Brown Shoe Co., Inc.,

In the Matter of BROWN SHOE COMPANY, INC., AND ITS WHOLLY OWNED SUBSIDIARY, MoENCH TANNING COMPANY, INC. and NATIONAL LEATHER WORKERS ASSOCIATION LOCAL #44, AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Cases Nos. R-967 and C-957.-Decided April 18, 1940 Shoe Manufacturing Industry-Interference, Restraint, and Coercion: advo- cacy of unaffiliated union by Company's officer ; expressed opposition to "outside" labor organization ; expressed preference for "inside" unaffiliated labor organiza- tion ; announced refusal to recognize union as sole collective bargaining agent even if attained majority; questioning employees regarding union affiliation and activity ; attempt to bribe union leader ; discrediting union and union leaders ; threatening to close plant unless union organization and/or activity ceased ; engendering fear of loss of employment for union membership or activity ; intim- idating union members and leaders ; persuading employees to resign from union ; anti-union activity by supervisory employees during working hours and on com- pany property ; ascribing decreased operation and shut-down to union-Unit Appropriate for Collective Bargaining: all production and maintenance employ- ees, including janitors, watchmen, truckers, and sweepers, but excluding execu- tives, foremen, subforemen or strawbosses. supervisors, office and clerical workers, employees having the right to hire and discharge, and safety men ; desires of only lawful labor organization among employees as determinative of- Representatives: proof of choice: comparison pay roll with union dues cards; results of election not under Board auspices but fairly conducted-Collective Bargaining: employer's duty to enter into a signed agreement when understand- ing or oral agreement is reached ; negotiation in good faith: meeting with rep- resentatives but with no sincere consideration to union requests in an effort to reach an agreement ; employer's duty to negotiate in good faith in an effort to make an agreement ; failure or refusal to make counterproposals ; failure to con- sult union regarding wage cut; recognition of union as statutory representative: an essential prerequisite to collective bargaining ; employer ordered to bargain with union ; enter into a signed agreement, if understanding or oral agreement is reached-Company-Dominated' Union: encouragement of inside and discour- agement of outside labor organization ; discrimination in favor of unaffiliated labor organization ; domination of and interference with formation and admin- istration ; organization activity in plant ; soliciting members on company time and property ; responsibility of respondent for union activity of its supervisory employees ; influencing business and other interests to support inside labor organ- ization and oppose outside labor organization ; material and other support ; or- dered disestablished-Investigation of Representatives: petition for, dismissed in view of order to bargain ; company-dominated union's application for, denied- Complaint: dismissed as to parent corporation. Mr. Edward D. Flaherty and Mr. Peter J. Crotty, for the Board. Mr. Kevin Killeen, of Buffalo, N. Y., for the respondent and for Brown Shoe. 22 N. L R. B., No. 93. 1080 BROWN SHOE COMPANY, INC. 1081 Wilber ct Weyand, by Mr. Frederic Weyand, of Gowanda, N. Y., for the Tancraft Workers. Mr. Daniel B. Shortal and Mr. Irving Schwab, of New York City, and Boudin, Cohn & Glickstein, by Miss Vera Boudin, of New York City, for the Union. Mr. Arnold R. Cutler, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE 1 On April 7, 1938, National Leather Workers Association, Local #44, affiliated with the Committee for Industrial Organization 2 herein called the Union,' filed with the Regional Director for the Third Region (Buffalo, New York) a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Brown Shoe Company, Inc., St. Louis, Missouri, herein called Brown Shoe,' and its wholly owned subsidiary, Moench Tan- ning Company, Inc., Gowanda, New York, herein called the respond- ent, and requesting an investigation and certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On the same day the Union duly filed with the Regional Director charges, which it subsequently amended, alleging, as amended that Brown Shoe and the respondent had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (5) of the Act. 1 The Statement of the Case also includes our ruling in accordance with the notice of March 21 , 1940, served upon all the parties , mentioned below. 2 Now the Congress of Industrial Organizations. 2 As stated hereinafter, on or about July 23, 1937 , the employees of the respondent, Moench Tanning Company, Inc , employed at its plant in Gowanda , New Yoik, here in- volved, formed an unaffiliated union known as Gowanda Leather Workers Association. On October 20 , 1937, this union affiliated itself with National Leather Workers Association, a labor organization , as a local of that organization , and changed its name to "National Leather Workers Association , Local #44 , affiliated with the Committee for Industrial Or- ganization " Subsequent to the hearing herein , mentioned below, and as hereinafter found, the union affiliated itself with International Fur Workers Union of the United States and Canada, a labor organization , as a local of that organization , and changed its name to "Leather Workers Union of Gowanda, Local No 44 of the International Fur Workers Union of the United States and Canada , affiliated with the C. I O " Gowanda Leather Workers Association , National Leather workers Association , Local #44 , affiliated with the Committee for Industrial Organization , and Leather Workers Union of Gowanda, Local No 44 of the International Fur Workers Union of the United States and Canada, affiliated with the C I 0 , are successive names of the same union This union under its successive names is herein called the Union } Brown Shoe is a party respondent in these proceedings For purposes of convenience, only Moench Tanning Company , Inc., is referred to as the respondent. 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 25, 1938, 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 Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice; and, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations further ordered that the representation proceeding and the proceeding in respect to the alleged unfair labor practices be consolidated and that one record of the hearing be made. Upon the charges and amended charges the Board, by the Regional Director, issued its complaint, dated June 2, 1938, against Brown Shoe and the respondent, alleging that they, and each of them, had . engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act. A copy of the complaint, accom- panied by notice of hearing, was duly served upon Brown Shoe, upon the respondent, and upon the Union, and a copy of the notice of hearing was duly served upon Tancraft Workers of Gowanda, herein called the Tancraft Workers, the labor. organization in respect of whom charges were filed. Thereafter, Tancraft Workers lodged with the Regional Director a motion to intervene in the consolidated cases, which motion was granted by the Regional Director. The complaint alleged in substance, so far as here material (1) that the operations of Brown Shoe and the respondent, including their labor policies are wholly directed and controlled by Brown Shoe, and that both companies form a unified and integrated system wholly owned and controlled by Brown Shoe; (2) that Brown Shoe and the respondent, jointly and severally, on or about January 19, 1938, and thereafter, fostered, encouraged, sponsored, dominated, and inter- fered with the formation, enlistment of members, and administra- tion of the labor organization herein called the Tancraft Workers, and contributed financial and other support to it; (3) that Brown Shoe and the respondent, jointly and severally, by various specified acts, influenced, induced, and caused certain citizens, civic bodies, and- public officials of Gowanda, to foster, encourage, sponsor, dominate, and interfere with the formation, enlistment of members, and ad ministration of the Tancraft Workers and to contribute financial and other support to it and to coerce and intimidate employees into be- coming members of said labor organization ; (4) that on or about July 30, 1937, and thereafter, Brown Shoe and the respondent, jointly and severally, refused to bargain collectively 'with the Union as the exclusive representative of production and maintenance employees at the Gowanda plant, exclusive of executives, foremen, office and clerical workers, and employees having the right to hire and fire, BROWN SHOE COMPANY, INC. 1083 although the Union then represented a majority of the said em- ployees for collective bargaining and said employees constituted an appropriate bargaining unit; (5) that Brown Shoe and the respond- ent, jointly and severally, by statements, speeches, and other conduct induced and urged certain citizens, civic bodies, and public officials 'f Gowanda to coerce, intimidate, interfere with, and restrain em- ployees at the resopndent's Gowanda plant from joining, forming, and assisting the Union and from engaging in concerted activities for mutual aid and protection; (6) Brown Shoe and the respondent, jointly and severally, since July 25, 1937, by various specified and other acts, have attempted to discourage and have discouraged membership in the Union and concerted activities of the Gowanda plant employees and their free choice of representatives for the purpose of collective bargaining and other mutual aid and protection ; and (7) by the foregoing acts Brown Shoe and the respondent have interfered with, restrained, and coerced the Gowanda plant employees in the exercise of rights guaranteed in Section 7 of the Act. Thereafter, the respondent and Brown Shoe filed separate answers to the complaint denying that they, respectively, had engaged in any unfair labor practices. The respondent, in its answer, admitted that the bargaining unit alleged in the complaint was appropriate for collective bargaining and that it refused to bargain collectively with the Union as the exclusive bargaining representative of the employees in such unit, but denied that the Union on and after July 25, 1937, was the exclusive representative of the employees in such unit. Brown Shoe in its answer alleged affirmatively that it was informed and believed that the respondent did bargain collectively with the Union, but refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit. Tancraft Workers also filed an answer to the complaint, in which it denied the material allegations therein affecting it. Pursuant to the notice and amended notices duly served upon the parties, a hearing was held from July 5 to 20, 1938, before Waldo C. Holden, the Trial Examiner duly designated by the Board. Although the hearing convened at Buffalo, New York, upon motion of the Union and without objection by the other parties, it was transferred by the Trial Examiner to Gowanda, New York. The Board, Brown Shoe, the respondent, the Union, and the Tancraft Workers were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all the parties. At the end of the Board's case Brown Shoe and the respondent moved to dismiss the complaint on the ground that the evidence failed to prove that Brown Shoe and the respondent had engaged in any unfair labor practices. This motion was denied 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Trial Examiner. During the course of the hearing the Trial Examiner made various rulings on other motions and on objections to the admission of evidence. The Board has reviewed these rulings and, except as to the ruling on the motion of Brown Shoe to dis- miss the complaint as to it, finds that no prejudicial errors were committed. These rulings are hereby affirmed. As to the motion of Brown Shoe to dismiss the complaint as to it, this motion is hereby granted, and we shall issue our order accordingly. On October 7, 1938; the Trial Examiner filed his Intermediate Report in which he found that Brown Shoe and the respondent had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act, but had not engaged in unfair labor prac- tices within the meaning of, Section 8 (2) of the Act. He recom- mended that Brown Shoe and the respondent cease and desist from their unfair labor practices and take certain specified affirmative action to remedy the situation brought about by the unfair labor practices which he found. On October 17, 1938, Brown Shoe, the respondent, the Tancraft Workers, and the Union filed exceptions to the Intermediate Report and to the record. The Union in its exceptions assigned as error, among other things, the finding of the Trial Examiner that the respondent had not engaged in unfair labor practices within the meaning of Section 8 (2) of the Act. Pursuant to notice a hearing for the purpose of oral argument on the exceptions and record was held before the Board on April 21, 1939, in Washington, D. C. The respondent, Brown Shoe, the Tancraft Workers, and the Union were represented by counsel and participated in the argument. Briefs have been submitted by Brown Shoe, the respondent, the Tancraft Workers, and the Union. At the hearing the Board granted per- mission to the Union to submit a brief and to Brown Shoe, the respondent, and Tancraft Workers to submit briefs in reply thereto. Thereafter the Board extended the time for submitting such briefs. On May 31, 1939, the Union submitted its brief. On June 19, 1939, the Tancraft Workers filed a motion to expunge the brief of the Union from the record. The Board denied the motion and granted the Tancraft Workers until July 25, 1939, to submit a reply brief. In its brief and at the oral argument, the Union by its counsel represented to the Board that pursuant to formal action theretofore taken, the Union did on December 20, 1938, assume affiliation with and as a local of International Fur Workers Union of the United States and Canada; that the Union then changed its name to "Leather Workers Union of Gowanda, Local No. 44 of the Interna- tional Fur Workers Union of the United States and Canada, affili- ated with the C. I. 0."; and that the Union thereby merely changed BROWN SHOE COMPANY, INC. 1085 its affiliation but not its entity. On March 21, 1940, the Board duly served notice upon all the parties herein that unless sufficient cause to the contrary was shown, on March 29, 1940, or as soon thereafter as was convenient, it would substitute the name "Leather Workers Union of Gowanda, Local No. 44 of the International Fur Workers Union of the United States and Canada, affiliated with the C. I. 0." for the name of the Union wherever it might appear herein. Neither Brown Shoe nor the respondent have objected to the proposed sub- stitution of name. On March 28, 1940, the Tancraft Workers filed its objections thereto, on the ground that the record failed to show the affiliation of the Union with International Fur Workers Union of the United States and Canada. The Tancraft Workers requested that the proposed order be not made; also that the proceedings herein he dismissed, for the reason that the Union is not at the present time in existence. There is no showing in support of this allegation respecting the existence of the Union. In view of our findings be- low regarding the respondent's unfair labor practices in respect to the Tancraft Workers, and the order below in that regard made, di- rected to the respondent, as well as the order below in the represen- tation case here involved, any objection of the Tancraft Workers to the proposed order, especially unsupported, as here, by any sufficient showing by affidavit or otherwise why the proposed order should not be entered, is entitled to no weight.-' The objections of the Tancraft Workers are overruled, and its request is denied. No sufficient cause appearing why the proposed order should not issue, we find, as rep- resented by the Union, that the Union affiliated itself with Interna- tional Fur Workers Union of the United States and Canada, and changed its name on December 20, 1938, as above stated. Accord- ingly, we hereby order that the name "Leather Workers Union of Gowanda, Local No. 44 of the International Fur Workers Union of the United States and Canada, affiliated with the C. I. 0." be, and it hereby is,, substituted for the name "National Leather Workers As- sociation, Local #44, affiliated with the Committee for Industrial Organization" wherever the Union is referred to herein, provided, however, that no physical change in the record heretofore had herein been made to conform with such substitution, and, further, that the caption of the above-entitled cases remain uuchang^d. The Board has considered the exceptions of the parties to the Inter- mediate Report and the record and, in so far as they are inconsistent with the findings, conclusions of law, arid order below, finds them to be without merit. 6 See National Licorice Company v. N L. R. B, 309 U S 350, N L R B v. Pennsyl- vania Greyhound Lines, 303 U S 261 See also, Republic Steel Corporatipa v N. L R. B., 107 F. (2d) 472 (C. C A. 3), cert. denied , 309 U S 684. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the consolidated cases, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Moench Tanning Company, Inc., a New York Corporation, is a wholly owned subsidiary of Brown Shoe.' It is engaged at Gowanda, New York, in the processing of hides of the bovine species to be used in the manufacture of shoes. It there operates a plant con- sisting of two tanneries, one for sole leather and one for upper leather. During the fiscal year 1937 the aggregate value of raw materials, including hides, tanning supplies, and coal, used by the respondent in the course of its operations was approximately $2,951,518, of which 75 per cent in value were shipped to the Gowanda plant from points outside the State of New York. In the same period it processed at the plant leather valued at $4,337,487, of which more than 90 per cent was shipped from the plant to points outside the State of New York. It supplies approximately one-half of the sole leather and upper leather used by Brown Shoe. The respondent admits that in the course of its operations.it causes large quantities of raw materials and manufactured products to be transported in interstate commerce. H. THE ORGANIZATIONS INVOLVED Leather Workers Union of Gowanda, Local No. 44 of the Inter- national Fur Workers Union of the United States and Canada, affiliated with the C. I. 0., is a local of International Fur Workers Union of the United States and Canada, a labor organization, affili- ated with the Congress of Industrial Organizations. It admits to membership all production and maintenance employees employed at the respondent's Gowanda plant, exclusive of ' executives, foremen, office and clerical employees, and employees having the right to hire and discharge. It formerly was known as National Leather Work- ers Association, Local #44, affiliated with the Committee for Indus- trial Organization ,7 and as Gowanda Leather Workers Association., Tancraft Workers of Gowanda is an unaffiliated labor organiza- tion. It admits to membership all employees of the Gowanda plant, exclusive of supervisory employees. 6 Brown Shoe Company, Inc, is a New York corporation , with its principal office and place of business in St. Louis , Missouri. It is engaged in the manufacture, production, sale, and distribution of medium -priced men ' s, women's, and children's shoes It is the third largest shoe manufacturing company in the United States ' See footnote 3, supra. 8 See footnote 3, supra BROWN SHOE COMPANY, INC. 1087 III. THE UNFAIR 'LABOR PRACTICES A. Interference, restraint, and coercion The respondent's plant comprises some 26 buildings" and normally employs about 500 workers. Gowanda, New York, where as above mentioned the plant is located, is a village with a population of about 3,000 people. The plant is the chief business in the com- munity and its environs and is the main source of income for the inhabitants thereof. One of the three village trustees constituting the village board, Maulbetsch, is a foreman at the respondent's plant, and a second operates a shoe store in the town dealing exclusively in Brown Shoe footwear. Prior to July 1937 no union or other form of organization for col- lective employee action existed at the respondent's plant. About the middle of that month a group of employees, employed in the rolling room of the sole-leather tannery, presented their foreman with a col- lective request for an increase in the wages of the rolling-room work- ers. About 25 employees worked in this room. Their action was spontaneous. The superintendent of the tannery, Keister, to whom the petition was transmitted by the foreman, forwarded it to the re- spondent's general manager and vice president, Powell, at the office of Brown Shoe in St. Louis, Missouri. Powell had charge of the business and labor policies of the respondent, and in the course of his duties visited the Gowanda plant about every 2 or 3 weeks. A few days later the rolling-room employees through a committee asked Keister not to delay the respondent's reply pending Powell's next visit to Gowanda. Keister communicated information of this further request to Powell. On July 23, 1937, the rolling-room employees, upon learning that Powell had come to Gowanda that day, stopped work and refused to continue working until they were afforded an opportunity to confer with him about their request for a wage increase. Powell then pro- ceeded to the rolling room and spoke with the employees. He stated that the respondent refused to grant a general increase, that the employees' wages were higher than the average compensation paid for such work in the industry. However, he did state that employees paid less than the average wage would have their wages raised to the general level. Thereupon, on the same day and during working hours, the roll- ing-room employees set about forming a union. They paraded through the two tanneries calling upon all the plant employees to 9 Of the 26 buildings , 5 are used exclusively as an upper leather tannery , 7 are used ex- clusively as a sole -leather tannery, and 14 are used jointly for the upper - and sole leather tanneries. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD join with them in a meeting for -organization purposes. They at- tracted a large number of the workers who then gathered in the rolling room. A meeting was held at which it was decided to form a union. In the course of the meeting the employees invited Powell to be present, and upon his attendance informed him of the proposal to organize and inquired whether the respondent would meet with a union. Powell replied that the employees by their action had anticipated "in a general way a plan that [he had] been discussing for a long time," that the respondent would treat with their union, but cautioned them to maintain it as an independent local organi- zation, to keep their money at home, and not to waste it in payments to "outside unions." By "outside unions" Powell had reference to existing national labor organizations. He added, "You know what the big unions have done; how much trouble they have caused down East." The employees then and there proceeded to organize the Union. Temporary officers were elected. That evening, Bates, the new union president, was invited by the respondent's president and tannery superintendent, Moench, to meet with him. Two foremen were present. Moench congratulated Bates upon his election, and stated that he was glad that Bates had been elected "instead of some radical," that it was "a good thing to have some of the more con- servative men at the head of a union," and that he and Bates would "get along fine together" because "he figured that [Bates] knew the company's side of the story as well as the men's side." Several days later, at a hall removed from the respondent's property, another meeting of the Union was held at which the temporary officers were elected to permanent office and other officers were elected. The employee members who were present adopted as the name of the Union, Gowanda Leather Workers Association. Soon thereafter the Union requested a conference with the respond- ent for the purpose of collective bargaining. On July 30 Powell, Moench, and Keister met with Bates and the other union officers. Powell opened the meeting by advising the union men to "keep [their] union local" and to "keep [their] money in Gowanda." Re- ferring to various labor organizations he stated that those which remain unaffiliated with any of the national unions were "very suc- cessful" whereas those which had become affiliated were not. He re- ferred to a tannery at Elkland, Pennsylvania, where the local union had affiliated itself with the Committee for Industrial Organization, as an instance of unsuccessful unionization, saying that considerable trouble had resulted therefrom and that "the C. I. O. men [were] all out . . . and [were] still pick and shoveling." By this Powell meant that the union men were without employment. Powell stated BROWN SHOE COMPANY, INC. 1089 that he would secure for the union officers a copy of the constitution and contract of one of the "successful" unaffiliated unions. The union officers then asked that the respondent recognize the Union as the sole bargaining agent of all the respondent's employees. Powell replied that the respondent would not do this. He said that it would be "against the Government law" for the respondent "to bargain collectively with any one group." The union officers maintained that such recognition could be granted to the Union in view of the fact that it then represented as collective bargaining representative all but six or seven of the respondent's plant employees. When Powell answered that the respondent had no proof of this member- ship, Bates offered to submit to him the names of the union members. Powell refused this offer, saying that it did not matter to the respond- ent how many members the Union had, and further, that it would be "against the law" for him to inspect the names of the union member- ship. The union officers also requested that the respondent check off to the Union the dues of its members. Powell replied that the respondent would not do this, as it too would be "against the law." About August 12, 1937, the union representatives conferred with Powell. Bates repeated the Union's request for recognition of itself as the sole collective bargaining representative of the plant employees. Powell again refused this request. The representatives "went through the same procedure with . . . [Powell as] at the . . . pre- vious meeting," and met with the same futility. They asked for a minimum wage throughout the plant of 50 cents an hour. Powell said that that matter "would have to wait until the [Walsh-Healey] investigation was finished." 10 They requested departmental sen- iority and payment of wages on a weekly instead of biweekly' basis, matters which the plant employees,had desired for some time. Pow- ell refused unqualifiedly to grant departmental seniority. With respect to a weekly payment of wages Powell stated that the respond- ent would consider the matter, but observed that "it would cost the company considerable more money." The foregoing facts show that with the inception of organization activities at the Gowanda plant the respondent through its officers and agents sought to circumscribe and confine the desires of its employees for a union to an organization unaffiliated with any of the national labor organizations. As set forth above, Moench and Powell cau- tioned the employees and the Union against such affiliation. The facts also show that the respondent in its treatment of the union officers and its statements to them at conferences sought to dominate the Union and its affairs, and render it subservient to the respondent. We do 10 The Walsh-Healey Act, to which Powell had reference, was enacted by Congress on June 30, 1936, and the investigation was one conducted thereunder. 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not consider the above statements of the respondent's officials to em- ployees and to the union officers as mere expressions of opinion or of ordinary import. Considered in the light of the respondent's superior economic position, these statements carried the unmistakable hostility and threat of the employer against independent determination and free action of the employees in matters of self-organization.h1 We find that by making such statements and expressing such hostility and threat, the respondent interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Section T. We also think it plain from what has been set forth above in con- nection with the July 30 meeting that the respondent then proposed, and the union officers so understood, never to grant recognition to the Union as the exclusive collective bargaining representative of the plant employees, irrespective of whether the Union was the designated collective bargaining representative of a majority of these employees in a unit appropriate for collective bargaining. While Powell ex- pressed doubt at the meeting concerning the Union's majority repre- sentation,12 and while no evidence on this subject was introduced at the hearing, nevertheless the respondent, by its determination that under no circumstances would it accept the Union as the statutory represen- tative, violated the Act. It has been repeatedly held that the statutory representative is entitled to recognition as the exclusive collective bar- "Matter of Knoxville Publishing Company and American Newspaper Guild, The Knox- ville Newspaper Guild, 12 N L R B 1209 ; Matter of Harry Schu art- Yarn Co , Inc and Textile lVoi kern Organizing Committee, 12 N L R B 1139, Matter of Nebel Knitting Company, Inc and American Federation of Hosiery lVorlers, 6 N L R B 284, enf'd as mod, N. L R B v Nebel Knitting Company, Inc, 103 F (2d) 594 (C C A 4) , Matter of American Manufacturing Company, et al and Textile Workers' Organizing Committee. C I 0, 5 N L. R B 443, enf'd as mod , N L R B v American Manufacturing Company and Nu-Art Employees, Inc., 106 F. (2d) 61 (C C A 2). aff'd as mod , 309 U S 629, Matter of Arthur L Colton et al and Amalgamated Clothing Workers of America, 6 N L R B 355 , enf'd, N L. R B v Arthur L Cotten and Abe J Colman, Co-Partners doing business as Kiddie Kover Manufacturing Company, 105 F (2d) 179, 181 (C. C A 6) ; Matter of Virginia Ferry Corporation and Masters, Hates and Pilots of America, No 9, 8 N L R. B 730, enf'd as mod, Virginia Fetiy Corporation v N L R B, 101 F (2d) 103, 104-6 (C. C A 4) , Matter of The A. S Abell Company, a corporation and International Printing and Pressmen's Union, Baltimore Blanch, Baltimore Web Pressmen's Union, No 3, 5 N L R B 644, enf'd as mod, N L R B v A S Abell Company, 97 F (2d) 951, 955-6 (C. C. A. 4) ; Matter of Walter Stover, doing business under the tra'le name and style of Stover Bedding Company and Upholsterers Allied Crafts Local Union No 501, 15 N L R B 635; cf. Virginian Railway Co. v. System Fedeiation No 40, etc., 84 F (2d) 641, 643-4 (C C A 4), 300 U S 515, 544 ii We are not entirely satisfied, in view of Powell's refusal of the tendered proof of ma- jority representation by the Union that his raising of this issue was in good faith See Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of the Dis- trict Council OJfice Equipment IVoi kers, 2 N L R B 626. enf'd, N. L R B v Remington Rand, Inc, 94 F. (2d) 862 (C C A. 2), ceit denied 304 U S 576; cf Matter of The Louisville Refining Company and International Association, Oil Field, Gas Well and Re- finery Workers of America, 4 N. L R B 844, enf'd as mod, N L R B v The Louisville Refining Company, 102 F. (2d) 678 (C C. A 6) However, as stated below, we need not decide this issue, for in any event the respondent's action constituted a violation of Sec- tion 8 (1) of the Act. BROWN SHOE COMPANY, INC. 1091 gaining agency by the employer.13 For the respondent to take the position which it did, that a union of its employees never would attain such recognition and, consequently, any attempt by the employees to enjoy the benefits of exclusive representation under the Act would be unsuccessful, necessarily interfered with, restrained, and coerced the employees in the exercise of their rights of self-organization- and to collective bargaining guaranteed by Section 7. It is immaterial whether the Union then represented a majority of the employees.14 Nor do we believe that the respondent sincerely believed that a, grant by it of exclusive recognition to the Union would contravene the law, if that fact be material. We are convinced that Powell's statements to that effect were a mere subterfuge, of a piece with his explanation that the respondent could grant no check-off because such a procedure violated the law.ls We find that by the foregoing acts the respondent interfered with, restrained, and coerced its employees in the exercise of rights guar- anteed by Section 7 of the Act. B. The refusals to bargain collectively and attendant interference, restraint, and coercion 1. The appropriate unit The complaint alleges that all the respondent's production and maintenance employees at its Gowanda plant, exclusive of executives, foremen, office and clerical workers, and employees having the right to hire and discharge, constitute a unit appropriate for the purposes of collective bargaining. The answer of the respondent admits this allegation of the complaint. At the hearing the Union contended that the unit, as alleged, in- cluded janitors, watchmen, truckers, and sweepers, but excluded safety men, supervisors, and subforemen or strawbosses. The re- spondent objects to the exclusion of the subforemen or strawbosses from the alleged appropriate unit. The Union is the only lawful 13 See Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N L R B 626 , enf'd, N L R B v Remington Rand, Inc., 94 F (2d) 862 (C C A 2), cert denied 304 U S 576, Matter of The Griswold Manufacturing Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No 1197, 6 N L. It B 298, enf'd, N L R B v The Griswold Manufacturing Company, 106 P. (2d) 713 (C C. A 3) , Matter of Bales-Coleman Lumber Company and Puget Sound District Council of Lumber and Sawmill Workers, 4 N L R. B 679, enf'd, N. L. R. B. v. Bales-Coleman Lumber Company, 98 F. (2d) 18 (C. C A 9) 14 Matter of Republic Steel Corporation and Steel Workers Organising Committee, 9 N L R. B. 219 , 379, enf'd, Republic Steel Corporation v. N L R B, 107 F (2d) 472 (C. C A. 3), cert. denied , 309 U S 684 15 An agreement for a check-of made by an employer with a labor organization repre- senting a free choice of a majority of his employees in an appropriate bargaining unit is valid under the Act See Matter of Williams Coal Company and United Mine Workers of America, District No 21, 11 N. L. R B 579 , footnotes 61, 62, and 63 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization here involved 16 and it desires that these employees be excluded. Under these circumstances, the desires of such labor organization are determinative and we shall, therefore, exclude sub- foremen or strawbosses from the unit. This comports with our general rule excluding supervisory employees from the appropriate bargaining unit. We find that all the respondent's production and maintenance employees at its Gowanda plant, including janitors, watchmen, truck- ers, and sweepers, but excluding executives, foremen, subforemen or strawbosses, supervisors, office and clerical workers, employees having the right to hire and discharge, and safety men, constituted and constitute a unit appropriate for the purposes of collective bargain- ing and that such unit insured and insures to the employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit At the hearing there was introduced into evidence the respondent's pay roll of October 9, 1937, containing the names of 557 persons then employed by the respondent at the Gowanda plant. Five hundred and thirty-one of these employees were then within the unit which we have found to be appropriate. There also was introduced into evi- dence 529 cards purporting to record the payment of membership dues by these employees to the Union.17 One Anderson, who was treasurer of the Union from its organization in July 1937 until the first week in October 1937, testified regarding these cards. Her testimony establishes that the individual members' names recorded separately on each of the cards are the names of employees who became members of the Union between July and the first week in October 1937 and paid ,their dues to the Union as indicated on these cards. We have compared the names of employees on the dues cards with the names of the 531 employees within the appropriate unit listed on the October 9, 1937, pay roll. The names of employees appearing on 509 of the cards also appear on the pay roll. Of these 509 persons it is shown by the cards that 500 paid dues to the Union for the month of August 1937. It is evident, therefore, and we find, that 500 employees within the appropriate bargaining unit had become and were members of the Union at or before the end of August 1937. 16 See Section III C, infra, with respect to the Tancraft Workers. In view of our find- ings there, the contentions of that organization are not entitled to much weight. See Matter of Eagle Manufacturing Company and Steel Workers Organizing Committee, 6 N. L. R. B 492, 505. 17 This number excludes one card which was a duplicate. BROWN SHOE COMPANY, INC. 1093 On October 20, 1937, the Union was chartered as a local by National Leather Workers Association, a national labor organization affiliated with the Committee for Industrial Organization. This assumption of affiliation with National Leather Workers Association followed a secret election held on October 9 and 10, 1937, among the employees to determine their desires for such affiliation. Of the 409 ballots cast in the election, all by employees who were members of the Union, 294 were in favor of such affiliation, 114 were against affilia- tion, and one ballot was not counted.18 Thus, 294 of the 531 em- ployees in the appropriate unit voted that they desired the Union to become affiliated with National Leather Workers Association. Although the record does not disclose whether all the members of the Union continued as members of the Union after it assumed affilia- tion with National Leather Workers Association, we are satisfied from the results of the election, among other things, and we find, that a majority of the respondent's employees in the appropriate unit continued as members of the Union after its assumption of national affiliation and change of name on October 20, 1937. We find that on September 1, 1937, and at all times thereafter, the Union was the duly designated representative of a majority of the employees in the appropriate unit and that, pursuant to Section 9 (a) of the Act, it was at all such times the exclusive representative of all the employees in such unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other conditions of employment.la "The election was held at the American Legion Hall on Saturday and Sunday, October 9 and 10, 1037 To avoid any possible question iegaiding its legality, the Union took every precaution. It printed ballots and used the official village ballot box, which , locked and sealed, remained under the custody of the Gowanda police during the entire election During the balloting watchers were present while two employees acted as checkers and Bates was in charge of the ballots Each employee who was a union member and who desired to vote was required to have his name checked for identification purposes by one of the checkers before lie could obtain a ballot As the voter dropped his Note into the ballot box, his name was again checked by the other checker . At the end of the balloting the votes were counted by three Gowanda residents , one of whom was Herdeg, president of one of the local banks , and another was a legionnaire employed at a Gowanda hospital. 'D As stated below in April 1938 and thereafter, a substantial number of employees be- came members of the Tancraft Workers However , it is plain , and we find, from the facts set forth below and the record , that neither membership in that organization nor any desig- nation of it as bargaining representative resulted from a free choice upon the part of the employees , uninfluenced by the employer 's interference, restraint, and coercion within the meaning of the Act. Moreover, the respondent 's unfair labor practices in connection with the formation of the Tancraft Workers, found below, cannot accomplish or be considered to establish a change in choice of bargaining representative . Cf. N. L. R B v Arthur L Colten and Abe J Colman, Co-Partners doinO business as Kiddie Kover Manufacturing Company, 105 F . ( 2d) 179 ( C C A. 6 ) ; N. L. R. B v. Highland Park Manufacturing Company, 110 F. ( 2d) 632 (C C A. 4). 283033-41-vol. 22- 70 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The respondent's refusals to bargain collectively with the Union and attendant interference, restraint, and coercion On September 11, 1937, Powell together with other of the respond- ent's representatives met with Bates, the president of the Union, and other union officers. Powell submitted to the Union his revised draft of a so-called "working agreement," previously submitted to the re- spondent by the Union. The draft dealt with certain working con- ditions of the plant employees. After some discussion the union officers agreed in behalf of the Union to the terms thereof, and pro- posed that the respondent and the Union execute the document as an agreement. Powell replied that although the respondent intended to comply with the terms of the document, it "didn't want to sign it" and "didn't need to sign it." The respondent never receded from this position. We find that the respondent, by refusing on September 11, 1937, to embody these understandings and oral agree- ments which it had reached with the Union in a signed contract, refused to bargain collectively with the Union as the statutory rep- resentative of its employees and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act.20 Moreover, the respondent's attitude regarding a signed collective agreement has circumstantial bearing on the issue whether it subsequently negotiated in good faith with the Union.21 At the September 11 conference the respondent through Powell also agreed orally to pay the plant employees time and one-third for work in excess of 40 hours per week. On the pay day following September 11 the pack pullers did not receive the stipulated addi- tional pay for overtime work. The Union complained about this grievance to Superintendent Keister who replied that he "could not 20 Matter of Art Metal Construction Company and International Association of Machin- tsts, Local 1559, affiliated with District #65 of the I A. M (A F of L ), 12 N L R B 1307, enf'd as mod, Art Metal Construction Company v. N L R B, - F (2d) - (C C A 2) , Matter of Highland Park Manufacturing Company and Textile Workers Organizing Committee, 12 N L R B 1238, enf'd, N L R B v Highland Park Manufacturing Com- pany, 110 F. (2d) 632 (C C. A 4) ; Matter of H J Heinz Company and Canning and Pwkie Workers, Local Union No. 325 et al., 10 N L R B. 963, enCd, H. J. Heinz Company v N L R B, 110 F. (2d) 843 (C C A 6) , Matter of Sunshine Mining Company and Inter- national Union of Mine, Mill and Smelter Workers, 7 N L R B 1252, enf'd as mod, N. L R B V Sunshine Mining Company, a corporation, 110 F. (2d) 780 (C C A 9) See also Matter of The Griswold Manufacturing Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No 1197, 6 N. L R. B. 298, enf'd, N L R B v. The Griswold Manufacturing Company, 106 F. (2d) 713 (C. C. A 3) ; Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N L R B. 461, enf'd as niud , Globe Cotton Mills v. N. L. R. B, 103 F. (2d) 91, 94 (C C. A 5). 21 Sep footnote 20, supra. BROWN SHOE COMPANY, INC. 1095 recollect anything" about time and a third for overtime. Moench when questioned made a similar reply. Although Powell thereafter admitted the existence of the agreement, he opposed any additional overtime payment to the pack pullers on the ground that these em- ployees "were laying down on the job because of the union." The Union thereupon offered to prove to the respondent that this was not so, that the pack pullers had worked more than 40 hours a week prior to the formation of the Union and were not prolonging unneces- sarily their working hours because of the Union or for any other reason. Powell refused to investigate or consider the matter further or to negotiate for a settlement of this grievance. No counterpro- posal was made. We find that the respondent by refusing to engage in discussion with the Union in order to reach a basis for agreement concerning the issue presented, refused to bargain collectively with the statutory representative of its employees, and violated the rights of the employees under Section 7.22 Previously, on August 12, 1937, the Union requested the respond- ent to initiate a minimum wage of 50 cents per hour for all plant employees. At a conference with Powell the union officers were informed that the respondent would do nothing about this request until a study into minimum wages then being conducted by the De- partment of Labor under the Walsh-Healey Act was completed. In September the Union through Bates again sought action by the re- spondent on this request. Moench to whom the request was addressed stated that he was "getting sick of this damn union," but undertook to communicate the request to Powell at St. Louis. Several days later, Powell advised the Union that the respondent's position had not changed. Meanwhile, discouraged by the respondent's action, the union members began to discuss the advisability of the Union assuming affiliation with a national labor organization associated with either the American Federation of Labor, herein called the A. F. of L., or the Committee for Industrial Organization, herein called the C. I. O. Representatives of both the A. F. of L. and the C. I. O. were invited to address the Union. On the day following a meeting at which a representative of the C. I. O. spoke, Moench summoned Bates to his office and there subjected Bates to question- ing by Powell regarding the meeting. We find that the respondent by summoning Bates and subjecting him to such an inquisition con- cerning union affairs and business, interfered with, restrained, and coerced its employees in their right of self-organization. The Act 12 See cases cited in footnote 20, supra Also, Matter of Biles-Coleman Lumber Company and Puget Sound District Council of Lumber and Sawmill Workers, 4 N I. R B 679 , enf'd, V L. B B. v Biles-Coleman Lumber Company, 98 F (2d) 18 (C C A 9) 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guarantees to employees freedom from employer interrogation and prying concerning union matters of concern to the employees.23 A few days later Bates was visited by his immediate supervisor, a subforeman named Mayer.24 Mayer advised Bates to "quit this union business," and promised that if Bates did so he, Bates, would be assured "a steady job" with-the respondent. At the hearing Mayer denied making such statement or promise on the occasion in question. He testified that his visit to Bates' home had been merely in response to Bates' own invitation to examine the chickens in Bates' chicken yard. On cross-examination Mayer was unable to recall the date when the asserted invitation had been extended to him, and could not say whether the visit was on the day succeeding the invitation or 2 months later. He testified that he visited Bates only 5 minutes, that while Bates desired to speak with him about unions, he, Mayer, steadfastly refused to discuss the matter, and that all he did was view the chickens. It is shown that, some 3 months prior to the occasion in question, Mayer had bought a chicken of Bates. We are satisfied from the entire record that Mayer's explanation of his visit to Bates' home and of what occurred there warrants no credence. We find that Mayer went to Bates' home because of the consideration then being given by the Union to the assumption of national affiliation, that Mayer's purpose in making the visit was to induce the president of the Union to abandon his organization in the expectancy that such an occurrence would bring about a quick collapse of the move- ment for national affiliation. We also are satisfied, and find, that Mayer's conduct in this respect was instigated by and constituted action of the respondent. By thus attempting to induce the union leader to withdraw from the Union and by offering him a bribe to do so, the respondent interfered with, restrained, and coerced such leader and its employees in the exercise of rights guaranteed in Section 7.25 On September 29, 1937, the Union at one of its membership meet- ings voted to become associated with a national labor organization affiliated with the C. I. O. As heretofore mentioned, a vote on the same subject was thereafter taken of the union members on October 9 23 Cf Matter of Harry Schwartz Yarn Co, Inc and Textile Workers Organizing Commit- tee, 12 N. L R B 1139; Matter of Hacrino Trelles , Manuel Trelles, Ubaldo Trelles and Max L Block, Co-partners, doing business as M. Trelles & Company and Mrs. Xavia Giar- dina, 12 N L R. B 981. 2; The name of this person also appears in the record as Anton Myers and Joseph Anton Mayer 25 See Matter of Carlisle Lumber Company and Lumber & Sawmill Workers' Union, Local 5511, Onalaska, Washington, 2 N. L. R B. 248, 261, enf 'd as mod , N L R B. v. Carlisle Lumber Co., 94 F. (2d ) 138 (C. C A. 9 ), cert denied 304 U. S 575 ; Matter of Patriarca Store Fixtures, Inc, and Morris Kominsky, 12 N L. R. B. 93. BROWN SHOE COMPANY, INC. 1097 and 10 with a similar result, and on October 20 the Union was chartered as a local by the National Leather Workers Association and changed its name. On September 30, the day following the first vote, the respondent laid off all employees engaged in soaking operations at the plant and advised them that they would be notified in the future when to return to work. Although the plant employees at that time generally believed that the respondent's action was undertaken as a disguised threat to close the plant if the Union persisted in its plan for affiliation with a national labor organization, we are not satisfied that such was the case.26 The respondent in fact did not shut down the plant, but merely initiated a schedule of reduced op- erations which continued during the following 4 months. The avail- able work was divided in this period among all the employees on a share-the-work basis. However, the record does show that the re- spondent, through at least three of its supervisory employees, utilized the circumstance of decreased production, and the consequent un- certainty of adequate employment, for evincing 'further to the em- ployees its hostility to the Union, and particularly the assumption of national affiliation. Following September 30 Mayer, the subfore- man, told various employee members of the Union that they were foolish for having voted in favor of affiliation with the C. I. 0., that they were "in wrong" with the respondent, that Bates was "all wet," and that the respondent would never sign a collective labor contract with a C. I. O. affiliate. He disparagingly addressed a member of the Union's grievance committee as "Bolsheviki" and threatened a female employee with the discharge of her husband by another em- ployer because the husband had escorted her to union meetings. He, told employees not to pay dues to the Union and to cease attending union meetings, and warned them that if they attended meetings they would be discharged. He told employees that the tannery would re- sume full operations only when the employees rid themselves of the union men and that if they "monkeyed around" with the Union or "that damn Bates" the plant would close down completely. At the hearing, Mayer, when examined regarding these acts and conduct, replied that so far as he knew, he spoke with nobody about the Union; also that he had "not talked union at all." We have heretofore in- dicated our disbelief in the testimony of Mayer. His activities above mentioned were the subject of clear and convincing testimony by several employees. It is apparent that Mayer's conduct was entirely consistent with the attitude of the respondent toward the Union. We are satisfied that Mayer engaged in the above acts and made the above statements, and we so find. We entertain no doubt that in so doing he acted at the instance and in behalf of the respondent. At the hearing the respondent contended that the reduction in operations was necessi- tated by adverse business conditions. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woelfel, another subforeman, engaged in similar anti-union ac- tivities. He told one employee that the president of Brown Shoe had said that if the employees "ever had a union . . . they would shut the plant down." After production was decreased he stated to a group of employees who were discussing the matter, "Now, there is your C. I. O. for you ... You weren't satisfied with what you had before, you wanted a union." In response to the question of an employee as to the reason for the decrease in production, Woelfel said, "That's the union for you." While in his testimony Woelfel denied making certain of these statements, he did not deny others. We find that Woelfel did manifest to the employees the, respondent's hostility to the Union and that he did attribute the reduction in operations to the desire of the respondent to be rid of a union affiliated with a national labor organization. In so doing, he acted for the respondent.27 Maulbetsch, another supervisory employee, similarly expressed the respondent's anti-union attitude and engaged in intimidatory conduct. On October 2, 1937, Maulbetsch addressed one of the union committee- men as he was about to attend a conference with the respondent respecting union matters, asking whether he, the committeeman, was "going to tie up with this gang," meaning the Union. Maulbetsch also stated, "You should be fired ... I should have fired you long ago." The Board and the courts repeatedly have held acts and statements of the employer, such as those of the respondent through Mayer, Woelfel, and Maulbetsch, above set forth, violative of the Act.28 Carrying the weight of the employer's superior economic position, here emphasized by the circumstance of curtailed operations, they necessarily effect an intimidatory restraint upon employees in their n In its brief the respondent contends that it is not responsible for Woelfel's anti-union conduct, for the reason that he was "not a foreman, and never was a foreman, nor em- ployed in any supervisory capacity " The record does not support this contention Woel- fel worked in the embossing department, supplying the machines with leather and ascer- taining that the leather went through at the right temperature and pressure However, it also was his duty to supervise the work of other employees at the embossing machines These employees considered Woelfel their "boss" or "foreman," and on one occasion I'owvell himself told one of them that he was to receive his work orders from Woelfel Woelfel was consulted by the management in connection with the settlement of wage disputes aris- ing in his department At the hearing Moench testified that, although he was "not posi- tive," he was of the opinion that Woelfel was a subfoieman Upon the entire record we find that Woelfel was a supervisory employee, and that his above-described activities were those of the respondent See Matter of The Serrick Corporation and International Union, United Automobile Woi hers of America, Local No 459,'8 N L R B 621 , enf'd , Interna- tional Association of Machinists, Tool and Die Makers Lodge No 35, Affiliated with the International Association of Machinists and Production Lodge No 1200, Affiliated with the Interinational Association of Machinists v N L. R B , 110 F. ( 2d) 29 (C. A, D C ). 28 Matter of The Serrick Corporation and International Union, United Automobile Work- ers of America, Local No. 459, 8 N L. R B. 621, enf'd, International Association of Ma- chinists, Tool and Die Makers Lodge No 35, Affiliated with the International Association of Machinists and Production Lodge No 1200 , Affiliated with the International Association of Machinists v. N L R. B., 110 F (2d) 29 (C A, D. C.) ; Virginian Railway Co . v System Federation No 40 . etc, 84 F. (2d) 641, 643-4 (C C. A . 4), 300 U . S 515, 544; Matter of Theurer Wagon Works, Inc and International Union,, United Automobile Workeis of America, Locals 259 and 374, 18 N. L. R. B. 837. BROWN SHOE COMPANY, INC. 1099 organizational pursuits. We find that the respondent, by expressing its opposition to national labor organizations '29 by discrediting the Union and its officers'30 by threatening the employees both prior to and subsequent to the reduction in operations, that if they joined the Union the respondent would close the plant,31 by exhorting the em- ployees that unless they terminated their union activities and ceased attending union meetings, they would be discharged'32 by urging the employees not to pay dues to the Union,33 and by other of the aforesaid acts, interfered with, restrained, and coerced 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 purposes of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. On October 19, 1937, the' Union and the respondent, through their representatives again met. The Union officially advised the re- spondent of the results of the voting on October 9 and 10, and of the Union's acceptance of national affiliation. The Union then renewed the discussion previously had about compensating employees at in- 29 Matter of Maryland Distillery, Inc, et at and Distillery Workers Union 20270 et at., 3 N L. R B 176 ; Matter of Theurer Wagon Work s, Inc and International Union, United Automobile Workers of America, Locals 259 and 374, 18 N L R B 837 3° Matter of Jones d Laughlin Steel Corporationn, and Amalgamated Association of Iron, Steel d Tin Workers of North Awe, ica, 1 N L R B 503, set aside , N. L. R B v Jones it Laughlin Steel Corp , 83 F. (2d) 998 (C C A 5) rev and enf'd, 301 U. S 1 , Matter of Oregon Worsted Company and United Textile Workers of America, 3 N L R B 36, enf'd, N L R B v Oregon Worsted Co, 96 F (2d) 193 (C C A 9) , Matter of Trenton Phila- delphia Coach Company and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 6 N L R B 112 "Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N L R B 626, enf'd, N. L R B v Rem- ington Rand, Inc, 94 F. ( 2d) 862 (C. C. A 2), cert denied 304 U. S 576; Matter of Indianapolis Glove Company and Amalgamated Clothing Workers of America, Local No 145, 5 N L R. B 231 ; Matter of Titan Metal Manufacturing Company and Federal Labor Union No. 19981, 5 N L R B. 577, enf'd, N L R B v Titan Metal Manufacturing Com- pany, et at., 106 F. (2d) 254 (C C. A 3), cert denied 60 S Ct 260 ; Matter of Stackpole Carbon Company and United Electrical it Radio Workers of America, 6 N L R B 171, enf'd as mod ., N L. R B v. Stackpole Carbon Co, 105 F (2d) 167 (C C A 3), cert denied, 60 S Ct 142 32 Matter of Knoxville Publishing Company and American Newspaper Guild, The Knox- ville Newspaper Guild, 12 N L R B. 1209 ; Matter of Hariy Schwartz Yarn Co , Inc and Textile Workers Organizing Committee, 12 N L R B 1139 ; Matter of Nebel Knitting Company, Inc and American Federation of Hosiery Workers, 6 N. L R B 284 , enf'd, N L. R B. v. Nebel Knitting Company, Inc, 103 F (2d) 594 (C. C A 4) , Matter of Arthur L. Cotten and A J Colman, co-partners, doing business as Kiddie Kover Manufac- turing Company and Amalgamated Clothing Workers of America, 6 N L R B 355, enf'd, N L R B v. Kiddie Kover Mfg Co et al, 105 F. (2d) 179 (C C A. 6) ; Matter of Ameri- can Manufacturing Company, et al and Textile Workers Organizing Committee, C 1 0, 5 N. L. R. B. 443, enf'd, N. L. R B. v. American Manufacturing Co. et at, 106 F (2d) 61 (C. C. A. 2). Cf. Matter of Crucible Steel Company of America and Strip Steel and Wire Workers Union, 2 N L R. B 298; Matter of Greensboro Lumber Co and Lumber and Sawmill Workers Local Union No. 2688, 1 N. L R B. 629; Matter of Gating Rope Works, Inc. and Textile Workers Organizing Committee, 4 N. L. R B. 1100. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD creased rates for overtime work. Although, as above mentioned, the respondent on September 11 had agreed orally to pay additional compensation for overtime work, it adhered to its subsequent refusal to make such payments. Instead of attempting to ascertain whether differences on this matter could be composed and an agreement with the Union reached, the respondent through its representatives repeated its previous assertion that the employees "were laying down on their jobs." When the Union again offered to prove that this alleged fact was not true, the respondent rejected the offer. We think it plain that at this meeting the respondent refused to consider sin- cerely the request of the Union. In so doing, it refused to bargain collectively. Further conferences between the Union and the respondent in No- vember were inconclusive. On January 10, 1938, the respondent called a meeting with the union representatives and informed them that because of business conditions the Gowanda plant would be shut down completely. It further stated that upon the reopening of the plant, the existing share-the-work plan would be terminated and available work would be assigned to a limited number of employees on a "seniority by operation" basis. The Union protested adoption of the new working procedure and requested that before the respond- ent abandon its existing plan the parties "work out a satisfactory adjustment" of the matter. The Union referred in this connection to the terms of the "working agreement," above described.34 The respondent took the position that any such negotiation "was out, and from now on [the new working plan] ... was going to be the policy of the Company and none of the union's business." The respondent refused to consider any alternative plans which the Union might propose, averring that "the union had absolutely nothing to do with it." We find that the respondent by refusing to confer with the Union regarding the objections which it had raised to the proposed change in working conditions, and by refusing to explore the possi- bility of reaching an agreement with the Union in that respect, re- fused to bargain collectively with the Union. The respondent did not discharge its duty under Section (5) of the Act upon mere noti- fication to the Union of the proposed change in working conditions. It was obliged to negotiate in good faith with the Union in respect to that change once the Union protested its adoption and sought to bargain collectively with respect thereto. The respondent proceeded to close the plant and by January 20, 1938, all operations were suspended. Soon thereafter, one of the plant 81 The "working agreement" provided : The management agrees to shale the work in each department among the men now working in that department , until such time as it becomes impracticable to either the management or the union ; then both parties agree to meet to work out a satis- factory adjustment. BROWN SHOE COMPANY, INC. 1101 subforemen, Fisher, in response to inquiry by one of the employees as to the reason for the shut-down stated that it was "on account of the union." Woelfel, the subforeman hertofore mentioned, advised another employee that the plant had closed because "Mr. Bush and Mr. Powell won't stand for the C. I. O. Union." Mayer, the super- visory employee above mentioned, continued his anti-union activities already described. Indeed, Mayer's activities became so notorious that the respondent after complaints by the Union stopped them sometime in March 1938. We find that the respondent through the activities of these supervisory employees interfered with, restrained, and coerced the plant employees in the exercise of the rights guaran- teed in Section 7. While it is true that the respondent, when it began to shut down the plant, posted a notice stating that the opera- tions would be suspended for business reasons and had so notified the Union, such notice hardly could be expected to negate or destroy the intimidatory effect of contrary statements subsequently made by the supervisory staff. At the hearing the respondent contended that it cautioned Mayer on two or three occasions after November 1937 not to discuss the Union, and in fact stopped him from doing so in March 1938. We have no doubt that had the respondent actually desired to bring about a cessation of the anti-union activities of Mayer as well as to prevent those of other supervisory employees prior to March, it could have and would have done so.35 On February 2, 1938, the Union sought and was granted a further conference by the respondent. The Union requested a modification in the work plan which the respondent proposed to put into effect when plant operations were resumed. The respondent refused to make any modifications. It stated, through Powell, that the new plan constituted "a policy laid down by the Company." When one of the union representatives pointed out that that was not collective bargaining, Powell replied that he considered it collective bargaining. On March 7, 1938, the plant reopened, and a number of the em- ployees were recalled to work at full time on a seniority by operation basis. On March 22 the Union again sought a modification in the new system, but was unsuccessful in obtaining any negotiation. At this meeting the union representatives were informed of a. 10 per cent reduction in pay throughout the plant, which shortly went into effect. The respondent's unilateral determination of a wage reduc- s Matter of The Serrick Corporation and International Union, United Automobile Work- ers of America, Local No 459, 8 N L R B . 621, erif' d, International Association of Machin- ists, Toot and Die Makers Lodge No 35, Affiliated with the International Association of Machinists and Production Lodge No 1200, Affiliated with the International Association of Machinists v. N. L R B., 110 F. (2d) 29 (C. A, D. C.) ; Matter of Swift & Company, a corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, and United Packinghouse Workers Local Industrial Union No. 300, 7 N. L. R B 269 , enf'd as mod ., Swift & Company v. N. L R. B, 106 F. ( 2d) 87 (C C A 10). 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion without negotiating that matter with the Union, although the Union had been seeking to bargain in respect to an increase in wages, constituted a refusal to bargain collectively." On April 4, at the Union's request, a meeting between the union representatives and the respondent's officials again was held. Pre- viously the Union had submitted to the respondent as a basis for col- lective bargaining a proposed draft contract, providing, among other things, for recognition of the Union as the sole collective bargaining agent of all the respondent's employees, except supervisors, depart- mental seniority, a 40-hour week, time and a half for overtime work, a shop steward, and an orderly procedure for the settlement and arbi- tration of employee grievances and disputes. Except for the pro- vision for a 40-hour week, which covered the working week then existing at the plant, the respondent through its officials rejected un- qualifiedly each of the provisions of the proposed contract. It sub- mitted no counterproposals. Throughout the period during which meetings were held, as above set forth, the respondent, although repeatedly requested by the Union, refused to grant recognition to the Union as the exclusive collective bargaining representative of employees within the appropriate bar- gaining unit. On October 2, 1937, January 10, 1938, February 2, 1938, March 22, 1938, and April 4, 1938, among other times, requests by the Union for recognition as the statutory representative were re- fused. At the January 10, 1938, meeting, Powell told the Union that the respondent "didn't care who the union represented." At the February 2 meeting he stated that recognition would be granted to the Union but only as representative of union members. In its answer to the complaint the respondent admits that it refused to bargain collectively with the Union as the exclusive bargaining rep- resentative, but denies that the Union was such a representative. We already have found against the respondent on this issue of fact.37 The respondent in its brief also contends that it never was asked by the Union to grant exclusive recognition until April 1938. As already indicated, the record does not support this contention. At the April 4, 1938, meeting Powell expressed doubt whether the Union then represented a majority of the employees within the appropriate bargaining unit. However, when the union representatives offered to establish the fact that the Union did represent a majority and asked Powell what proof should be submitted to the respondent on that subject, Powell replied, "Well, that is a question for the Federal so See Matter of John J Ouqhton, Charles T Oughton, Bertram E Oughton, and Robert B. Oughton, individuals and co-partners trading as The Windsor Manufacturing Company and Tectilc Workers Organizing Committee (C. 1 0 ), 20 N L R B. 301, and cases there cited. 87 See Section III, B, 2, supra. BROWN SHOE COMPANY, INC. 1103 government to decide, and when the Federal government decides it, we will abide by it." 38 We are satisfied that Powell's expression of doubt as to the status of the Union as statutory representative was not in good faith, that in fact the respondent, through Powell, again was rejecting the principle of collective bargaining.39 We find that by refusing to grant the Union recognition as the exclusive collective bargaining representative of all the respondent's employees within the appropriate bargaining unit, the respondent refused to bargain collectively.40 The foregoing facts plainly show that the respondent at no time following the formation of the Union accorded the Union that full recognition and acceptance of status which as a labor organization and as the sole bargaining agency of the plant employees the Union was entitled to receive. In various ways the respondent sought to render the Union a subservient, wholly local organization to be treated in such manner as the respondent in its sole discretion deter- mined. To that end it engaged in the various acts of interference, restraint, and coercion above set forth. The refusals to bargain were part of the respondent's entire course of conduct and a reflection of its attitude toward the Union. In contravention of the Act it with- held exclusive recognition from the Union as sole bargaining repre- sentative. It refused to consider sincerely requests of the Union and to explore with the Union the possibility of reaching an agreement upon such requests. The responses of the respondent to the Union at the various meetings were ijot a fulfillment of its duty under the Act. Section 8 (5) imposes upon the employer a duty to negotiate in good faith with the employees' representatives.41 Mere meeting with the employees' representatives does not fulfill the obligation under the Act if there is no sincere desire to reach an agreement. As 38 See Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge No 1719, 7 N L. R B 714, where the Board held that an employer is under a duty to cooperate with a union to a reasonable extent when the union is seeking to prove its majority representation See also Matter of Stehle and Company, Inc and Textile TPoihers Union, 11 N L R B 1397, 1427 30 Matter of Reuvington Rand, Inc and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L R B 626, enf'd, N. L. R B. v Reming- ton Rand, lee, 94 F. (2d) 862 (C C A 2), cert denied 304 U S 576 40 Matter of The Griswold Manufacturing Company and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge No 1197, 6 N L R B 298, enf'd, N L. R B. v. The Griswold Manufacturing Company, 105 F (2d) 713 (C. C. A 3) 41 Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N. L. R. B. 461, enf'd as mod, Globe Cotton Mills v N. L R B , 103 F. ( 2d) 91 ( C C A 5 ) : Matter of Highland Park Manufacturing Co and Textile Workers Organizing Committee, 12 N L. R. B 1238 , enf'd , N L R B . v. Highland Park Mfg Co, 110 F (2d) 632 (C. C. A 4) ; Matter of Biles-Colemam. Lumber Company and Puget Sound District Council of Lumber and Sawmill Workers, 4 N L R. B . 679, enf'd , N L. R B v Bites-Coleman Lumber Co, 98 F (2d) 18 (C C. A 9) 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the United States Circuit Court of Appeals for the Fifth Circuit 'stated : 42 . -there is a duty . . . to enter into discussion with an open and fair lnind, and a sincere purpose to find a basis of agreement touching wages and hours and conditions of labor, and if found to embody it in a contract as specific as possible, which shall stand as a mutual guaranty of conduct, and as a guide for the adjustment of grievances. And the United States Circuit Court of Appeals for the Fourth Cir- cuit recently said : 43 The requirement to bargain collectively is not satisfied by mere discussion of grievances with employees' representatives. It con- templates the making of agreements between employer and em- ployee which will serve as a working basis for the carrying on of the relationship. The Act, it is true, does not require that the parties agree ; but it does require that they negotiate in good faith with the view of reaching an agreement if possible; and mere discussion with the representatives of employees, with a fixed resolve on the part of the employer not to enter into any agreement with them, even as to matters as to which there is no disagreement, does not satisfy its provisions. We find that the respondent refused to bargain collectively with the Union as the representative of its employees in respect to rates of pay, wages, hours of employment, and other conditions of employ- ment. We also find that the respondent, by refusing to bargain col- lectively with the Union, and by other acts above set forth, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. Domination of and interference with the formation and admninli s- tration of, and support to, the Tancraft "Workers As heretofore set forth, virtually from the first manifestation among the plant employees of an interest in unionization the respond- ent opposed affiliation of its employees with any of the national labor organizations. Even after the Union, for the purpose of combatting more effectively the respondent's hostility to its organization and of obtaining collective bargaining, procured a charter from National Leather Workers Association, the respondent, as above stated, per- sisted in its opposition to national affiliation. 42 Globe Cotton Mills v. N. L. R B, 103 F (2d) 91 (C. C A 5), enf'g as mod , Mutter of Globe Cotton Mills and Textile Workers Organazinq Committee, 6 N L R B 461. 93 N. L R. B v Highland Park Mfg Co., 110 F. (2d) 632 (C C. A 4) , enf'g, Matter of Highland Park Manufacturing Co. and Textile Workers Organizing Committee, 12 N L. R. B. 1238. BROWN SHOE COMPANY, INC. 1105 We have already found that following the plant shut-down on January 10, 1938, as previously following the reduction in plant op- erations, the respondent, through certain of its supervisors, utilized the attendant economic uncertainty among the employees to empha- size its hostility to national affiliation. These supervisors attributed the shut-down to the Union's acceptance of affiliation with National Leather Workers Association. In consequence, considerable anxiety was felt by the employees about the plant remaining closed so long as the Union continued in existence. In January 1938 rumors spread through Gowanda that the plant would not reopen until the respond- ent was rid of the Union. One of the town newspapers in reporting the closing of the plant, stated, in part: Mr. Powell announced that culminating a period of about four months during which the Gowanda tannery had been work- ing short time, each employe getting two or three days time a week, the factory would be shut down completely . . . The short time employment at the Moench Tannery followed closely upon the organization of the local employees into a local union and at the time the factory went on 3 days schedule, the local organization went into the C. I. O. Since there was at the time, an upset in the hide market and the shoe industry, and many tanneries throughout the country were undergoing similar short- time employment conditions, the local troubles were considered not unrelated to the national ones. Now, however, with the hide market more settled and financial authorities reporting shoe factories and tanneries being revived, there is a strong sus- picion about town that the local manifestation is an effort on the part of the Brown Co. to clear the local factory of the ring- leaders in the labor movement. In February 1938 three plant employees, Clifford Mayers, Tietz, and Anderson, took steps looking ultimately toward the formation of a new union among the plant employees which would be unaffili- ated with any national labor organization. It is clear that these employees then and for some time theretofore had become convinced that the existence at the plant of a labor organization affiliated with the National Leather Workers Association had caused the curtail- ment and subsequent cessation of plant operations. One of them admitted at the hearing that in proceeding to organize the new union he had been mindful of Powell's speech in July 1937, hereto- fore mentioned, in which Powell had cautioned the employees to refrain from joining apy national labor organization. These em- ployees were satisfied that once a majority of all the employees joined an "inside" union, the respondent would quickly reopen the plant. Accordingly, with the assistance of a local attorney, the town attorney 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Gowanda'44 they drafted the following petition, and caused copies thereof to be circulated for signatures of the employees either at their homes or in the town streets : We, the undersigned, employees of the Brown Shoe Company, realizing the disadvantage to ourselves and families, caused by the present shut-down of the Tannery, hereby agree to cooperate with the Brown Shoe Company in all ways possible to promote harmony and good will between the employees and the employer, and we further wish to act as an Independent Body and not a part of the present union in order to promote said harmony and good will. We are signing the Petition with the hope that with assurance of our sincerity in promoting good feeling be- tween the employer and employees, that the Brown Shoe Com- pany may be encouraged to re-open its Gowanda Plant, as we feel that the present union has been detrimental to the welfare of ourselves, our families and our community. By the first week in March a substantial number of the employees had signed the petitions. About the same time, on March 7, 1938, the plant reopened.4, The employees who signed, the petitions themselves understood, or were told by the individuals circulating the petitions, that when a sufficient number of signatures was ob- tained the plant would reopen. We entertain no doubt, and we find, that the respondent not only was well aware of the circulation of the petitions but of the belief created among the plant employees that the Union was the cause of the shut-down. In the campaign for signatures to the petition at least one local businessman joined forces with the campaigners. He, one of the town bankers, told an employee that "as long as he [the employee] stayed with Bates and his gang, we were all washed up." He told officers of the Union to "leave the C. I. 0. alone and keep this union . . . local," or the respondent might keep the plant shut down or move it from the town. About April 10, 1938, the proponents of a new union caused notices to be sent to all signers of the petition informing them of an organization meeting to be held on April 14 in a local hall. On the evening of April 14 some 300 to 450 employees gathered at this meeting, including Bates and other officials of the Union. The town attorney presided. He stated-that the purpose of the meeting was to form an unaffiliated labor organization. He also said, among other things, "You men all know that this tannery . . . don't like the C. I. 0., and they will not run with the C. I. 0. . . . This 44 The town attorney acted as attorney for the new organization when it was formed 45 Only about 350 of the 500 employees were recalled to work. The respondent followed its seniority by operation plan in reinstating them. BROWN SHOE COMPANY, INC. 1107 company likes a small union, and if, you leave the C. I. O.... and form a small union you will get steady work but if you stay in the big union you won't get very much work." During the course of this statement the employees in various ways indicated their dis- approval with what was said. Upon completing his speech, the attorney called upon all employees interested in the proposed new union to follow him from the hall. Only 27 of those present did so. Thereupon a representative of the Union inquired of the employees assembled whether they "wanted the C. I. 0." Substantially all of the employees answered affirmatively.46 Two days later, on April 16, the proponents of the new union, some 27 in number, met at the town attorney's office to continue their organization work. Included in the group were the follow- ing individuals, Stekelasa, Hopkins, and Woelfel, all supervisory employees. Also present was one Brown, a millwright, in charge of from 1 to 12 employees during plant operations. At the hear- ing the respondent contended that Brown was not a supervisory employee. However, Brown admitted in his testimony that in connection with his work he engaged in some supervision, and the record shows that he had charge of a group of men and was known to the employees as a maintenance boss or foreman of the main- tenance gang. We are satisfied that Brown was a supervisory em- ployee, and that his position with the respondent, as well as the positions of the other three supervisory employees above named, so allied them with, the management as to make them agents of the respondent in respect to their acts involving the new union.47 At this meeting the Tancraft Workers was formed. Brown was elected temporary president of the union, and another employee its secretary-treasurer. All present constituted themselves an organiz- ing committee to obtain members for the organization. While the meeting was being held, some 400 town inhabitants had assembled nearby in the village square to observe a prize award being made by a local business organization. Among those present were a number of the plant employees. Some of these employees observed the proponents of the new union on their way to the above- mentioned meeting and engaged in booing them. This incident was immediately taken by the above-mentioned town banker, the town 46 This was shown by a raising of hands and in standing up Only some 10 of the per- sons present at the meeting were not plant employees 44 See Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No 459, 8 N L R B 621, enf'd , International Association of Machinists , Tool and Die Makers Lodge No. 35, Affiliated with the International Association of Machinists and Production Lodge No. 1200, Affiliated with the International Association of Machinists v N L. R B, 110 F. ( 2d) 29 (C. A , D C.) ; Matter of McKaig-Hatch, Inc and Amalgamated Association of Iron, Steel , and Tin Workers of North America, Local 'V0 1139, 10 N. L R. B. 33. 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attorney, and various other leading town citizens, as a justification for an attack upon the Union. On the following Monday the local businessmen's association passed a resolution condemning the con- duct of the employees and recommending that the village board pro- vide police aid against its recurrence . That night the village board met and authorized the chief of police to deputize at least 50 addi- tional special policemen and, if necessary, to summon the sheriff and State troopers .48 Local club organizations passed resolutions approv- ing this action "for the preservation of law and order." Local news- paper comment was as follows : During the past week, the chief topic of discussion in and around Gowanda, has been the disturbances that have taken place in connection with the attempt of members of the Gowanda Leather Workers Union, a C. I. O. affiliate, to prevent the or- ganization of another union among the employees of Brown Shoe Company tannery. In spite of the preventive efforts, a new union has been formed with a substantial number of members. also : The [Saturday] 'demonstration . . . did not prevent those persons who were forming the union from continuing in the step they were taking, and it had far from a desirable effect on the people of Gowanda who in the past have adopted a course of watchful waiting in hopes that the present labor difficulties would iron themselves out and that our people could resume the former manner of living, enjoying gainful employment, rather than living on unemployment insurance or welfare. The town banker immediately caused reprints of these newspaper comments to be made and mailed to all the employees. In the midst of these expressions of local antagonism to the Union, the Tancraft Workers began its membership drive. The town attor- ney's office was established as headquarters for signing members into the Tancraft Workers. Brown, the president of the organization, distributed membership petitions and enrolled members throughout the plant during working hours. Employees were told by those en- rolling members, or otherwise understood, that if a sufficient number joined the remainder of the plant employees would be recalled to work. On April 28, 1938, the Tancraft Workers organizing commit- tee informed the respondent that it claimed to represent more than 300 of the respondent's employees and demanded recognition either 48 One of the trustees on the Boaid was a foreman at the respondent's plant. He voted in favor of this action. We have heretofore adverted to the trustees who comprised the village board. BROWN SHOE COMPANY, INC. 1109 as the sole collective bargaining agent for all the plant employees or as the bargaining agent for its members. On April 29 the re- spondent replied that it was willing to negotiate with the Tancraft Workers for "its members." The first regular union meeting of the Tancraft Workers was not held until May 10, 1938. Brown was elected president, the brother of one of the foremen as first vice president, and two others were elected second vice president and secretary-treasurer, respectively. We think it is plain that the respondent has dominated and in- terfered with the formation and administration of the Tancraft Workers, and contributed support to it, as alleged in the complaint.49 Clearly this organization is not, nor has it ever been, the employees' genuine choice of collective bargaining representative, free from em- ployer influence, intimidation, and interference.50 By its continual opposition to any union of national affiliation the respondent provided the essential impetus for and caused the creation of the Tancraft Workers, thereby supporting, dominating, and interfering with the formation of that organization. By and through its supervisors causing a reasonable belief among the employees that the shut-down resulted from the Union's affiliation with National Leather Workers Association, and by lending its own confirmation to this belief through reopening the plant at a time when a substantial number of the employees had signed the above-mentioned petition, an act we are satisfied the respondent deliberately so timed, the respondent further assisted, sponsored, and supported the formation of the Tan- craft Workers. Through four of its supervisors participating in the organization of the Tancraft Workers, and through one of these sup- ervisors assuming the presidency of the union, the respondent domi- nated and interfered with the formation and administration of the Tancraft Workers. The use of the respondent's time and property to enroll members in the Tancraft Workers also constituted, under the circumstances, employer assistance and support to that organiza- 49 See Hamilton-Brown Shoe Company v N L. R B, 104 F ( 2d) 49 (C. C. A. 8 ), enf'g as mod Matter of Hamilton-Brown Shoe Company, a corporation and Local No 125 United Shoe Workers of America , affiliated with the Committee for Industrial organization, 9 N L R. B 1073 ; N L R. B v. Brown Paper Mill Company, Inc , 108 F. ( 2d) 867 (C. C. A 5), enf'g Matter of Brown Paper Mill Company , The, Monroe, Louisiana and Interna- tional Brotherhood of Electrical Workers , etc, 12 N L R . B 60; N L R B v J Greene- baum Tanning Company, 110 F. ( 2d) 984 (C C A. 7 ), enf'g as mod Matter of J Greenebaum Tanning Company and National Leather Workers Association , Local No 43, affiliated with the C. 1. O , 11 N. L. R. B. 300 See also N L. R B. v. The Falk Corporation, 60 S Ct. 307, 102 F. ( 2d) 383 (C. C. A. 7), enf'g Matter of The Falk Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North Amet tea, Lodge 1528, 6 N L. R B. 654 ; N L R. B. v. Pacific Greyhound Lines, Inc, 303 U S 272, 91 F. (2d) 458 ( C C. A 9), enf'g Matter of Pacific Greyhound Lines, Inc and Brotherhood of Locomotive Firemen and Engtnemen, 2 N L R . B. 431. 5° N L. R. B. v. Pacific Greyhound Lines, Inc., 303 U S 272. 91 F (2d) 458 (C. C. A. 9). 283033-41-col 22--71 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion. Finally, by its above-mentioned acts and policy hostile to the Union and favorable to the Tancraft Workers, especially its identifi- cation of the shut-down and unemployment with its opposition to any labor organization of national affiliation, the respondent engaged in conduct necessarily calculated to, and, we are satisfied, intended, to, influence the businessmen, town authorities, and inhabitants of Gowanda, largely dependent upon the respondent for their economic life, to become proponents of the formation of and membership in the Tancraft Workers and to oppose the Union.51 In creating this public attitude by such conduct, and in taking no effective steps to dissipate such attitude, the consequences whereof are indicated by what has been set forth above, the respondent lent material support to the formation of and to the Tancraft Workers.52 The Trial Examiner in his Intermediate Report found and con- cluded that the respondent "did not form and sponsor" the Tancraft Workers, and was not "dominating and interfering with the adminis- tration of a labor organization," or "contributing financial and other support to said labor organization." 53 The Trial Examiner erred in these findings and conclusions, and the exceptions filed thereto must be and hereby are sustained. We find that the respondent dominated and interfered with the formation and administration of, and contributed support to, the Tancraft Workers, and that it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 5 The respondent introduced in evidence a newspaper item attributing the shut-down to economic and not labor causes, and also introduced testimony showing that it inspired this publication However, the item on its face , does not show this We do not consider it an effective disavowal or step to combat the situation which had arisen in -Gowanda. 52 Cf Hamilton-Brown Shoe Company v N. L R. B., 104 F. ( 2d) 49 (C. C A 8 ). With respect to the creation by an employer of a local body of opinion hostile to a particular union, as part of an anti-union policy, see Republic Steel Corporation, et at. v,N. L R. B., et at. 107 F ( 2d) 472 (C C A 3). cert denied , 309 U S . 084, enf'g Matter of Republic Steel Corporation and Steel 117orl ers Organizvnq Committee , 9 N L R B 219 The Trial Examiner also found , "The record clearly establishes the fact that the mo- tivating force behind the spontaneous growth of Tancraft was not the desire of the employees for an agency for collective bargaining with the respondents but,-as in the case of the back-to-work petitions , the fear of unemployment because of the C. I. 0.1"' BROWN SHOE COMPANY, INC. 1111 THE REMEDY It is essential to an effectuation of the purposes and policy of the Act that the respondent be ordered to cease and desist from the unfair labor practices in which we have found it to have engaged, and, in aid of such order and as a means of removing and avoiding the consequences of such practices, that the respondent be, ordered to take certain, action more particularly described below. We have found that the respondent repeatedly has refused and still refuses to bargain collectively with the Union as the exclusive collective bargaining representative of employees within the ap- propriate bargaining unit although the Union was and is the statu- tory representative of these employees for purposes of collective bargaining. Among other things, the respondent has refused to grant the Union recognition as the statutory representative and has refused to reduce to or embody in a signed agreement understandings and oral agreements reached with it. Accordingly, we shall order the respondent to cease and desist from refusing to bargain collec- tively with the Union and, in aid of such order and to remove the effects of the respondent's conduct and restore the status quo, we shall order the respondent to recognize and otherwise bargain collectively, upon request, with the Union, as the exclusive representative of all the employees in the appropriate unit, and in connection therewith- if understandings or oral agreements are had or reached with the Union to reduce or embody such understandings or oral agreements; to or in a signed agreement, if requested to do so by the Union. We also have found that the respondent dominated and interfered with the formation and administration of, and supported, the Tan- craft Workers, and that that organization is not nor has it ever been the employees' genuine choice of collective bargaining representative. The facts heretofore found establish, and we find, that the Tancraft Workers is incapable of ever serving as a true collective bargaining agency of the employees. Its existence does and will constitute a continuing obstacle to the exercise by the respondent's employees of the rights guaranteed them by the Act. Hence, not only shall we order the respondent to cease and desist from its unfair labor prac- tices in connection with the Tancraft Workers, but in aid of that order and to remove the impediment thus established to the em- ployees exercising freely their rights under the Act, we shall direct the respondent to withhold recognition from the Tancraft Workers, as a representative of its employees, to disestablish that organization as such a representative, and to refrain from giving effect'-to or .per- forming any and all existing contracts, understandings, or ar-range- mehts concerning labor r.elations_ to which the ,Tancraft Workers ,is a party. 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, we have found that the respondent by its foregoing un- fair labor practices, and various other acts has interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed by the Act. We shall order the respondent to cease and desist from such unfair labor practices. We also shall direct certain other action necessary to remedy the situation. THE PETITION In view of findings in Section III above as to the appropriate bargaining unit and the designation of the Union by a majority of the respondent's employees in the appropriate unit as their represen- tative for the purposes of collective bargaining, it is not necessary to consider the petition of the Union for an investigation and certifica- tion of representatives. Consequently, said petition will be dismissed. Similarly, in view of the findings above in respect to the respond- ant's acts concerning the Tancraft Workers, any application herein by that organization for an investigation and certification of repre- sentatives or for a determination of itself as a collective bargaining representative of employees of the respondent, will be denied.54 Upon the basis of the foregoing findings of fact, and upon the entire record in the cases, the Board makes the following : CONCLUSIONS OF LAW 1. Leather Workers Union of Gowanda, Local No. 44 of the In- ternational Fur Workers Union of the United States and Canada, affiliated with the C. I. 0., formerly known as National Leather Workers Association, Local #44, affiliated with the Committee for Industrial Organization, and as Gowanda Leather Workers Asso- ciation; and Tancraft Workers of Gowanda are labor organiza- tions, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed 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. 3. By dominating and interfering with the formation and ad- ministration of Tancraft Workers of Gowanda and by contributing support to it, the respondent has engaged in and is engaging in un- fair labor practices, within the meaning of Section 8 (2) of the Act. 4. All the respondent's production and maintenance employees at its Gowanda plant, including janitors, watchmen, truckers, and 54 Cf. N L. R. B v. The Falk Corporation, 308 U. S 453, aff'g 102 F (2d) 383 (C C A 7), enf'g Matter of The Falk Corporation and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge 1528, 6 N. L. R. B. 654. BROWN SHOE COMPANY, INC. 1113 sweepers, but excluding executives, foremen, subforemen or straw- bosses, supervisors, office and clerical workers, employees having the right to hire and discharge, and safety men, constituted and con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 5. Leather Workers Union of Gowanda, Local No. 44 of the In- ternational Fur Workers Union of the United States and Canada, affiliated with the C. I. 0., formerly known as National Leather Workers Association, Local #44 affiliated with the Committee for Industrial Organization, and as Gowanda Leather Workers Asso- ciation, is and at all times since September 1, 1937, has been the exclusive representative of all employees in such unit for the pur- pose of collective bargaining, within the meaning of Section 9 (a) of the Act. 6. By refusing on September 11, 1937, and thereafter, to bargain collectively with Leather Workers Union of Gowanda, Local No. 44 of the International Fur Workers Union of the United States and Canada, affiliated with the C. I. 0., formerly known as National Leather Workers Association, Local #44, affiliated with the Com- mittee for Industrial Organization and as Gowanda Leather Work- ers Association, as the exclusive representative of all its 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. 7. The aforesaid unfair labor practices, and each of them, 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, Moench Tanning Company, Inc., Gowanda, New York, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Leather Workers Union of Gowanda, Local No. 44 of the International Fur Workers Union of the United States and Canada, affiliated with the C. I. Cr, formerly known as National Leather Workers Association, Local #44, of the Committee " for Industrial Organization and as Gowanda Leather Workers Association, as the exclusive representative of all its pro- duction and maintenance employees at its Gowanda plant, including janitors, watchmen, truckers, and sweepers, but excluding executives, foremen, subforemen or strawbosses, supervisors, office and clerical 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD workers, employees having the right to hire and discharge, and safety men ; (b) In any manner dominating or interfering with the adminis- tration of Tancraft Workers of Gowanda, or with the formation or administration of any other labor organization of its employees, and from contributing support to Tancraft Workers of Gowanda or to any other labor organization of its employees; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act; (d) Giving effect to or performing any and all contracts, under- standings, and arrangements relating to rates of pay, wages, hours of employment, or other conditions of employment to which Tancraft Workers of Gowanda is a party. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Leather Workers Union of Gowanda, Local No. 44 of the International Fur Workers Union of the United States and Canada, affiliated with the C. I. 0., as the exclusive representative of all its production and maintenance employees at its Gowanda plant, including janitors, watchmen, truckers, and sweepers, but excluding executives, foremen, subfore- men or strawbosses, supervisors, office and clerical workers, employees having the right to hire and discharge, and safety men, in respect to rates of pay, wages, hours of employment, and other conditions of employment; and if understandings or oral agreements are had or reached with said labor organization upon such matters, embody said understandings and oral agreements in a signed agreement or agreements, if, requested to do so by said labor, orgaiiizatioil; (b) Withdraw all recognition from and refrain from recognizing Tancraft Workers of Gowanda as the representative of any of its employees for the purpose of dealing with the respondent in any manner concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; and completely disestablish Tancraft Workers of Gowanda as such representative; (c) Post immediately in conspicuous places at its plant in Go- wanda, New York, and maintain for a period of at least sixty (60) consecutive days from,the date of the posting, notices to-its..employees stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c) and BROWN SHOE COMPANY, INC. 1115 (d) of this Order, and (2) that the respondent will take the affirma- tive action set forth in 2 (a) and (b) of this Order; (d) Notify the Regional Director for the Third 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 complaint be, and it hereby is, dismissed, in so far as it alleges that Brown Shoe Company, Inc., St: Louis; Missouri, has engaged in unfair labor practices, within the meaning of the Act. AND IT IS FURTHER ORDERED that the petition for investigation and certification of representatives filed herein by National Leather Work- ers Association, Local #44, affiliated with the Committee for Indus- trial Organization, now known as Leather Workers Union of Gowanda, Local No. 44 of the International Fur Workers Union of the United States and Canada, affiliated with the C. I. 0., be, and it hereby is, dismissed. AND IT IS FURTHER ORDERED that any application herein by Tancraft Workers of Gowanda for an investigation and a determination of representatives or for a certification of itself as collective bargaining representative, be, and it hereby is, denied. MR. Wmmiu M. LEISERSON took no part in the consideration of the above Decision and Order.