor Bearing Com- pany, 105 F. ( 2d) 652, enf'g as mod . Mutter of National Motor Bearing Company and International Union, United Automobile Workers of America, Local No. 76, 5 N. L. R. B. 409. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Electrical € Radio Workers of America 15 and need not be repeated here. Accordingly, I would hold that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, by laying off its production employees on August 6, 1937, for the purpose of coercing them to resume membership in B. S. W. U. 1518 N. L. R. B. 1028.