Bata Shoe Co., Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1966

157 N.L.R.B. 1 (N.L.R.B. 1966)

Bata Shoe Company, Inc. and United Shoe Workers of America,
AFL-CIO. Case No. 5-CA-3293. February 18, 1966
DECISION AND ORDER
On December 3, 1965, Trial Examiner David S. Davidson issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the brief, and the entire rec-
ord in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed September 21, 1965, by United Shoe Workers of America,
AFL-CIO, herein called the Union, the General Counsel issued a complaint against
Bata Shoe Company, Inc., herein called the Respondent. The complaint alleges that
Respondent violated Section 8(a)(5) and (1) of the Act. Respondent's answer
denies the commission of any unfair labor practices.
This proceeding, with all parties represented, was heard before Trial Examiner
David S. Davidson in Baltimore, Maryland, on November 4 and 5, 1965. At the
close of the hearing, oral argument was heard from counsel for the Union, and the
parties were given leave to file briefs. A brief was received from Respondent.'
'Following the close of the hearing Respondent filed a motion to amend answer and a
motion to correct record . The motion to amend answer does not seek to change the
allegations of the answer as amended at the hearing but seeks to expand upon the purpose
of paragraph 6 of the answer as stated at the hearing . In my view the purpose stated
in Respondent's motion appeared rather clearly from the other affirmative defenses
pleaded by Respondent and its statement of position at the hearing. As there is no
cause to amend the answer, the motion is denied . As the corrections requested in the
motion to correct record appear to be warranted, that motion will be granted The mo-
tion to amend answer and the motion to correct record have been designated Trial
Examiner's Exhibits Nos. 3 and 4, respectively, and received in evidence
157 NLRB No. 11. 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a New York corporation, is engaged in Belcamp, Maryland, and vi-
cinity in the production and distribution of footwear. In the course and conduct of
its business operations, during a representative 12-month period, Respondent sold
and shipped products valued in excess of $50,000 directly to points outside the State
of Maryland and purchased materials valued in excess of $50,000 directly from points
outside the State of Maryland. Respondent concedes, and I find, that Respondent is
engaged in commerce within the meaning of the Act and that assertion of jurisdiction
is warranted.
II. THE LABOR ORGANIZATION INVOLVED
United Shoe Workers of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The issue in this case is whether Respondent violated Section 8(a)(5) by refusing
to bargain with the Union following a representation election and certification of the
Union by the Board as representative of Respondent's production and maintenance
employees. There is no question that Respondent has not bargained with the Union,
but Respondent raises certain affirmative defenses in which it attacks the validity of
the election and the Board's postelection proceedings to justify its refusal to bargain.
On March 9, 1965, following the filing of a representation petition by the Union
in Case No. 5-RC-5029 the Respondent and the Union entered into a stipulation for
certification upon consent election which was approved by the Regional Director for
Region 5. In it they agreed to the conduct of an election on April 23, 1965, in the
following unit which they agreed, the Board subsequently found, and I find, is appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act:
All of the Employer's production and maintenance employees at its Belcamp, Mary-
land, plants, including design department employees, laboratory employees, manip-
ulators, building department employees, construction workers, hotel employees, in-
cluding theatre ticket sellers and stockroom and shipping employees at the Employer's
Belcamp, Edgewood, and Baltimore, Maryland, plants, and plant clericals; but ex-
cluding guards, office clerical employees, professional employees, and supervisors as
defined in the Act.
On April 23, 1965, the election was held and a majority of the employees casting
valid ballots in the election voted for the Union to represent them for purposes of
collective bargaining. Thereafter, Respondent timely filed objections to conduct
affecting the election and the conduct of the election. The Regional Director inves-
tigated the objections and on July 2, 1965, issued his report on objections in which he
set forth his findings based on evidence submitted by both parties and otherwise
developed in the investigation. He concluded that the objections were without merit
and recommended that they be overruled and the Union certified. Respondent filed
timely exceptions to the Regional Director's report on objections which were con-
sidered by the Board, and on August 25, 1965, the Board issued its Decision and
Certification of Representative in which it adopted the Regional Director's recom-
mendations for the reasons set forth in his report and certified the Union as the
representative of the employees in the unit set forth above.
On August 27 and September 14, 1965, the Union by letter requested Respondent
to bargain with it for purposes of negotiating a collective-bargaining agreement cov-
ering the production and maintenance employees.
On September 17, 1965, Respondent by letter refused to bargain collectively with
the Union as the representative of these employees until the Federal courts have
reviewed the Union's certification.
In its answer to the complaint herein, as amended at the hearing, Respondent
alleges as affirmative defenses that: (1) the Union by fraud, deception, misrepresen-
tation, and other acts and conduct restrained and coerced the employees in the
exercise of their rights to a free election; (2) the election was conducted in an atmos-
phere of confusion in which otherwise eligible employees were denied the oppor-
tunity to vote and was not conducted pursuant to the terms and conditions of the
stipulation for certification upon consent election; (3) Respondent was denied its
BATA SHOE COMPANY, INC. 3
right to a hearing on substantial and material issues of fact and law raised by its
objections to conduct affecting the results of the election and its exceptions to the
report on objections in Case No. 5-RC-5029; (4) the findings and conclusions with
respect to its objections were prejudicial to the rights of Respondent because based
on documents which were not made available to Respondent thereby denying it the
right to respond thereto or to inquire as to their authenticity, relevance, materiality,
or competence and upon statements of witnesses of which Respondent was not made
aware denying it the right to respond thereto and to cross-examine; (5) the certifi-
cation of representative is of no force or effect for the reasons advanced in the first
four affirmative defenses; and (6) the certification is invalid.
On November 2, 1965, 2 days before the hearing herein Respondent filed with
the Board a motion for reconsideration in the representation case. As stated therein,
the motion was based upon the fact that Respondent's attorneys were advised on the
previous day by counsel for the General Counsel that he would not object to the
litigation by Respondent at the unfair labor practice hearing "of issues raised by the
Employer in its objections and exceptions previously filed in Case No. 5-RC-5029,
or, in short, would litigate the validity of the Certification of Representative issued
by the Board in this matter ." In its motion, Respondent requested further hearing in
the representation case and indefinite postponement of the unfair labor practice case.
On November 3, 1965, the Board by telegraphic order denied the motion "with leave
to the Employer to request the Trial Examiner to permit the issues raised in Em-
ployer's objections and exceptions filed in 5-RC-5029 to be heard in Case No. 5-CA-
3293." In its order, the Board rejected Respondent's contention that it would be
prejudiced by being required to present its evidence in an unfair labor practice pro-
ceeding rather than in the representation proceeding.
I consider first Respondent's third affirmative defense as its disposition bears upon
the remaining defenses . In that defense , Respondent contends that it was denied a
hearing with respect to its objections and exceptions to the Regional Director's report
on objections . At the outset of Respondent's case, at my request , Respondent stated
a number of factual issues with respect to which it intended to introduce evidence
at the hearing. A few of these issues related to the objections to conduct affecting
the election, and the remainder related to the conduct of the election. During
Respondent's statement, counsel stated that in presenting his case he did not wish to
be limited solely to those matters mentioned in his opening statement. During the
statement, I indicated my view that only substantial and material issues of fact raised
by the exceptions to the Regional Director's report on objections would be appropriate
matters for hearing in this proceeding, but expressly stated that this view was not to
be taken as foreclosing Respondent from offering any evidence it desired through
witnesses later in the proceeding . I urged Respondent to offer any evidence which
it believed I should have. At the conclusion of Respondent 's opening statement the
hearing recessed at 3: 10 p in. on November 4 until 10 a.m. the following day, as
Respondent did not have witnesses available in the hearing room to go forward with
its proof at that time.
On the second day of the hearing Respondent presented the testimony of a single
witness to describe the agreements between Respondent and the Union relating to
the number of observers at the election discussed below in connection with Respond-
ent's second and last defenses . At the conclusion of her testimony , Respondent rested
without offering any further evidence.2
In the light of the above , I conclude that Respondent 's contention that it was
denied a hearing with respect to issues of fact and law raised by its objections and its
exceptions to the report on objections is without merit. To the extent that Respond-
ent is entitled to a hearing , it is entitled to it "at some stage of the proceedings so
that it may produce the evidence upon which it relies for consideration by the Board
and for consideration by [the court of appeals ] in proceedings to enforce or set
aside the Board's order." N.L.R.B. v. Poinselt Lumber and Manufacturing Com-
pany, 221 F. 2d 121, 123 (C A. 4). Here the opportunity to be heard was afforded
Respondent at the unfair labor practice hearing, and despite a detailed statement of
the factual issues which it intended to develop through witnesses, it submitted only
the limited evidence described above. In the light of these circumstances and the
findings below with respect to the limited factual matters raised by Respondent in
this proceeding, one may reasonably conclude that there were no substantial and
material issues as to which a hearing was required at any stage of the representation
proceeding or this unfair labor practice proceeding. But in any event, any defect
2 Two stipulations , discussed below , were also entered with respect to factual matters
which Respondent contends are material to its objections.
221-374-66-vol. 157-2
4 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which may have existed in the representation proceeding as a consequence of the
failure to hold a hearing therein was adequately cured when the opportunity was
given Respondent to have the hearing it desired in this proceeding 3
In its brief Respondent seeks to excuse its failure to come forward with evidence at
the hearing on the ground that I had no authority to act with respect to the certifi-
cation in this case and presentation of evidence would have been futile .4 Nothing
which occurred in this proceeding or in prior decisions of the Board warrants the
conclusion that evidence otherwise requiring reconsideration of the Board's decision
certifying the Union would have been unavailing to Respondent if introduced in this
case. See Belber Manufacturing Corporation, 146 NLRB 358. Respondent's con-
tention exalts form over substance and would make undue delay the consequence of
due process whenever it might be determined after certification that a hearing on
objections should have been held. In any event, I assured the parties I would make
findings of fact with respect to any evidence which I received. Assuming arguendo
that I lacked authority to set aside or refuse to enforce the certification on the basis
of such findings even if otherwise warranted, the Board suffers from no similar
infirmity. Accordingly, I find Respondent's third defense without merit. .
Respondent's fourth defense also generally attacks the Board's action in the repre-
sentation case and is somewhat related to the defense rejected above. Respondent
contends that the Regional Director relied on documents and statements of which
Respondent was not aware and which were not available to it thereby denying it the
right to respond, to test authenticity, relevance, materiality, and competence, and to
cross-examine. At the hearing Respondent did not seek the production of any evi-
dence or witnesses by the General Counsel or offer any other evidence in pursuit of
this defense, apparently content to rest on the alleged defect in the Regional Direc-
tor's investigation to support its position. However, this defense assumes that Re-
spondent was entitled to a hearing or at the very least disclosure of the Regional
Director's evidence as a matter of right in the representation case even in the absence
of substantial and material issues of fact raised by it. Respondent misconstrues the
nature of postelection proceedings. The investigation of objections is a part of the
representation proceeding and is not subject to the requirements of the Administra-
tive Procedures Act. "The burden is not on the Board to show that the election was
fairly conducted but on respondent to show that it was not." N.L.R.B. v. 0. K. Van
Storage, Inc., 297 F. 2d 74, 75 (C.A. 5); N.L.R.B. v. Mattison Machine Works, 365
U S. 123. To be sure, if Respondent raised substantial and material issues requiring
a hearing and offered evidence at the hearing to controvert findings in the Regional
Director's report, it would then be necessary to prove the documents and adduce the
testimony of the witnesses on which the General Counsel relied, subject to usual
hearing rules and procedures, before the General Counsel's evidence could be relied
upon to overcome the Respondent's evidence. But until the Respondent has gone
forward to meet his burden, it has no right to require the production of the Regional
Director's evidence. Accordingly, I conclude that Respondent's fourth defense is
without merit.
By its first defense, with one exception, Respondent seeks merely to reargue con-
tentions in support of its objections to conduct affecting the results of the election
which were rejected by the Regional Director and the Board. The exception arises
in the case of one of the objections with respect to which by stipulation two facts
were introduced which were not reflected in the Regional Director's report on objec-
tions. The added facts are that Respondent has no contracts with the Union in New
York and has no production employees in New York.5 These facts were offered in
connection with Respondent's contention that a leaflet distributed the day before the
election misrepresented to employees hospital, pension, health, and wage benefits
negotiated by the Union in the New York area. The Regional Director after careful
analysis and consideration of evidence submitted to him by both sides during his
3 As noted above, in denying Respondent's motion for reconsideration in the representa-
tion case the Board rejected Respondent's contention that it would be prejudiced by being
required to present its evidence in the unfair labor practice proceeding rather than in
the representation proceeding. See also N L.B.B. v. Posnsett Lumber and Manufacturing
Company, supra; Belber Manufacturing Corporation, 146 NLRB 358, 359, footnote 2.
* Respondent was not entirely consistent in this respect. As already noted, it stipulated
as to two matters relating to the objections In at least one case, it is impossible to ex-
plain the stipulation as relating to newly discovered or previously unavailable evidence
and coming within the exception to the rule on which Respondent relies to justify its
failure to go forward with proof in this case.
5 The stipulation of the first of these facts was proposed by Respondent and the second
by the Union in response to Respondent's request for the stipulation.
BATA SHOE COMPANY, INC.
investigation of the objections, concluded that there was no material misrepresentation
of facts in the leaflet which would warrant setting aside the election. Except for the
additional facts stipulated at the hearing, Respondent has not taken issue with any
of the facts found by the Regional Director in his report on objections but only dis-
putes the conclusions drawn by him and the Board therefrom. The Regional Director
made no findings with respect to the subject matter of the stipulation. In its excep-
tions to the Regional Director's report Respondent asserted that it had no contracts
with the Union in New York and contended that the leaflets sought to mislead the
employees into believing that Respondent had contracts with the Union in New York
containing the benefits described in the leaflet.
The leaflet, which is attached to the Regional Director's report as Appendix 3,
states, insofar as material in connection with the stipulated additional evidence,
In your New York union contracts which your Attorneys Seligman and Selig-
man participated for some of the shoe companies, the following benefits are in
effect: [Emphasis supplied.]
Respondent contends that because the leaflet was in the form of an open letter to
Respondent President Dolezal, the quoted portion misrepresented to employees that
Respondent had contracts with the Union in New York. I am inclined to believe
that in rejecting this contention, which was made in Respondent's exceptions to the
report on objections, the Board assumed the truth of the facts alleged therein but
found that they warranted no alteration in the conclusions of the Regional Director
and no special comment. In any event, I note that the usage of the word "your"
is ambiguous throughout the leaflet in question , at times seeming to refer to the em-
ployees and at times the employer. Any ambiguity in the quoted paragraph was
dispelled by the phrase "some of the shoe companies" which made clear that the
reference was not to New York contracts with Respondent.6 Moreover, the com-
parison made in the leaflet is between "Union Benefits" and "Bata." Apart from the
quoted portion above, there is nothing else in the leaflet to suggest that the "Union
Benefits" apply to any employees of Bata. Under all these circumstances, I conclude
that the reference to "your union contracts," which the additional evidence offered
herein was intended to illuminate, is at worst "inartistically or vaguely worded and
subject to different interpretations," and will not suffice to establish a misrepresenta-
tion as to the existence of union contracts applicable to Bata employees in New York
such as would lead the Board to set an election aside. Hollywood Ceramics Com-
pany, Inc., 140 NLRB 221, 224. In these circumstances, I conclude that the above
facts to which the parties stipulated at the hearing and which were omitted from the
Regional Director's report on objections, were not substantial or material and pro-
vide no cause for me to reconsider further the Regional Director's findings and
conclusions with respect to the objections to conduct affecting the results of the
election which were affirmed by the Board and which I find are binding upon me,
certainly in the absence of any other evidence.
In this connection, at the hearing the Union expressed the view that the issue in
this proceeding is not whether the Regional Director and the Board were right in
certifying the Union but whether the objections filed by Respondent had merit.
Accordingly, the Union contends that when Respondent sought and was permitted to
litigate the objections herein, this proceeding became a de novo hearing on the objec-
tions. In the Union's view in order to sustain any objection, Respondent was re-
quired to produce all the evidence necessary to support it and could not rely on the
Regional Director's findings as the source of most of the facts, while picking and
choosing certain facts to controvert or amplify in this proceeding. Under this view,
the Union contends that when Respondent failed to adduce any facts other than the
stipulation in the hearing before me, it failed to sustain the objections to conduct
affecting the election, and the objections should be rejected on their merits without
regard to the previous findings of the Regional Director and the Board.
In my view, the initial question before me was whether Respondent has offered
me sufficient evidence to cause me to conclude that the Regional Director and the
Board acted on erroneous or incomplete material findings, and the question of the
merit of the objections is before me only to the extent that the evidence offered by
Respondent requires reconsideration of the findings and conclusions in the represen-
tation case. Although the same conclusion is reached under either view in this
proceeding, the question is of importance to the administration of the Act in any
case in which parties attacking a certification are given latitude to offer evidence to a
6 In addition, the fact that Respondent had no production employees in New York
is not a fact within the peculiar knowledge of the Union which employees would be un-
likely to know.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner . It may well be true that once evidence bearing on substantial and
material issues of fact has been introduced at the hearing , even under the more lim-
ited view which I have taken , other parties may feel it necessary in some cases to
develop a full record before the Trial Examiner of all the evidence bearing on the
contested objection or objections so that all the evidence may be properly evaluated.
But undoubtedly in many cases the uncontroverted findings of the Regional Director
in his report on objections will be sufficient against which to cQnsider the evidence
adduced at the hearing and need not be reproved in what might otherwise become
protracted hearings . The Union 's view would expand the scope of such hearings and
additionally would require me to consider de novo all the evidence , even when he
concluded that the facts established before him were not different in any material
respect from those found by the Regional Director and the Board . As Judge Hutch-
eson stated in N.L.R.B. v. O . K. Van Storage , Inc., 297 F. 2d 74, 76 (C.A. 5):
Nowhere in the Act is there a specific requirement that the Board conduct post-
election hearings on objections to the conduct of elections ; rather it is implicit
in the Act that questions preliminary to the establishment of the bargaining
relationship be expeditiously resolved, with litigous questions reserved for the
proceedings to review or enforcement of Board orders. The Board nonethe-
less makes it a practice to hold post-election hearings on objections to elections,
but in keeping with the spirit of the Act does so only when it appears that the
allegations relied on to overturn the election have a basis in law and that there
is evidence to support them. The opportunity for protracted delay of certifi-
cation of the results of representation elections which would exist in the absence
of reasonable conditions to the allowance of a hearing on objections is apparent.
An objecting party who fails to satisfy such conditions has no cause for com-
plaint when and if his demand for a hearing is denied.
Here although certification of representatives has occurred, bargaining has not,
and the adoption of the Union 's view would create similar opportunity for protracted
delay in a bargaining order. Indeed, while the latitude allowed Respondent in this
case in opening up the proceeding to permit the introduction of evidence bearing
upon the objections other than newly discovered or previously unavailable evidence
may go beyond the Board 's previous interpretation of Pittsburgh Plate Glass Com-
pany v. N.L.R .B., 313 U .S. 146 ,7 the Union 's view would require total abandonment
of its application to refusal -to-bargain proceedings testing the disposition of objections
to elections . No authority has been cited to me to support so drastic a change in
established policy. As the Supreme Court held in Pittsburgh Plate Glass Company
v. N.L.R.B., 313 U.S. 146 , 158, "The unit proceeding and this complaint on unfair
labor practices are really one." Accordingly, absent evidence to persuade me that
the prior action of the Board overruling the objections to conduct affecting the
results of the election was based on materially erroneous or inadequate facts, and
without further considering the merits of these objections , I reject Respondent's
first defense.
Respondent's second defense, as amended at the hearing, consists of two parts. As
originally stated in its answer , in this defense , Respondent asserted that the election
was conducted in an atmosphere of confusion in which eligible employees were
denied an opportunity to vote . By amendment at the hearing Respondent further
alleged as part of its second defense that the election was not conducted pursuant to
the express terms and conditions of the stipulation for certification upon consent
election . The only evidence which Respondent sought to introduce with respect to
the second defense related to an agreement entered into between the Union and
Respondent at the time the parties entered into the stipulation for certification upon
consent election . That agreement provided:
It is hereby agreed by the undersigned parties that at the Bata Shoe Company
representation election to be held on Friday, April 23, 1965 each party shall be
represented by no more than three observers , during the time scheduled for
polling, at the polling place. There shall be no alternates unless an emergency
situation should require the use of one or more alternates . It is understood
that there shall be an equal number of observers for each party at all times.
This agreement amplified paragraph 4 of the form stipulation for certification upon
consent election which provides:
Observers-Each party hereto will be allowed to station an equal number of
authorized observers , selected from among the nonsupervisory employees of the
7 But see Belber Manufacturing Corporation , 146 NLRB 358.
BATA SHOE COMPANY, INC. 7
Employer, at the polling places during the election to assist in its conduct, to
challenge the eligibility of voters, and to verify the tally.
According to the testimony of Respondent's attorney, the separate agreement was
executed on March 9, 1965, when the stipulation for certification upon consent elec-
tion was entered into. At the time, Respondent sought a specific limitation upon the
number of observers at the election because of what it considered serious problems
arising from the presence of unauthorized observers in the polling area at a previous
election. Respondent insisted upon a written agreement to that effect as a condition
of entering into the stipulation for certification upon consent election, and the agree-
ment set forth above, which settled upon three observers at the polling place for each
side, was reached and put in writing. Respondent desired the agreement in written
form to make it clear that there would be no alternate observers at the polls and to
impress upon the Board agent the seriousness of its concern over the number of
observers.
The Company contends that this agreement was violated when, as found by the
Regional Director in his report, the Board agent at 5:15 p in. on the day of the elec-
tion asked the last three voters at the end of a line waiting to vote to make certain
that no other employees were permitted to join the line and to direct any persons
who sought to join the line to go to the polling place to consult with the Board agent.
Although the agreement with respect to observers was before the Regional Director,
he did not discuss it in connection with the above-mentioned conduct of the Board
agent, and Respondent, in its exceptions to the Regional Director's report on objec-
tions, did not raise the agreement with respect to the number of observers or contend
that it was violated by the above-described conduct. I have serious doubt whether
Respondent's reliance on this separate agreement as to observers is more than an
afterthought on which it may now rely. However, considering its contention on its
merits, I find nothing in the above-mentioned facts or those otherwise found in the
Regional Director's report to indicate that the agreement as to the number of ob-
servers was violated. There is no basis to conclude that the employees at the end of
the line were observers for any party within the meaning of that term as commonly
understood. Moreover, the Regional Director concluded that the employees were not
deprived of a fair election. Even if the three employees were to be considered as
observers, the solitary addition of the fact that the separate agreement existed to the
facts expressly found by the Regional Director and affirmed by the Board does not
warrant a different conclusion.
Apart from its reliance on the agreement, Respondent has adduced no evidence to
controvert or supplement the findings of the Regional Director with respect to Re-
spondent's objections to the conduct of the election, and, absent such evidence, I
consider myself bound by the conclusions previously reached by the Regional Direc-
tor and affirmed by the Board in certifying the Union as representative of Respond-
ent's employees.
Respondent 's remaining defenses are that the certification is of no force and effect
and is invalid. The assertion that the certification is of no force and effect is a con-
clusion which Respondent seeks to have drawn from its other affirmative defenses
in which it seeks to relitigate the objections. As I have rejected those defenses, I
reject this contention . The asserted invalidity of the certification is based on evi-
dence, discovered by Respondent at the hearing , that the separate agreement between
Respondent and the Union with respect to observers, quoted above, was not in the
formal file with respect to the representation case and the statement of counsel for
the General Counsel that a clerical employee in the Regional Office of the Board did
not believe it was transmitted to Washington with other formal papers in the case.
In the absence of any other evidence I find that the agreement with respect to the
observers was not among the formal papers before the Board when it received the
Regional Director's report on objections. However, there is no reason to believe
that the Regional Director was unaware of it when he wrote his report.
Under the circumstances set forth and in view of my findings with respect to
Respondent's second defense above, I find the defect, if any,8 technical and not of
8 The Union contends that Respondent failed to establish that any rule or regulation
of the Board was violated by this omission , and that absent rules governing the submis-
sion of formal papers to the Board by its Regional Offices, it was Respondent's respon-
sibility to make certain that any papers it wished considered were either included among
the formal papers before the Board or attached to its exceptions to the Regional Direc-
tor's report as an exhibit . I find it unnecessary to decide whether Respondent had any
basis to assume that the observer agreement would be submitted to the Board as part of
the formal papers before it when considering Respondent 's exceptions.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substance. As noted above, although Respondent excepted to the Regional Director's
recommendation that its objections to the conduct of the election be overruled, it did
not rely on or even mention the observer agreement in its exceptions. Moreover, as
I have found, the agreement was not violated by the conduct on which Respondent
relies, and, even if it were, there is no showing that the breach affected the results
of the election. Furthermore, the conduct which is asserted to have breached the
observer agreement under Respondent's theory would also have breached paragraph
4 of the form stipulation for consent election which it appears was in the Board's
file of formal papers. I conclude that the omission of the observer agreement from
the papers in the Board's formal file when it considered Respondent's exceptions was
not material or prejudicial to Respondent. Accordingly, I reject its last defense.
Having considered and rejected the various defenses raised by Respondent, I find
that Respondent by refusing to bargain with the Union which was certified by the
Board pursuant to Section 9(c) of the Act as representative of the employees in the
unit found above to be appropriate has violated Section 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 section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8 (a) (5) and (1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3 All production and maintenance employees at Respondent's Belcamp, Mary-
land, plants, including design department employees, laboratory employees, manip-
ulators, building department employees, construction workers, hotel employees,
including the theatre ticket sellers and stockroom and shipping employees at Respond-
ent's Belcamp, Edgewood, and Baltimore, Maryland, plants, and plant clericals, but
excluding guards, office clerical employees, professional employees, and supervisors
as defined in the Act, constitute a unit appropriate for collective bargaining within
the meaning of Section 9 (b) of the Act.
4. At all times since August 25, 1965, the Union has been, and now is, the exclu-
sive representative of the employees in the said unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing on and since September 17, 1965, to bargain collectively with the
Union as the representative of the employees in the above unit, the Respondent has
engaged in and is engaging in unfair labor practices affecting commerce within the
meaning of Sections 8(a) (5) and (1) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, I hereby
recommend that the Respondent, Bata Shoe Company, Inc., Belcamp, Maryland, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning rates of pay, hours
of employment, and other terms and conditions of employment with United Shoe
Workers of America, AFL-CIO, as the exclusive representative of the employees in
the appropriate unit described in paragraph 3 of the section of the Decision entitled
"Conclusions of Law."
(b) In any like or related manner interfering with the efforts of the above-named
Union to bargain collectively on behalf of the employees in the appropriate unit.
BATA SHOE COMPANY, INC. 9
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of all employees in the appropriate unit, and embody in a signed
agreement any understanding reached.
(b) Post at each of its plants at Belcamp, Edgewood, and Baltimore, Maryland,
copies of the attached notice marked "Appendix." s Copies of such notice, to be
furnished by the Regional Director for Region 5, shall, after being signed by an
authorized representative of the Respondent, be posted immediately upon the receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within 20 days from the date of
the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to
comply herewith.1°
91n 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 be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , 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, in writing, within 10 days
from the date of this Oider, what steps the Respondent has taken to comply herewith."
APPENDIX
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 National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with United Shoe Workers of
America, AFL-CIO, as the exclusive representative of all the employees in the
bargaining unit described below.
WE WILL, upon request, bargain with United Shoe Workers of America,
AFL-CIO, as the exclusive representative of all the employees in the bargain-
ing unit described below with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment, and, if an understanding
is reached , embody such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees at Respondent's Belcamp,
Maryland, plants, including design department employees, laboratory em-
ployees, manipulators, building department employees,, construction work-
ers, hotel employees , including the theatre ticket sellers , and stockroom and
shipping employees at the Employer's Belcamp, Edgewood , and Baltimore,
Maryland, plants , and plant clericals ; but excluding guards, office clerical
employees, professional employees, and supervisors as defined in the Act.
BATA SHOE COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive 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, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-2159.