Associated Shoe Industries of Southeastern Massachusetts, Inc., et al.

National Labor Relations Board - Board Decisions

Jan 19, 1949

81 N.L.R.B. 224 (N.L.R.B. 1949)

In the Matter of ASSOCIATED SHOE INDUSTRIES OF SOUTHEASTERN
MASSACHUSETTS , INC., ET AL.,1 EMPLOYE RS and UNITED SHOE WORK-
ERS OF AMERICA , CIO, PETITIONER
In the Matter of ASSOCIATED SHOE INDUSTRIES OF SOUTHEASTERN
MASSACHUSETTS , INC., ET AL.,2 EMPLOYERS and UNITED SHOE WORK-
ERS OF AMERICA , CIO, PETITIONER
Cases Nos. 1-RC-539 through 1-RC-5344, 1-RC-536, 1-RC-537,
1-RC-538, 1-RC--44, 1-RC-135, and 1-RC-137, respectively.-
Decided January 19,1949
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed in the Shoe and the Cut-Sole
cases, consolidated hearings were held before a hearing officer of the
National Labor Relations Board. The hearing officer's rulings made
i There are 26 Employers involved in this proceeding , hereinafter referred to as the
Shoe case . The following 22 Employers are members of the Shoe Division of the Asso-
ciated Shoe Industries of Southeastern Massachusetts , Inc , herein called the Association,
said Employers being collectively referred to herein as the Shoe Division Members' Stacy
Adams Co.; Brockton Boot & Shoe Co. ; Commonwealth Shoe & Leather Co. ; Conrad Shoe
Co.; W. L . Douglas Shoe Co.; Doyle Shoe Co.; Chas. A. Eaton Co ; Field and Flint Co.;
John Foote Shoe Co. ; E. J . Givren Shoe Co. ; Howard & Foster, Inc . ; George E. Keith Co. ;
Knapp Bros . Shoe Mfg. Co.; Old Colony Shoe Co.; M. A . Packard Co ; Stone -Tarlow Co.,
Inc. ; Thompson Bros. Shoe Co.; E. T. Wright & Co , Inc. ; Berco Shoe Inc. (named in
No. 1-RC-530) ; Dartmouth Shoe Co. ( named in No . 1-RC-532 ) ; Lissak & Co . ( named in
No. 1-RC-533) ; and Radcliffe Shoes, Inc. (named in No . 1-RC-534). The last four named
companies became members of the Association subsequent to the filing of the petitions,
but were made parties to Case No. 1-RC-529 by amendment at the hearing.
The following 4 Employers , herein collectively called the Independents , are non -members
of the Association : Brockton-Maid Shoe Co., Inc. ( named in No . 1-RC-531 ) ; Sarra Sandler
Shoemakers ( named in No . 1-RC-536 ) ; Sportwelt Shoe Co., Inc. (named in No. 1-RC-
437) ; and The Victory Shoe Co. (named In No. 1--RC-538).
On February 2 and 3, 1949 , subsequent to the date of this Decision and Direction of
Elections , the Regional Director advised the Board of the following facts which required
modification of the Decision and Direction of Elections : ( 1) Radcliffe Shoes, Inc, has
been absorbed by Dartmouth Shoe Company ( 1-RC-532 ) and no longer exists as a separate
entity; ( 2) Conrad Shoe Co., named in 1-RC-529, and Condon Leather Co., named in
1-RC-554 ( see footnote 2, infra), have stipulated that they no longer have any employees.
These three Employers have therefore been omitted from the list of Employers among
whose employees elections are to be conducted.
2 There are 21 Employers involved in this proceeding,' hereinafter referred to as the
Vitt-Sole case. The following 20 Employers are members of the Cut - Sole Division of the
Association , said Employers being collectively referred to herein as the Cut -Sole Division
81 N. L. R. B., No. 38.
224
ASSOCIATED SHOE INDUSTRIES OF SOUTHEASTERN MASS., INC. 225
at the hearings are free from prejudicial error and are hereby af-
firmed.' The petitions in the two cases present similar questions of
the units appropriate for members and non-members of the Associa-
tion; therefore, the Board hereby consolidates these companion cases
for decision.4
Upon the entire record in these cases, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the National Labor Relations Act.
2. The following labor organizations claim to represent employees
of the Employers : The Petitioner, United Shoe Workers of America,
CIO; and two intervenors, Brotherhood of Shoe and Allied Crafts-
men (Independent), herein referred to as the Brotherhood, and Boot
Members : Acme Heel Co. ; Baxendale Cut Sole Co. ; Beauty Top Lift Co.; Al. H Berger &
Sons, Inc. ; Brockton Cut Sole Corp.; Capachione Bios & Co ; Condon Leather Co.; Eastern
Cut Sole Co , V. & E. W. Filoon Co ; Harry M. Fishman ; E. P. Fitzgibbons & Son ; Levin
Bros. Leather Co, Inc.; Mackedon Innersole Co., C. S. Pierce Co.; Randolph Leather Co. ;
Joseph Stone Cut Sole Co. , Tarlow Cut Sole Co. ; Hamilton Wade Co ; Wind Innersole
& Counter Co , and Winneg Bros (named in No. 1-RC-137). winneg Bros. joined the
Association subsequent to the hearing.
The following Employer is a non -member : Daly Bros. Shoe Co., Inc. ( named in No.
1-RC-135) .
3 The healing officer properly denied motions for the inspection and examination of
designations in both cases Matter of Stokely Foods, Inc., 78 N. L. R. B. 842. In the
Cut-Sole case, the healing officer properly allowed amendment of the petition to correct
an obvious error made in answering Sec. 12 ( b) of the petition . See footnote 5, infra.
4 Matter of General Motors Corp., et al , 79 N L. R B. 341 ; Matter of Bethlehem Trans-
portation Corporation , 65 N. L R. B. 605.
5 In both cases , the Association and the Brotherhood of Shoe and Allied Craftsmen, moved
to dismiss the petitions, on one or more of the following grounds : ( 1) want of jurisdiction
in the Board to direct an election in the absence of a sufficient showing of interest by
the Petitioner and the Boot and Shoe Workers, (2) want of jurisdiction in the Board
to direct an election in the absence of an allegation in the petition of refusal of recognition ,
(3) the pendency of other petitions relating to the same parties on the same subject at
the time of the filing of the instant petitions.
These motions are denied for the following reasons: ( 1) We have repeatedly held that
what constitutes a substantial showing of interest is solely a matter of administrative
procedure to be determined by the Board itself and is not subject to direct or collateral
attack. Matter of Amos Molded Plastics, Division of Amos Thompson Corp., 79 N. L. R. B.
201 ; Matter of Standard Printing Company , Inc., 80 N. L. It. B 74. Contrary to the
assertions of the movants , the legislative history of the amended Act supports this con-
clusion . See 80th Cong ., 1st Sess . Rept. No. 105 on S. 1126, p . 25, H Conf. Rept . No. 510
on H It. 3020, p 50. As to the intervenors, Matter of Jefferson Chemical Co., 79 N. L. It. B.
584, is distinguishable because in that case the would -be intervenor presented no proof of
interest , although requested to do so in ample time ;
(2) the Board recently reconsidered the Advance Pattern decision , on which the second
motion was grounded , and vacated the original decision . Matter of Advance Pattern
Company, 80 N. L. R. B. 29 ( on reconsideration) ;
(3) in the Cut - Sole case, appeals from the dismissals of individual petitions filed
against Cut-Sole Division Members were pending when the present petitions were filed.
The petitions had been dismissed on the ground that only an Association -wide unit was
appropriate . A petition filed during the pendency of another is tenable and not harassing
when it seeks a different unit. Matter of Rockforct Drop Forge Company, 73 N. L. R B. 26.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Shoe Workers Union, A. F. L. herein referred to as the Boot and
Shoe Workers.6a
3. Questions affecting commerce exist concerning the representa-
tion of employees of the Employers, within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act .6
4. The appropriate units :
A. The Shoe Case
All parties herein are in agreement that the unit or units, if any,
established by the Board should contain the following inclusions and
exclusions : all production employees, including shipping room em-
ployees, sweepers, and elevator operators, but excluding maintenance,
clerical, office, administrative and professional employees, firemen,
oilers, mechanics, salesmen , guards, watchmen, and supervisors as
defined in the Act. The categories which would thus be included and
excluded are those expressly or impliedly included or excluded by the
terms of past collective bargaining contracts between the Brotherhood
and the Shoe Division Members of the Association.
The only unit issue raised in this case relates to scope : whether
there should be a single area-wide unit or whether separate units
should be set up, one for the Shoe Division Members, and one each for
the Independents. The Petitioner contends that a single area-wide
multiple-employer unit consisting of the employees of the Shoe Di-
vision Members of the Association and the Independents, employ-
ers engaged in the leather industry within an area of 9 miles of
Brockton, Massachusetts, is appropriate. The remaining parties to
this proceeding, including the Shoe Division Members, the Associa-
tion, the Brotherhood, the Boot and Shoe Workers, and the Independ-
68 On February 2 and 3, 1949 , subsequent to the date of this Decision and Direction of
Elections , the Regional Director advised the Board that both the Petitioner and the
Brotherhood of Shoe and Allied Craftsmen have locals, whose membership includes em-
ployees of Employers within units therein found appropriate , which are not in compliance
with Section 9 (f), (g), and ( h) of the Act . See footnote 18, infra.
I In the Cut - Sole case , a contract between the Association and the Brotherhood is urged
in bar The first petition in that case was filed on July 12, 1948 . The interim contract
then in effect was due to terminate on August 1, 1948. A contract for the benefit of
members was executed on July 21 , 1948, after notice of the appeals on July 20, 1948,
but allegedly without notice of the filing. This contract does not bar a present determi-
nation of representatives for the following reasons : ( 1) The petition was timely filed
prior to the execution of the contract . Matter of Rankin Equipment Co., 79 N. L. It. B.
1439. The contention that the contracting parties must have actual knowledge of the
filing of the petition is without merit. Knowledge of the claim is material only when
the question of the effect of the contract depends upon the date of a claim rather than
upon the date of the filing of a petition . See Matter of Mississippi Lime Co., 71 N. L. It. B.
472, 474 ; ( 2) the contract is restricted in its benefits to members only. Matter of J. F.
Johnson Lumber Company, 73 N. L. It. B. 320; ( 3) the contract was prematurely executed
in relation to the expiration date of the interim contract . See Matter of Beattie Mfg. Co.,
77 N. L. It. B. 361 ; Matter of American Container Corp., 77 N. L. R. B. 732.
ASSOCIATED SHOE INDUSTRIES OF SOUTHEASTERN MASS., INC. 227
ents excluding Sportwelt Shoe Co., Inc., are in accord with the Peti-
tioner's contention.' In the event that the Board should determine
that the area-wide unit is inappropriate, the Petitioner and the
Brotherhood seek a single unit of the employees of all the Shoe Di-
vision Members based upon past bargaining history of the Associa-
tion, and separate units of the employees of each of the Independents.
Sportwelt is opposed to an area-wide unit, contending that a sep-
arate unit should be established for its employees.
The Association is a Massachusetts corporation having as its pur-
pose the unification of shoe and allied manufacturing companies in
the Brockton, Massachusetts, area. The Association consists of some
40 members, in two separate divisions : shoe manufacturers and cut-
sole manufacturers. Membership is open to any shoe or allied-trades
manufacturer within the region, upon application approved by the
directors. Members in the respective divisions are bound by labor
agreements executed in their behalf by the Association. The As-
sociation also acts as a clearing house for information and statistics
on prices, wages, working conditions, and negotiations for members
and non-members alike.
For at least 3 years," the Shoe Division of the Association has
maintained a negotiating committee, appointed by the Shoe Division
Members. During this period, the committee, acting on behalf of the
Shoe Division Members, has conducted joint negotiations and has en-
tered into collective bargaining contracts with the Brotherhood, in the
name of the Association and of the individual Shoe Division Members.
Prior to August 21, 1947, only piece rates and certain working condi-
tions were covered by written contracts. Oral contracts covered the
remaining igms. In all cases , the Shoe Division Members made the
same oral agreements as had been made by the Association negotiat-
ing committee. Since August 21, 1947, all of the substantive terms
of the collective bargaining agreement have been embodied in written
contracts.
During the years that the Association and the Brotherhood have
executed contracts, the Independents, as distinguished from the Shoe
Division Members who were represented by the negotiating committee,
have not participated in the negotiations of the Association; nor for
that matter does the record show that they have ever attempted to do
so. However , shortly after the agreements between the Association
and the Brotherhood were executed, the Independents individually met
'Although formerly opposed to this contention , the Brotherhood acquiesced therein in
a memorandum filed with the Board after the close of the hearing.
e Although the precise period of time is not established in the record, the record does
indicate that it has been a minimum of 3 years.
829595-50-vol 81-16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Brotherhood and at all times the Independents, with the ex-
ception of Victory Shoe Company which signed a written agreement,
orally contracted with the Brotherhood to apply the terms of the Asso-
ciation agreement to their respective employees. For the most part
it appears that the Independents made no attempt to vary the terms of
the contracts which had previously been negotiated between the com-
mittee and the Brotherhood.
All parties to this proceeding, who have taken a position on the
issue, maintain that the Shoe Division Members by their joint action
in regard to labor relations have engaged in true multiple-employer
collective bargaining and that their employees should properly be
grouped together in the same unit. We agree.
As noted above, all parties herein, with the exception of Sportwelt
Shoe Company, Inc., one of the Independents, take the further posi-
tion that the employees of the Independents should be included to-
gether with the employees of the Shoe Division Members in an
area-wide multiple-employer unit. In taking this position the par-
ties request that the Board overrule its decision in Matter of Advance
Tanning Company,° at least insofar as that decision is contrary to
their contention with regard to including the Independents. In that
case, upon pertinent facts almost identical to those in this case, the
Board ruled that a multiple-employer area-wide unit including em-
ployees of independent employers was inappropriate. Prominent
among the reasons given by the Board in reaching this conclusion was
the fact that the Independents had not bargained collectively on an
area-wide basis as there was "no evidence that the Independents par-
ticipated in the negotiations between the Association, acting on behalf
of the Members, and the [union]." 10 As part of the argument against
this reasoning of the Board, it is asserted that, in cases subsequently
decided,11 the Board has itself repudiated it. However, the cases
cited have no bearing on the issue as they do not involve independent
employers, but merely reaffirm the doctrine of earlier decisions of
the Board on association-wide multiple-employer units.12
Reduced to its simplest terms, the main argument here presented
against Advance Tanning is that, where an independent employer
customarily adopts as its own the collective bargaining contracts ne-
gotiated by an employer association, the employees of the independent
employer and those of members of the association should be included
0 60 N . L. R. B. 921 ( 1945).
to Id. at 931.
Matter of Richard Young Co., 64 N. L. R. B . 733; and Matter of Springfield Plywood
Corporation , 61 N. L. R. B. 1295.
12 Matter of Rayonler, Incorporated, 52 N. L. R. B. 1269; Matter of Dolese d Shepard
Company, 56 N. L. R. B . 532; and Matter of Advance Tanning Company, supra.
ASSOCIATED SHOE INDUSTRIES OF SOUTHEASTERN MASS., INC. 229
in the same unit. We have repeatedly rejected this argument because
in our opinion in these cases the employees of an independent em-
ployer may appropriately constitute a separate unit or be included
in a multiple-employer unit 13 Some evidence of true collective bar-
gaining on a multiple-employer basis by such an employer is there-
fore ordinarily necessary to warrant the inclusion of its employees
in the broader unit. Such evidence appears when the employer par-
ticipates personally with other employers in joint negotiations,14 or
when it delegates to a joint bargaining representative authority to
conduct negotiations on its behalf•15 Only by such participation does
an employer undertake the obligations and responsibilities of joint
bargaining, and only under such circumstances can it be said that its
employees have been bargained for jointly with the employees of
other employers upon a multiple-employer basis.
The majority opinion in no way implies, as intimated in the dissent,
that membership in an association is the controlling factor in determin-
ing the appropriateness of a multiple-employer unit. As stated above,
the essential element, in our opinion, for establishing a multiple-
employer unit is participation by a group of employers, whether mem-
bers or non-members of an association, either personally or through
an authorized representative, in joint bargaining negotiations 16
In the present case, the Independents have persistently remained
aloof from any participation in the group bargaining conducted by the
Association. Thus, by avoiding the responsibilities of group bargain-
ing and adopting an individual course of action which resulted in
separate negotiations with the Brotherhood, each of the Independents
herein has in practice treated its employees as a separate unit, and by
such conduct has demonstrated its desire to be bound by individual
rather than by group action. Although the Independents, with the
exception of Sportwelt, expressed a desire in this proceeding to have
See Matter of Springfield Plywood Corporation , 61 N. L. R. B. 1295, 1299-1300.
14 Cf. Matte, of Ward Baking Co., 78 N L R B 781
15 See Matter of Brewery Proprietors of Milwaukee , Wisconsin , 62 N. L . It. B. 163, 168;
Cf. Matter of California Metal Trades Association , 72 N L It. B 624, 632, where the Board
indicated that the power of a bargaining representative to bind employer association mem-
bers in negotiations is a necessary prerequisite to multiple-employer bargaining on an
association -wide basis despite the fact that there was a multiple -employer bargaining history.
We consider the language in the latter case as unnecessarily broad and not required for
purposes of the decision , as it appears from the record in that case that the only power
to bind was in fact no more than the authority to negotiate jointly on behalf of the associa-
tion members The Board 's criteria for association -wide bargaining are more accurately
reflected in Matter of Rayonier, Incorporated , supra. See 93 Cong. Rec . 4158 (April 25,
1947)
16 In stating what we consider to be the principles underlying the determination of
multiple-employer units , we do not infer , as the minority opinion would indicate, that
participation in joint negotiation would support the finding of an appropriate multiple-
employer unit where the employers involved subsequently signed significantly divergent
contracts
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their employees included within a multiple-employer unit, we find no
basis in the present record for departing from our established prin-
ciples applicable in such situations. Under the circumstances, as a
multiple-employer area-wide unit including the employees of the
Independents would be inappropriate, we believe that (1) the em-
ployees of the Shoe Division Members and (2) the employees of each
of the Independents constitute separate appropriate units 17
We find that all production employees of the Shoe Division Mem-
bers, including shipping room employees, sweepers, and elevator
operators, but excluding maintenance, clerical, office, administrative
and professional employees, firemen, oilers, mechanics, salesmen,
guards, watchmen, and supervisors as defined in the Act, constitute
a single unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
We further find that the production employees of each of the
Independents, including shipping room employees, sweepers, and ele-
vator operators, but excluding maintenance, clerical, office, adminis-
trative and professional employees, firemen, oilers, mechanics, sales-
men, guards, watchmen, and supervisors as defined in the Act,
constitute a separate unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
B. The Cut-Sole Case
Here, as in the Shoe case, there is no dispute as to unit composition,
the only unit issue being the scope thereof. Of the 21 Employers
involved in this case, only one, Daly Bros. Shoe Co., Inc., is an inde-
pendent Employer, the remainder being members of the Cut-Sole
Division of the Association. For years the Association has exe-
cuted collective bargaining contracts with the Brotherhood in behalf
of the Cut-Sole Division Members. After these contracts have been
executed, Daly Bros. has met with the Brotherhood and executed
contracts covering its own employees, identical with those executed by
the Brotherhood and the Association. The collective bargaining his-
tory in this case therefore parallels that of the Shoe case.
17 See Matter of Advance Tanning Company , 60 N. L It. B. 923, 931; Matter of Bercnt
Richards Packing Company, 64 N. L. R. B. 133, 13S ; Matter of California State Brewers
Institute , 72 N. L. R. B. 665, 674; cf . Matter of Brewery Proprietors of Milwaukee, Wis-
consin, 62 N. L. R. B. 163, 168.
Chairman Herzog joins in this decision primarily because of grave doubt as to whether,
in the light of the bargaining history here, the Board has authority to find that those
Employers not members of the Association can, together with Association members, con-
stitute a single "employer" within the meaning of Section 9 ( b) of the present statute
Were it not for these doubts, the Chairman would be disposed , on grounds of policy, to
join in the result reached by the dissenting Members of the Board.
ASSOCIATED SHOE INDUSTRIES OF SOUTHEASTERN MASS., INC. 231
All parties to this case contend that a single area-wide unit, co-
extensive with the employees of the Cut-Sole Division Members, plus
Daly Bros., is appropriate. For the reasons stated in the Shoe case,
we find no merit to this contention. Accordingly, we shall establish
two separate units, one for the employees of the Cut-Sole Division
Members and one for the employees of Daly Bros. Shoe Co., Inc.
We find that all production employees of the Cut-Sole Division
Members, excluding maintenance, office, clerical and professional em-
ployees, guards, and supervisors as defined in the Act, constitute a
single unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
We further find that all production employees of Daly Bros. Shoe
Co., Inc., excluding maintenance, office, clerical and professional em-
ployees, guards, and supervisors as defined in the Act, constitute a unit
appropriate for collective bargaining within the meaning of Section
9 (b) of the Act.
DIRECTION OF ELECTIONS 18
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Stacy Adams Co.; Brockton Boot
& Shoe Co.; Commonwealth Shoe & Leather Co.; W. L. Douglas Shoe
Co.; Doyle Shoe Co.; Chas. A. Eaton Co.; Field and Flint Co.; John
Foote Shoe Co.; E. J. Givren Shoe Co.; Howard & Foster, Inc.; George
E. Keith Co.; Knapp Bros. Shoe Mfg. Co., Old Colony Shoe Co.; M. A.
Packard Co.; Stone-Tarlow Co., Inc.; Thompson Bros. Shoe Co.; E. T.
Wright & to., Inc. ; Berco Shoe Inc.; Dartmouth Shoe Co.; Lissak &
Co. ; Brockton-Maid Shoe Co., Inc. ; Sarra Sandler Shoemakers ; Sport-
welt Shoe Co., Inc. ; The Victory Shoe Co.; Acme Heel Co.; Baxendale
Cut-Sole Co.; Beauty Top Lift Co.; M. H. Berger & Sons, Inc.; Brock-
ton Cut-Sole Corp.; Capachione Bros. & Co.; Eastern Cut-Sole Co.;
V. & E. W. Filoon Co.; Harry M. Fishman; E. P. Fitzgibbons & Son;
Levin Bros. Leather Co., Inc. ; Mackedon Innersole Co.; C. S. Pierce
Co.; Randolph Leather Co.; Joseph Stone Cut-Sole Co.; Tarlow Cut-
Sole Co., Hamilton Wade Co.; Wind Innersole & Counter Co.; Winneg
Bros.; and Daly Bros. Shoe Co., Inc., seven separate elections by secret
ballot shall be conducted as early as possible, but not later than 60 days
19 Any participant in any of the elections herein directed may, upon its prompt request to,
and approval thereof by, the Regional Director , have its name removed from any or all
ballots
On February 10, 1949, the Board Issued an Order Amending Decision and Direction of
Elections , ordering that "the participation of the United Shoe Workers of America, CIO,
Boot and Shoe Workers Union (A. F. of L ), and the Brotherhood of Shoe and Allied
Craftsmen ( Independent ) is conditioned upon the full compliance , within thirty (30) days
from the date of this Order, with Section 9 ( f), (g), and (h) of the Act by each of their
respective local unions which have members among the employees of any Employer within
any unit found appropriate in this Decision and Direction of Elections."
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date of this Direction, under the direction and supervision
of the Regional Director for the First Region, and subject to Sections
203.61 and 203.62 of National Labor Relations Board Rules and Regu-
lations-Series 5, as amended, among the employees in the voting
groups described above, who were employed during the pay-roll period
immediately preceding the date of this Direction of Elections, includ-
ing employees who did not work during said pay-roll period because
they were ill or on vacation or temporarily laid off, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, and also
excluding employees on strike who are not entitled to reinstatement, to
determine whether they desire to be represented by United Shoe Work-
ers of America, CIO, or by Brotherhood of Shoe & Allied Craftsmen
(Independent), or by Boot and Shoe Workers Union, A. F. L.,19 for the
purposes of collective bargaining, or by none.
MEMBERS HOUSTON and MURDOCK, dissenting :
We cannot join in the decision of the majority insofar as it denies the
request of all the parties to this proceeding, except the Sportwelt Shoe
Co., for an area-wide unit including the Independents. Careful ap-
praisal of the rationale in the Advance Tanning case, upon which the
majority relies, convinces us that, that decision should now be over-
ruled, insofar as it relates to the inclusion of independents with asso-
ciation members in an area-wide unit.
In our view, the majority, in re-affirming Advance Tanning, have
failed to analyze thoroughly the grounds on which that decision rests.
Such analysis is imperative, both for an understanding of the majority
decision and of our position. The "almost identical" facts which the
Board considered in Advance Tanning involved a closely integrated
area of a specialized part of the shoe industry in which, without being
obliged to do so, both members and non-members of an employers' as-
sociation had consistently made identical, albeit individual, collective
bargaining agreements. The association acted as a clearing house for
information for the entire area. An association committee negotiated
the basic agreement which both the members and the independents then
adopted. All the employers were willing to be included in an area-
wide unit. On the basis of these facts, the Board held that the associa-
tion members alone constituted an appropriate unit. Although the
union bargained with the members through a committee and "such
19 As the Boot and Shoe workers did not intervene in the Cut-Sole case , its name shall not
appear on the ballot in the two elections directed therein Moreover , inclusion of Boot and
Shoe workers on the ballot in the elections directed in the Shoe ease, and its participation
in the elections , although hereby directed , is made contingent upon its full compliance,
within 10 days from the date of this Decision and Direction of Elections, with the
provisions of Section 9 (h) of the Act
ASSOCIATED SHOE INDUSTRIES OF SOUTHEASTERN MASS., INC. 233
bargaining (lid not attain fruition until the execution of the contracts
between the individual Members" and the union, "this pattern of col-
lective bargaining resulting in individual but substantially identical
contracts" between the union and the members, "constituted collective
bargaining upon an association-wide basis." 20 However, notwith-
standing their substantially similar course of conduct, the Board ex-
cluded the independents, for the following reasons : 21
". . . We are not persuaded that the history-of collective bar-
gaining in the area compels a finding that the employees of the
Independents should be part of this bargaining unit. There is
no evidence that the Independents participated in the negotiations
between the Association, acting on behalf of the Members, and
the C. 1. 0. Without any semblance of bargaining, the Independ-
ents signed agreements identical to those executed by the Mem-
bers. This course of conduct cannot be considered as true col-
lective bargaining on an area-wide basis covering employees of
both the Members and the Independents, particularly since the
Independents were in no way obligated to follow- the Association
lead." [Emphasis supplied.]
As the majority recognizes , the emphasis in this reasoning is on the
absence of "participation" by the independents in the negotiations be-
tween the association and the union. It is this factor that provided
the foundation for the conclusion that the independents signed agree-
ments "without any semblance of bargaining ." What this reasoning
ignores, is that there was in fact no greater participation on the part
of the members in the negotiations preceding the execution of the con-
tract. Members, as well as the independents, signed contracts without
any semblance of individual bargaining. Indeed, the Board took this
to demonstrate that the members accepted the association committee
as their bargaining agent; it was further evidence of their desire to
be bound by group rather than individual action.22 The fact that the
independents did not undertake any individual "bargaining" would
appear likewise to be evidence that they, too, let the association com-
mittee do their bargaining, and thus demonstrated a desire to be bound
2" The quotations are taken from Matter of Richard Young Company , et al., 64 N. L R B.,
733, at 737 , in a discussion of the Advance Tanning case
21 60 N I. R B , at 931
22 60 N 1, R B at 930-931, citing in support Matter of Dolese ct Shepard Co . 56
N. L R B. 532, which depended upon Matter of Rayonier, Inc, 52 N L R B 1269, cited
supra note 15 It should be noted that in that case the Board decided that members
need not delegate authority to an association and that "customary adherence to uniform
labor agreements . . . demonstrated their desire to be bound by group rather than by
individual action. " Id. at 1275 . Particular attention should also be addressed to p. 1274,
footnote 10, which shows that the participation in negotiation in that case was much
less important to the decision than the act of abiding by the agreement.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by group action. Similarly, members, as well as the independents,
were "in no way obligated to follow" the lead of the association com-
mittee. This fact the Board ignored. It is thus apparent that the
Advance Tanning decision, by treating association members differently
from non-members, despite the fact that for all practical purposes
there was no difference in the degree to which they "participated" in
negotiations, with the association, makes members/tip in the association
the controlling factor in determining the appropriateness of a multi-
ple-employer unit in a case, such as the instant one, which involves
both association members and independents. Yet in cases in which
there was no association in the picture, we have frequently held that
the existence of an employers association is unnecessary to the finding
of a multi-employer unit.23 The anomalous result in Advance Tanning
is so logically inconsistent and unrealistic, that we would overrule that
decision for those reasons alone.
But there are other persuasive considerations. The main argument
the majority present in support of Advance Tanning is that employers
must participate, either personally or figurately, in negotiations before
there is sufficient evidence of their desire to be bound by group action
for the Board to decide that a multiple-employer unit is appropriate.
If the employers' desire to be bound by group action must be evidenced,
it seems to us that the execution of identical contracts is much more
persuasive than any mere participation in preliminary negotiations.
We had not before this moment thought that the Board could doubt
that "the contract or agreement is part of and the culmination of the
successful negotiations, and not a segment separate from the negotia-
tions which have preceded it." 24 The implication of the majority
opinion is that they might deem appropriate a multiple-employer
unit in which the employers jointly participated in negotiations but
signed significantly divergent contracts. This, the Board has yet to
do.25 It is quite true that we have emphasized participation in nego-
tiations, when that fact was present28 We have not, however, in-
23 Matter of Stevens Coal Co., 19 N. L R B 98; Matter of John Kausel, 28 N. L. R. B
906, 909 ; Matter of Dolese & Shepard Co , 56 N. L. R. B. 532 ; Matter of Ward Baking Co.,
78 N. L R. B. 781 , and cases cited therein
24 Matter of Louisville Refining Co ., 4 N. L. R. B. 844, 860, enf'd 102 F (2d) 678, cert.
den. 308 U. S . 568 ; the contract is the "final step in the bargaining process." H . J. Heinz
Co. v. N. L. R. B., 311 U. S. 514, 524.
25 See Matter of Drewrys Limited U. S. A., Inc, 44 N. L. R B. at 1124.
ze Particularly when we have found appropriate a unit of unassociated employers.
Matter of Ward Baking Co , 78 N. L. R B . 781 ; Matter of Dolese if Shepard Co., 50
N. L. R B. 332, 539 , Matter of John Kausel , 28 N. L It. B. 906, 909.
ASSOCIATED SHOE INDUSTRIES OF SOUTHEASTERN MASS., INC. 235
sisted upon common negotiation when other factors impelled finding
a multiple-employer unit appropriate.27
The majority does not question the power of the Board to include
association members and non-members in an area -wide unit.28 As we
understand their position, it is that the Board has entire discretion
to decide that unit of employees which will "assure to the employees
the fullest freedom in exercising the rights guaranteed" by the Act .29
In our opinion, every factor here present impels the exercise of that
discretion to find appropriate the area-wide units here requested : the
past history of group rather than independent action,30 as evidenced
by the manner in which uniformity of contracts has been achieved;
the stabilizing effect which this very group action has had upon labor
relations within the Brockton area which had earlier known intense
labor conflict; 31 the frequent interchange of laborers among all em-
ployers without regard to their association affiliation,32 the similarity
of the wages, hours, and duties of the employees; 33 and the agreement
among the employers and the unions on the desirability of the area-
27 See Matter of Shipowners ' Association of the Pacific Coast, et at ., 7 N. L. R. B. 1002,
1022, 1024, 1017; Matter of Richard Young Company , et at., 64 N. L R. B 733, 736;
Matter of Waterfront Employers Association of the Pacific Coast , 71 N. L R. B 80, 105,
113 It is true that the preceding cases involve association members, although the first
and third cases involved employers who were not members of the same association as other
employers with whom they were combined . This is also true of cases in which we have
found a multiple-employer unit in the absence of any formal employer association Matter
of Stevens Coal Co. , 19 N. L. R. B. 98, 109-110. In that case, the Board relied upon the
acceptance of the contract by the non-participating employer.
23 With respect to the Chairman' s views ( majority decision footnote 17), we do not
believe that the Board ' s power, in deciding what multi -employer unit is appropriate, is
restricted to instances in which we are able to find that the group of employers in question
constitute a single "employer" within the meaning of Section 2 (2) of the Act. Although
Section 9 (b) of the Act refers to an "employer unit," a well-established canon of statutory
construction commands that words importing the singular include the plural , U S. C. A.,
Title 1, Sec. 1, readopted July 30, 1947, c. 388 , Sec 1, 60 Stat 633 Neither the legis-
lative history of the Wagner Act nor of the Taft-Haitley Act evidences a congressional
intent to restrict the Board 's authority to the finding of a "single employer ." See S. Rep.
No. 573, 74th Cong 1st Sess , p. 6; 79 Cong Rec. 9728; S Rep. No . 105 on S. 1126, p. 35 ;
93 Cong . Rec. 4151. Moreover, both H R 3020, Sec 9 ( f) (1), and S 1126, Sec 2 (2),
which contained provisions restricting determinations of multi-employer units , failed so
to restrict the Board . In any event , in the light of existing Board decisions on multiple-
employer units , we think it is rather late in the day to be concerned with the doubts
raised by the Chairman as to an issue not squarely presented in this case.
11 Sec . 9 (b) of the Act.
ii For recent cases emphasizing the length of the history of group action , see Matter
of Pacific American Shipowners Association , 80 N. L R. B 622, and Matter of Norcal
Packing Co , 76 N L R B 254
81 Stabilizing effect emphasized in Matter of Stevens Coal Company , 19 N. L. R B 98;
Matter of Springfield Plywood Corp , et al., 61 N. L. R B. 1295, 1299 , and cases cited
therein. See also the statement of Senator Lodge , of Massachusetts , on the effect of
area -wide bargaining in the shoe industry . 93 Cong. Rec. 4570. ( May 2, 1947).
33 Matter of Shipowners' Association of the Pacific Coast, et at ., 7 N. L R B. 1002 ;
Matter of Waterfront Employers Association of the Pacific Coast, 71 N. L. R. B. 80;
Matter of Pacific American Shipowners Association , supra.
33 Ibid.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wide unit.34 Under all these circumstances, there exists a strong com-
munity of interest among the employees of all of the employers in-
volved in this proceeding which warrants their being represented for
collective bargaining in a single unit. To separate certain of the
employers on the basis of non-membership in the association or par-
ticipation in all phases of negotiations is to make distinctions that
are based on no real differences.
Furthermore, we would include Sportwelt Shoe Company, Inc., the
sole employer who does not wish to be included in the area-wide
unit. Sportwelt has allowed its labor policies to be formulated, regu-
lated, and substantially controlled by the Association, rather than
by its own independent action. Sport welt has yet to deviate front the
area-wide uniform contracts, and indicates no intent to do so in the
future. Sportwelt merely opposes its inclusion in a multiple-employer
unit. To hold that employer opposition precludes the Board from
finding a multiple-employer unit to be appropriate is to permit em-
ployers to shape the bargaining unit at will, notwithstanding the
presence of compelling factors, including their own past conduct,
decisively negating the position they have taken. Contrary to the
mandate given the Board under the Act, such a holding would in effect
vest in the employers rather than the Board the power to determine
the appropriate unit for collective bargaining purposes. We have
refused so to divest ourselves.3' Nor should Sportwelt's non-menlber-
ship in the Association give any added weight to its desire to be ex-
cluded from the area-wide unit.36 We agree that an employer who
34 Matter of Brewery Proprietors of Milwaukee, Wis , 62 N. L . R. B. 163, 168,
n See Matter of Pacific American Shipowners Association,, 80 N. L. R B 622 ; Matter
of Martenolich Shipbuilding Co., 73 N. L. R B . 1304, 1309 and cases cited therein ; Matter
of Waterfront Employers Association , 71 N. L R. B. 80 ; Matter of National Dress Manu-
facturers Association , Inc., 28 N . L. R. B 386 ; Matter of Associated Banning Co., 19
N. L. R B. 140 ; and Matter of Shipowners Association of the Pacific Coast, et at., 7
N L. R. B. 1002.
3' The mere fact that the employers desire a multiple -employer unit is insufficient to
make that the appropriate unit Matter of RKO Radio Pictures , Inc., 40 N L R B.
1185 . The desire of a member of an association to be excluded from an association-wide
unit, otherwise appropriate , has not been controlling and we have included members
who merely desired to be excluded. Matter of Associated Banning Co , supra; Matter
of National Dress Manufacturers Association, supra ; Matter of Martenolich Shipbuilding
Co , supra , and cases cited therein
The Board has excluded members fi om an otherwise appropriate association -n ide unit
on the ground that they intended to pursue an individualistic course of action , but has
required from them something more than a mere statement of desire , for example, dis-
regard of the association contract ( Matter of Jointer Berg & Puget Sound District
Council, 59 N I. R B . 685, 688-9; Matter of Great Bear Logging Co ., 59 N L. R. B.
701, 704. Matter of James Hanley , 79 N L. R B . 929 , but see Matter of Eastern Sugar
Associates , SO N. L R B. 73 ) or express refusal to let the association represent them
(Matter of Schmieq Industries , 62 N. L. R. B. 1474 ). Although the Board has consistently
excluded independents merely because they have asserted an unwillingness to be included
(Matter of George F Carleton it Co , 54 N. L. R. B . 222; Matter of Hummel Furniture Co.,
72 N L. R . B 301 ), we see no reason for such distinction . Such disparity of treatment
merely perpetuates the error which the majority are today repeating by making member-
ship in an association the controlling consideration.
ASSOCIATED SHOE INDUSTRIES OF SOUTHEASTERN MASS., INC. 237
actually manifests "an intent to pursue an individualistic course of
action" should be excluded from an otherwise appropriate unit, when
including him would be futile. Such intent, however, ought to be
manifested by an actual independence of labor policy and not by
mere non-membership in an association, or by a bare desire to be ex-
cluded from an otherwise appropriate unit.