Addison Shoe Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 333 (N.L.R.B. 1970)

ADDISON SHOE CORPORATION
Addison Shoe Corporation and Industrial , Technical
and Professional Employees , a Division of Na-
tional Maritime Union , AFL-CIO. Case
26-CA-3229
June 30, 1970
SUPPLEMENTAL DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND JENKINS
On February 14, 1969, Trial Examiner Paul E.
Weil issued his Decision in the above-entitled
proceeding, granting General Counsel's Motion for
Judgment on the Pleadings, finding that Respon-
dent had engaged in and was engaging in certain
unfair labor practices within the meaning of the Na-
tional Labor Relations Act, as amended, and
recommending that Respondent cease and desist
therefrom and take certain affirmative action. More
specifically, the Trial Examiner found that Respon-
dent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Industrial, Technical
and Professional Employees, a Division of National
Maritime Union, AFL-CIO, hereinafter referred to
as the Union, which, pursuant to a second election
held on August 28, 1968, in Case 26-RC-3130,
was duly certified as the exclusive bargaining
representative in an appropriate unit of certain of
Respondent's employees, and recommended, inter
alia, that Respondent bargain with the Union upon
request. Thereafter, finding merit in certain of
Respondent's exceptions to the Trial Examiner's
Decision, the Board remanded the proceeding to
the Regional Director for the purpose of arranging
a hearing limited to the resolution of the issues
raised by Respondent's Objection 1 to the second
election. Accordingly, the record was reopened for
that limited purpose, and a hearing thereon was
held before Trial Examiner William F. Scharnikow
On January 14, 1970, Trial Examiner William F.
Scharnikow issued his Supplemental Decision in the
above-entitled proceeding, finding that the
evidence neither supports Respondent's Objection
1 nor furnishes any ground for setting aside the
second election, that the Union had been properly
certified as the exclusive bargaining representative
of certain of Respondent's employees in an ap-
propriate unit, and recommending that the Board
adopt the findings, conclusions, and recommenda-
tions of both his Supplemental Decision and Trial
Examiner Weil's Decision, both of which are at-
tached hereto. Thereafter, Respondent filed excep-
tions to the Trial Examiner's Supplemental Deci-
sion, together with a supporting brief.
333
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has considered the Trial Examiners'
Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations as set forth in
the Trial Examiner's Supplemental Decision, with
the following modification.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
recommended Order of the Trial Examiner Weil's
Decision, and orders that Respondent, Addison
Shoe Corporation, Wynne, Arkansas, its officers,
agents, successors, and assigns, shall take the action
set forth in that Trial Examiner's recommended
Order.
' While Respondent is correct in urgihg that the hearing on objections
should have been conducted in accordance with the rules applicable to
nonadversary proceedings, we do not find that the exclusion of the particu-
lar hearsay evidence referred to in Respondent 's Objection I constituted
prejudicial error It should be noted in this connection that Respondent did
not offer the direct testimony of any of the employees whose statements to
their supervisors were excluded, nor did Respondent make any claim that
they were unavailable In fact, the record would indicate the contrary,
since at least one of the said employees was present at the hearing
Where direct testimony is apparently available , we cannot say that a
Hearing Officer exceeds the bounds of his discretion in conducting an
orderly hearing if he restricts to a reasonable degree the receipt of
secondary and inherently less reliable evidence
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WELL, Trial Examiner : Upon a charge
filed by Industrial , Technical and Professional Em-
ployees, a Division of National Maritime Union,
AFL-CIO , hereinafter called the Union, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 26, is-
sued a complaint dated December 9, 1968, against
Addison Shoe Corporation , herein called the
Respondent , alleging that Respondent had engaged
in and was engaging in unfair labor practices within
the meaning of Sections 8(a)(5) and ( 1) and 2(6)
and (7 ) of the National Labor Relations Act, as
amended . Copies of the charge, complaint and
notice of hearing before a Trial Examiner were duly
served on the parties to this proceeding.
The complaint alleges that the Union, having
been duly certified on October 11, 1968, as the ex-
clusive collective -bargaining representative of
184 NLRB No. 35
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's employees in an appropriate unit, has
requested Respondent to bargain collectively since
November 20, 1968, and that since such date
Respondent has failed and refused to bargain with
the Union as the representative of the employees in
the unit. On December 13, 1968, Respondent filed
its answer to the complaint in which it admitted in
part and denied in part the allegations contained
therein and denied that any unfair labor practice
had been committed.
On December 20, 1968, the General Counsel
filed with the Chief Trial Examiner a Motion for
Judgment on the Pleadings, asserting that there
were no issues of fact or law requiring a hearing
and requesting the issuance of a recommended
decision finding the violation as alleged in the com-
plaint and remedying the violations. Thereafter on
January 6, 1969, Trial Examiner Charles W.
Schneider issued an order to show cause
why General Counsel's motion should not be
granted. Pursuant thereto Respondent filed its
response to the order to show cause with four sup-
porting affidavits. General Counsel thereafter filed
a motion to strike the four affidavits to which the
General Counsel filed an opposition.'
Upon the entire record' in this case, and in con-
sideration of the motions and the responses thereto
I make the following ruling:
Ruling on the Motion for Summary Judgment
The record establishes that the Union filed a peti-
tion in Case 26-RC-3130 seeking to represent a
unit of Respondent 's production and maintenance
employees After a hearing the Regional Director
for Region 26 issued a Decision and Direction of
Election on April 25, 1968, in which he found ap-
propriate for bargaining the following unit of em-
ployees.
All production and maintenance employees at
Respondent 's Wynne, Arkansas plant exclud-
ing all office clerical employees , guards and su-
pervisors as defined in the Act.
An election was held pursuant to the Regional
Director 's orders in which 198 votes were cast for
the Union , 12 votes for the Intervenor, Boot and
Shoe Workers Union , AFL-CIO , which sub-
sequently withdrew , and 206 against the participat-
ing labor organization . Three ballots were void and
20 were challenged . The Union filed objections
which were investigated and pursuant to which a
Supplemental Decision and Direction of Second
Election was issued by the Regional Director
sustaining certain challenges, sustaining one of the
Union 's objections, setting aside the election, and
directing a second election.
' The motion is denied The affidavits were properly attached in support
of Respondent 's proffer of evidence
Y Administrative notice is taken of the record in the representation
proceeding , Case 26-RC-3130, as the term " record " is defined in Sec
102 68 and 102 69 (t) of the Board ' s Rules and Regulations , Series 8, as
On August 28 a second election was conducted
at which a majority of votes were cast for the
Union. On September 5, 1968, Respondent filed
timely objections which, after investigation, were
overruled by the Regional Director and the Union
was certified Respondent filed a request for review
of the Regional Director's Second Supplemental
Decision and Certification of Representative which
the Board denied by telegraph on November 13,
1968, on the ground that it raised no substantial
issue warranting review. The Board further stated,
with regard to a request by Respondent for a hear-
ing to adduce certain evidence set forth in its
request for review, that "even if the evidence ad-
vanced in support of Objection 1 were credited the
employees could reasonably evaluate it as
propaganda and would not warrant setting aside the
election " Since November 26, 1968, the Union has
been demanding and Respondent has refused bar-
gaining with the Union as the exclusive bargaining
representative of the employees in the unit certified
pursuant to the representation case and the Union
filed the charges upon which these proceedings are
predicated.
In its response to the notice to show cause
Respondent submits that the motion of General
Counsel should be denied on the following grounds.
( I ) That the General Counsel fails to state grounds
for the motion, (2) that the summary proceeding is
abnormal in a situation such as that existing here,
(3) that Respondent is denied due process if it is
not granted a hearing herein on the issues allegedly
raised by its Objection 1 to conduct affecting
the results of the second election, and finally that
the motion does not meet the requirements of Rule
56(c) of the Federal Rules of Civil Procedure, in
that there is a genuine issue as to the validity of the
election and the status of the Union and a hearing
is required.
It is well settled that in the absence of newly
discovered or previously unavailable evidence a
Respondent in an 8 (a)(5) proceeding is not entitled
to relitigate issues which were or could have been
raised in the prior representation proceeding.3
Respondent's contention that the Board's own
Rules and Regulations, the Administrative
Procedure Act, and the Labor Management Rela-
tions Act all guarantee an absolute right to hearing
is not correct. Where no litigable issues have been
raised the Board may entertain and rule upon mo-
tions for summary judgment or judgment on the
pleadings and has done so in numerous cases with
court enforcement. See LTV Electrosystems, Inc. v.
N L R.B., 388 F.2d 683 (C.A. 4, 1968); N.L.R.B. v.
Aerovox Corporation, of Myrtle Beach, S.C., 390
F.2d 653 (C.A. 4, 1968); Neuhoff Brothers,
Packers, Inc. v. N.L.R.B., 362 F.2d 611 (C.A. 5,
amended See LTV Electrosystems, Inc , 166 NLRB 938, enfd 388 F 2d
683 (C A 4, 1968), Golden Age Beverage Co , 167 NLRB 151, 9(b) of the
NLRA
9 Pacific Intermountain Express Company, 173 NLRB 470 , and cases
therein cited
ADDISON SHOE CORPORATION
1966); N.L.R.B. v. Tennessee Packers, Inc., Frosty
Morn Division, 379 F.2d 172 (C.A. 6, 1967); Fol-
lett Corporation v. N.L.R.B., 397 F.2d 91 (C.A. 7,
1968).
With regard to Respondent's contention that it
must be afforded a hearing on its first objection,
this contention was raised in the representation
case and specifically in the appeal from the Re-
gional Director's issuance of the certification.
While the Board in that matter did not afford
Respondent a hearing, it is obvious from the
Board's telegram that the material which Respon-
dent proffers was considered by the Board and re-
jected. In any event in the absence of material un-
resolved factual issues or newly discovered or
previously unavailable evidence or special circum-
stances, none of which are asserted to be present
here, and under the circumstances, that the conten-
tions now made were raised in the earlier represen-
tation case and were rejected, there are no un-
resolved issues requiring an evidential hearing. In-
asmuch as Respondent admits that it has refused to
bargain with the Union, asserting that the Union is
not the legally certified representative of Respon-
dent's employees and the Board having found the
contrary in the representation case, the motion of
the General Counsel for summary judgment on the
pleadings is granted.
On the basis of the record before me I hereby
make the following further:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Arkansas corporation, is engaged
in the manufacture and distribution of shoes from
its plant located at Wynne, Arkansas. During the
past 12 months, a representative period, Respon-
dent manufactured and shipped from its Wynne,
Arkansas, plant its product valued in excess of
$50,000 directly to points located outside the State
of Arkansas. It is admitted and I find that Respon-
dent is and has been at all times material herein an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Industrial , Technical and Professional Em-
ployees, a Division of National Maritime Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees at Respondent's
Wynne, Arkansas , operation constitute a unit ap-
335
propriate for collective bargaining within the mean-
ing of Section 9(b) of the Act.
All production and maintenance employees at
Respondent's Wynne, Arkansas plant exclud-
ing all office clerical employees, guards and su-
pervisors as defined in the Act.
2. The certification
On August 28, 1968, a majority of the employees
of Respondent in said unit in an election by secret
ballot conducted under the supervision of the Re-
gional Director for Region 26 designated the Union
as their representative for the purpose of collective
bargaining with Respondent and on October 11,
1968, the Regional Director for Region 26 certified
the Union as the collective-bargaining representa-
tive of the employees in said unit and the Union
continues to be such representative.
B. The Request To Bargain and the Respondent's
Refusal
Commencing on or about November 26, 1968,
and continuing to date the Union has been
requesting the Respondent to bargain collectively
with it with respect to wages, hours, and working
conditions of the employees in the appropriate unit.
At all times since November 26, 1968, Respondent
admittedly has refused to recognize and bargain
collectively with the Union as exclusive collective-
bargaining representative of all employees in said
unit. Accordingly I find that Respondent has
refused to bargain collectively with the Union as
the exclusive bargaining representative of the em-
ployees in the appropriate unit and that by such
refusal Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
operations described in section I, above, have a
close, intimate, and substantial relationship 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.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act I shall recommend
that it cease and desist therefrom and upon request
bargain collectively with the Union as the exclusive
representtive of all employees in the appropriate
unit , and if an understanding is reached embody
such understanding in a signed agreement.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law I shall recommend that the initial year of
certification be construed as beginning on the date
that Respondent commences to bargain in good
faith with the Union as a recognized bargaining
representative in the appropriate unit. See Pacific
Intermountain Express Company , supra, and cases
there cited.
CONCLUSIONS OF LAW
1. Addison Shoe Corporation is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2 Industrial, Technical and Professional Em-
ployees, a Division of National Maritime Union,
AFL-CIO, is a labor'organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees
employed by Addison Shoe Corporation at its
Wynne, Arkansas, plant, excluding all office cleri-
cal employees, guards, and supervisors as defined
in the Act constitute a unit appropriate for the
purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since November 26, 1968, the above-named
labor organization has been certified as the exclu-
sive representative of all employees in the aforesaid
appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about November 26, 1968,
and at all times thereafter to bargain collectively
with the above-named labor orgainzation as the ex-
clusive bargaining representative of all the em-
ployees of Respondent in the appropriate unit
Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section
8(a)(5) of the Act.
6. By the aforesaid refusal to bargain Respon-
dent has interfered with, restrained, and coerced
and is interfering with, restraining, and coercing
employees in the exercse of the rights guaranteed
them in Section 7 of the Act and thereby engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)( I) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and
upon the entire record in the case I recommend
that the Board issue the following:
(a) Refusing to bargain collectively concerning
wages, hours and other terms and conditions of em-
ployment with Industrial , Technical and Profes-
sional Employees , a Division of National Maritime
Union , AFL-CIO, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit.
All production and maintenance employees of
Addison Shoe Corporation at its Wynne, Ar-
kansas plant excluding all office clerical em-
ployees, guards and supervisors as defined in
the Act.
(b) In any like or related manner interfering
with , restraining, or coercing employees in the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Upon request bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay , wages, hours, and other
terms and conditions of employment and if an un-
derstanding is reached embody such understanding
in a signed agreement.
(b) Post at its Wynne, Arkansas , place of busi-
ness copies of the attached notice marked
"Appendix."' Copies of said notice , on forms pro-
vided by the Regional Director for Region 26, after
being duly signed by Respondent's representative,
shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter , in conspicuous
places, including all places where notices to em-
ployees are customarily posted . Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered , defaced , or covered by any
other material.
(c) Notify the Regional Director for Region 26,
in writing , within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.5
4 In the event that this Recommended Order is adopted by the Board, the
words "A Decision and Order" shall be substituted for the words "The
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "A Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "A Decision
and Order "
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 26, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
ORDER
Addison Shoe Corporation its officers , agents,
successors, and assigns , shall:
1. Cease and desist from:
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
ADDISON SHOE CORPORATION
tional Labor Relations Act, as amended , we hereby
notify our employees that.
WE WILL NOT refuse to bargain collectively
with Industrial , Technical and Professional
Employees , a Division of National Maritime
Union , AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL upon request bargain with the
above-named Union as the exclusive represent-
ative of all the employees in the bargaining
unit described below with respect to wages,
hours, and other terms and conditions of em-
ployment and if an understanding is reached
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance em-
ployees of Addison Shoe Corporation at
its Wynne , Arkansas plant excluding all
office clerical employees , guards and su-
pervisors as defined in the Act.
ADDISON SHOE
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 746 Federal Office Building, 167 North
Main Street, Memphis, Tennessee 38103,
Telephone 901-534-3161.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: In a
Decision issued on February 14, 1969, Trial Ex-
aminer Paul E. Weil granted the General Counsel's
motion for summary judgment on the pleadings in
the above-entitled case and found that the Respon-
dent had violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, by
refusing to bargain with the Union which had been
certified by the Regional Director for Region 26 on
' By telegraphic order issued in the representation case on November 13,
1968, the Board dented the Respondent 's request for a review of the Re-
337
October 11, 1968, in Case 26-RC-3130, following
a second election conducted on August 28, 1968,
in a unit of production and maintenance employees
at the Respondent's Wynne, Arkansas, plant. As
appears more fully in Trial Examiner Weil's Deci-
sion, he recommended the issuance of a Board
Order directing the Respondent, upon request, to
bargain collectively with the Union as the exclusive
bargaining representative of the Respondent's em-
ployees in the certified unit.
On March 10, 1969, the Respondent filed excep-
tions to Trial Examiner Weil's finding that the
Union is the legally certified bargaining representa-
tive in the appropriate unit It contends that the
election of August 28, 1968, should have been set
aside by the Regional Director or the Board in Case
26-RC-3130 on the basis of the Respondent's ob-
jections to the election or, alternatively, that the
Respondent should have been afforded a hearing
on the issues raised in its Objection I, the sole ob-
jection on which the Respondent requested review
by the Board.'
Upon consideration of the Respondent's excep-
tions to Trial Examiner Weil's Decision, the Board
by order issued on July 17, 1969, and amended on
August 27, 1969, reopened the record, remanded
the present proceeding to the Regional Director for
Region 26, and directed that a full hearing be held
before a duly designated Trial Examiner of the
Boaid on issues raised by Respondent's Objection I
to the second election in Case 26-RC-3130. The
Board further ordered that:
[U]pon the conclusion of such hearing, the
Trial Examiner shall prepare and serve on the
parties a Supplemental Decision containing
findings of fact and such conclusions of law
and recommendations as he may deem ap-
propriate based on the evidence received pur-
suant to the provisions of this Order and the
entire record in this proceeding; and that fol-
lowing the service of such Supplemental Deci-
sion on the parties, the provisions of Section
102.46 of the Board's Rules and Regulations
shall be applicable.
Pursuant to notice, the supplemental hearing
directed by the Board was held at Wynne, Arkan-
sas, on September 4, 1969, before me, the Trial Ex-
aminer dully designated by the Chief Trial Ex-
aminer. The General Counsel, the Respondent, and
the Union appeared by their respective counsel and
were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to in-
troduce evidence bearing upon the merits of the
Respondent's Objection I, which the Respondent
had filed as the Employer in Case 26-RC-3130.
Since the close of the hearing, I have received and
considered briefs filed by counsel for the Respon-
dent and counsel for the Union
Upon the evidence received by me in the supple-
gional Director's action in certifying the Union and dismissing the Respon-
dent's objections upon investigation but without hearing
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mental hearing of September 4, 1969, my observa - B. The Evidence
tion of the witnesses, and a consideration of the en-
tire record in this proceeding,' I make the following
findings of fact, supplemental conclusions of law,
and recommendations:
FINDINGS OF FACT
A. Respondent's Objection Ito the Election of
August 28, 1968
In March 1968, the Respondent completed U.S.
Government shoe contracts which had furnished 95
percent of its orders, and was forced to lay off a
substantial number of its employees. In July or Au-
gust 1968, it acquired new government contracts
and, by the time of the representation election on
August 28, 1968, had begun to hire and rebuild its
workforce. Objection I, which the Respondent filed
with the Regional Director in the representtion case
in an attempt to upset the election apparently won
by the Union, alleged that in this setting the
Union's representatives had made certain improper
preelection statements to the employees concerning
the injurious effect which the Union's loss of the
election and the Respondent's failure to enter into
a contract with the Union on the Union's terms
would have upon the Respondent's business and the
employment prospects of employees in the bargain-
ing unit.
Specifically, in Objection I, the Respondent,
referring to itself as " the Employer" or "Addison"
and to the Union as the "Petitioner," stated that:
During the course of a meeting attended by
the Employer's employees on or about August
26, 1968, and thereafter on other occasions,
the Petitioner, by its officers, agents and
representatives, stated that:
1. The Employer's ability to secure con-
tracts from the United States Government,
its major customer, was dependent on the
Petitioner 's success in the election;
2. Addison would obtain more Govern-
ment contracts if the Petitioner
represented the employees;
3. Addison's customers, civilian and
otherwise, would purchase more of its
product with the Union label appearing
thereon; and,
4. If the Employer did not agree to the
Petitioner's contract demands, as ex-
pressed to the employees, the Petitioner
could, and would, cause its Government
contracts to be stopped.
' The record prior to the hearing held by me (i e , the record before Trial
Examiner Weil as well as his Decision thereon ) consists of the documents
filed in the formal files of Cases 26-RC-3130 and 26-CA-3229, all of
The evidence offered and taken before me at the
supplemental hearing on September 4, 1969, dealt
with the factual issue of whether in a union meeting
held at the National Guard Armory in Wynne on
August 26, 1968, 2 days before the second
representation election, any one or more of the
three union representatives who appeared at the
meeting (J. C. Hughes, Robert Collilieux, and
Mack Hall) made any or all of the statements al-
leged in Respondent's Objection I to the approxi-
mate 75 employees who attended the meeting.
To support the substance of its objection, the
Respondent produced the direct testimony of one
witness, employee Richard B. Robinson, and
proffered only the additional testimony of three of
its supervisors (James Caldwell, Jerry Evans, and
Russell Harper) concerning what Robinson and em-
ployees Mary DeLoach, Helen Russell , Barbara
Woods, Joe Harris, and a Mrs Johnson had told
them was the substance of the remarks made by the
union representatives at the meeting. On the
Union's objection, I excluded this latter testimony
as hearsay. The Respondent did not offer the
testimony of employee Helen Russell although she
was in the hearing room during the trial. Nor did
the Respondent produce any testimony by the other
employees who had assertedly given their versions
of the meeting to the Respondent's supervisors. Nor
did it claim that these employees were unavailable
to testify
On the other hand, the Union produced the
direct testimony of the three union representatives
concerning the meeting and that of three em-
ployees who had attended the meeting. In addition,
the General Counsel made available the testimony
of other employees who had submitted affidavits to
the Regional Director in the representation case,
although only two of this latter group testified be-
fore me since it appeared from the General Coun-
sel's representation that the testimony of the others
would be cumulative and both the Respondent and
the Union disclaimed any desire to put them on the
witness stand.
1. The testimony of Richard B. Robinson
Employee Richard Robinson, as the Respon-
dent's witness, testified that he attended the union
meeting at the National Guard Armory 3 days be-
fore the election of August 28, 1968, with approxi-
mately 70 other employees and that the meeting
was conducted by three union representatives. Dur-
ing his direct examination, he was able to identify
one of these representatives as Mack Hall and the
other two merely as "Joseph" and a union
which I have examined and considered pursuant to the Board's Orders of
July 17 and August 27, 1969
ADDISON SHOE CORPORATION 339
representative from St. Louis. He also testified that
it was Hall and "Joseph" who made the general re-
marks to the employees which the Respondent
claims were improper. But during his cross-ex-
amination, Robinson identified Robert Collilieux
who was sitting in the hearing room as "Joseph"
and, although he was not sure, he testified both that
J. C. Hughes (who was also there in the hearing
room) might have been the union representative
from St. Louis,3 and that, although Hall and Col-
lilieux did speak to the employees, Hall, after lead-
ing the employees in a pledge of allegiance to the
flag and making some comments of his own, might
have turned the meeting over to Hughes and left
the front of the meeting to go to the door of the
hall in which the meeting was held.
It was on this confusing foundation that Robinson
testified concerning what one or another of the
union representatives told the employees first in
general opening statements about wages and job
classifications, the contract the Union expected to
get, and union dues and forms of assistance, and
then in answer to specific questions asked by vari-
ous employees. With respect to the matters raised
by the Respondent's Objection I, Robinson testified
on direct examination that in speaking of the im-
portance of the Union's winning the representation
election, the union representatives told the em-
ployees that ". . . [I]f we don't get in, we will hold
up the shoe contract, if we do get in, we will still
hold up [the Respondent's shoe contract] until we
negotiate a [Union] contract . . and the factory
would automatically have to [shut] down. .." In
development of this theme, according to Robinson,
the union representatives said that the Union "had
influence connected with the government" and, by
"some kind of talk with the government," could
either "help the Company get more contracts" or,
if it lost the election or was unable "to negotiate a
contract" with the Respondent to its liking, it could
have the Respondent's shoe "contract cut off "
On cross-examination, Robinson testified that the
employees asked the union representatives what
would happen to their jobs "if the contract gets
turned down," how long they would be on strike if
a strike were called, and, if a contract were
negotiated with the Respondent would it necessari-
ly be on the Union's terms. To this last question,
according to Robinson, the union representative
said that the Union would settle for what it could
get in the first year and then increase its demands
until it got what it wanted. Still according to Robin-
son on his cross-examination, one of the employees
asked whether the Union could stop the Respon-
dent's shoe contracts, and the union representative
answered, "Yes, it could be stopped" although he
did not say how. On redirect examination, Robin-
son testified that the union representative said that
"if the Union did not get in" (i.e., win the elec-
tion), it would have the Respondent's shoe con-
tracts "turned down",but on further questioning by
union counsel, he corrected himself and testified
that the union representative said the Union would
try to get the government contracts stopped, not if
it lost the representation election, but if the Union
"didn't get the contracts [with the Respondent]
negotiated to suit them."
2. The testimony of other employees
The three employees who testified as witnesses
for the Union (Edith Porter, Raymond Gilbert, and
Gladys D. Thomas) and the remaining two em-
ployees whose testimony was presented by the
General Counsel (Mattie Caldwell and James L.
Counce) had no recollection that Union Represen-
tative Mack Hall spoke to the employees at the
meeting except to lead the pledge of allegiance
after which he left the front of the meeting to go to
the door, greet and seat late arrivals, and take pic-
tures All five of these employee-witnesses agreed
that it was Hughes (whom some of them did not
know by name at the time) who addressed the au-
dience and answered questions during the meeting.
One of these five employee-witnesses (Mattie
Caldwell) testified flatly that none of the statements
listed in Respondent's Objection I was in fact made
by the Union's representatives. Three others
(Porter, Gilbert, and Thomas) testified that they
did not hear-and the remaining employee witness
(Counce) testified that he did not recall-the union
representatives' making any such statements
Moreover, each of the employee-witnesses in this
group who was specifically asked by counsel,
testified that he did not hear or recall any mention
of an "unfair list"" or any references to "govern-
ment contracts,"5 or to the Union's " influence with
the government."'
But the recollection by these witnesses of what
Hughes or either of the other union representatives
said throughout the meeting was meager, it appear-
ing from their testimony that some of the women
employees had brought their children, that refresh-
ments were served, and that the meeting was noisy.
Employee Edith Porter could recall nothing that
was said. Employee Raymond Gilbert could recall
nothing that was said except that a union contract
was discussed. Employee Jewel Thomas remem-
bered the union representatives' saying that the
Union would "try to help [the Respondent] get
more and better contracts" and thus "benefit" the
employees. And employee James Counce testified
that he could not remember either Hughes or Col-
lilieux making any statements except in answer-
ing questions from the floor as to the contract terms
J Just before this, Robinson had tentatively identified John Frank, who
was in the audience and was an NMU agent from St Louis, as the impor-
tant union visitor to the August employees' meeting
' Testimony of Raymond Gilbert
Testimony of James Counce
s Testimony of Jewel Thomas and Mattie Caldwell
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the Union could negotiate, like "better in-
surance" and a "better vacation "
3. The testimony of the union representatives
Testifying as witnesses for the Union, its three
representatives (Hughes, Collilieux, and Hall) de-
nied that any of them had made any of the state-
ments attributed to them in the Respondent's Ob-
jection I at the employee meeting on August 26,
1968. All of them agreed that, except for leading
the pledge of allegiance and turning the meeting
over to Hughes, Hall did not address the meeting
but occupied himself in greeting employees at the
door, seeing that they were seated, and taking pic-
tures for the NMU's publication. They further
agreed that it was Hughes who spoke to the people
at the meeting and answered most of the questions
from the floor, although Collilieux also answered
some of the questions.
In addition to denying having made or heard any
of the statements outlined in Respondent 's Objec-
tion I, Hall testified that he was in fact too busy to
hear what Hughes or Collilieux said at the meeting
and that, although some of the employees did ask
him some questions, none of the questions nor his
answers related to stopping the Respondent's
government contracts, the Union's possible
assistance in getting more government contracts,
strikes, or an unfair list.
Hughes testified that in his opening remarks he
spoke of rumors reported to him that the Union's
dues and assessments were high, that he therefore
explained the Union's dues structure and the
absence of assessments , that he referred to the loss
by unions of six previous representation elections in
the plant and the importance of winning the coming
election since it was unlikely that any union would
ever again attempt to organize the plant, and that
he warned them that foremen might question them
about their signing cards or otherwise supporting
the Union and that if this happened, it was an un-
fair labor practice. In addition to denying their hav-
ing made any of the remarks charged in Respon-
dent's Objection I, Hughes also specifically denied
that he or Collilieux told the employees at the
meeting that the Union had "influence with the
government" or could "in any way stop the govern-
ment's contracts," that the Respondent would
receive more contracts if it "would have [the]
Union," that "future contracts of the Company
were in any way dependent on the Union winning
the election," or that the Union was "able to call
somewhere to have the [Company's] contracts
stopped because they were not treating their people
right." According to Hughes' testimony, there were
questions from employees as to whether higher
union wages would price the Respondent out of
government contracts, and whether the Respondent
could protect its production in the event of a strike,
by using "scabs." Hughes testified that he told the
employees the Respondent would be compensated
for higher union wages by the usual "escalation
clauses" in government contracts and that, in
answer to the second question, he told the em-
ployees, without any reference to government con-
tracts, that in the event of a strike the Union would
ask the AFL-CIO to put the Respondent on a
"don't purchase list" or an "unfair list."
Collilieux, the third union representative,
testified that after Hughes made his opening state-
ment, Hughes and he answered questions from the
audience and that neither of them made any of the
statements charged in Respondent's Objection I. He
testified that, in answer to questions about strikes
he said "We would have an election first and that if
the Company did not negotiate then it was up to
the membership to elect what they wanted to do."
Although he could not recall making any comments
about how negotiations would be handled, Colliliex
admitted in his testimony that he might have said
that the Union would resort to a strike only if it
"could not get anything out of the Company." He
denied making any comments during the meeting
about having influence with the government, or
saying that if the Company did not bargain or
"negotiate the way the Union wanted, the Union
would stop the government or other contracts," or
that, "If the Company would not sit down and
negotiate, he thought certain pressure could be
brought to bear upon the Company" through the
government. Finally, although adhering to his deni-
als that he had made any of the foregoing state-
ments or had referred to "government contracts"
or "procurement agencies" in the meeting of Au-
gust 26, Collilieux admitted in his testiomy that at a
committee meeting with some of the employees an
August 20 or 24, he did say that "if the Company
could not face the responsibility in negotiating in
good faith and [a] strike was called by the member-
ship, we would go all out including appealing to a
procurement agency or some type of agency
requesting that the government take a second look
at their contracts."
C. Conclusions
The Respondent's Objection I to the election of
August 28, 1968, has already been set forth ver-
batim. Its gravamen is that the Union's representa-
tives made improper preelection statements to the
employees and thus prevented a free and fair elec-
tion, by urging the employees to vote for the Union
because the Union had a special influence with the
government whose contracts were the principal
source of Respondent's business and the Union
could and would effectively exert this influence
either to help the Respondent get more contracts if
the Union won the election, or "to stop" the
Respondent's government contracts if the Union
lost the election or was unable to get the contract it
wanted with the Respondent.
ADDISON SHOE CORPORATION 341
The evidence which has been summarized in
detail does not support the Respondent's position.
The testimony of employee Richard Robinson, the
only direct witness the Respondent was able to
produce at the hearing was in my opinion so vague
and uncertain as to what happened and what the
Union's representatives actually said at the meeting
of August 26, as to be unpersuasive Furthermore,
the only employee-witnesses produced by the
Union and the General Counsel, although they
were unable to give anything like a full account of
the remarks made to them by the union representa-
tives at the meeting, either denied, or could not re-
call, any statements in the substance alleged in the
Respondent's objection But the testimony of the
three union representatives was clear, presented
what appeared to be substantially a full account of
the material substance of their remarks to the em-
ployees at the meeting, and in my opinion is credi-
ble.
Accordingly, upon consideration of the evidence
before me, I credit not only the specific denials by
the three union representatives that they made any
statements to the employees in the form or sub-
stance charged in Respondent's Objection I, but
also their detailed denials of the various separate
elements, expressed or implied in the Respondent's
objection, i.e., that the union representatives told
the employees (1) that the Union had influence
with the government; (2) that the Respondent's
ability to secure government contracts was depen-
dent upon the Union's winning the election; (3)
that the Union could "stop" the Respondent's
government contracts; or (4) that the Union could
and would cause the Respondent's government
contracts "to be stopped" either if the Union lost
the election or if the Respondent did not give the
Union the contract it wanted.
Upon this consideration of the evidence, I accept
the testimony and denials of the Union's represen-
tatives and reject the main thrust of the Respon-
dent's objection that the union representatives
made remarks to the employees even suggesting a
claim of government influence which the Union
would use to "stop" the government contracts if it
lost the election. Contrary to the Respondent's con-
tention, I find that the union representatives made
no such threat of reprisal against the employees if
they voted against the Union in the election, as
would have coerced the employees in their vote,
prevented a fair and free election, and required the
Regional Director to set the election aside.
There remains for consideration the evidence
given not only by employee Richard Robinson as
the Respondent's witness, but also by union
representatives Hughes and Collilieux, as to what
the two union representatives told the employees
the Union would do if, having won the election, it
was then unable to secure a contract with the
Respondent containing the favorable terms which
the Union said it wanted on behalf of the em-
ployees. Robinson testified (it will be recalled) that
the union representatives said that, if the Union
won the election but was unable to negotiate the
contract it wanted, the Union would "try to get the
government contracts stopped." Hughes testified
that he told the employees at the meeting on Au-
gust 26 that, in the event of a strike on bargaining
issues, the Union would ask the AFL-CIO to put
the Respondent on a "do not purchase list" or an
"unfair list." And Collilieux testified that, at an
earlier committee meeting with some of the em-
ployees on August 20 or 24 but not at the meeting
on August 26, he said that if the Respondent did
not bargain in good faith and there were a strike,
the Union "would go all out including appealing to
a procurement agency or some type of agency
requesting that the government take a second look
at their contracts." Upon this branch of the
evidence, the Respondent claims that the union
representative unfairly induced the employees to
vote for the Union in the election by holding out to
them the possibility of improper customer pressures
which they could expect the Union, if elected as
their representative, to exert on their behalf against
the Respondent.
But this sort or direct appeal by a union to the
customers of an employer to withhold business dur-
ing a strike or dispute with the employer over con-
tract terms covering employees whom the union
represents "is a traditional primary weapon aimed
at the public at large which represents a direct
thrust against the primary employer"7 and is per-
missible and lawful under the Act.8 Certainly, a
union in selling itself to employees as their prospec-
tive bargaining representative may properly
describe this type of available lawful tactic as one
which it might bring to bear upon their employer
for their benefit, when and if they have seen fit to
select the union as their bargaining representative
in an approaching Board election.
In the present case, this was the substance of the
remarks made by the Union's representatives to the
employees before the election, so far as they
touched at all upon the Union's possible tactics in
bargaining with the Respondent if the Union won
the election. It is immaterial that the government
was in fact the Respondent's principal customer
among those to whom the Union might lawfully
direct an appeal for support. For, as I have found
upon the testimony of the Union's representatives
and the employees other than Robinson, the
Union's representatives made no statement to the
employees that the Union had any special influence
with the government, that the Union's possible fu-
ture appeals for support during contract negotia-
tions with the Respondent would have any more ef-
fect upon the government as a customer than upon
District Council of Painters No 48 ( Hamilton Materials Inc ), 144 /bid See also N L R B v Servette, Inc , 377 U S 46
NLRB 1523, 1524,enfd 340 F 2d 107 (C A 9),cert denied 381 U S 914
427-835 0 - 74 - 23
342 DECISIONS OF NATIONAL
any other customer, nor that there would therefore
be any unfair, predictable, or automatic alignment
of governmental and union power against the
Respondent if the employees voted for the Union as
their statutory exclusive bargaining representative.
Accordingly, I conclude that the Union representa-
tives' preelection statements to the employees
about the available customer pressures which the
Union might bring to bear upon the Respondent in
the course of future contract negotiations should
the Union win the representation election, were
perfectly proper, and furnished no grounds for
setting the election aside.
Upon the foregoing findings of fact made upon
the evidence received by me in the supplemental
hearing on September 4, 1969, as directed by the
Board, and for the reasons stated by me in connec-
tion with these findings, I make the following:
SUPPLEMENTAL CONCLUSIONS OF LAW
1. The evidence does not support Objection I
which the Respondent filed to the election held on
LABOR RELATIONS BOARD
August 28, 1968, in Case 26-RC-3130, nor does it
therefore furnish any ground for setting the election
aside.
2. Pursuant to the results of the aforesaid elec-
tion, the Regional Director on October 11, 1968,
properly certified the Union to be, and the Union
has since been, the exclusive bargaining representa-
tive of all of the Respondent's employees in the
described appropriate unit for the purposes of col-
lective bargaining within the meaning of Section
9(a) of the Act
RECOMMENDED ORDER
Upon the foregoing findings of fact and supple-
mental conclusions of law, I recommend that the
Board now addopt the foregoing supplemental con-
clusions of law, in addition to confirming and
adopting the consistent original Conclusions of Law
and Recommendations made by Trial Examiner
Paul E Weil in the Decision issued by him on
February 14, 1969.