Bickford Shoes, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1954

109 N.L.R.B. 1346 (N.L.R.B. 1954)

1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that the father, although assigned to the first
shift, leaves the plant before his shift is over and returns with his
wife who works on the second shift. It seems apparent that the
Employer has knowledge of and consents to these irregular working
hours of the father. Helen Hosta, the mother, also enjoys the priv-
ilege of leaving the plant before her shift is over with the apparent
knowledge and consent of the Employer. In addition she is paid 15
cents more an hour than the other regular employee who performs
the same work she does. Also on a number of occasions she has re-
ceived 40 hours' pay for 30 hours' work. Another special privilege
enjoyed by the parents of Peter Hosta, Jr., is a month or more paid
vacation each year. Under established company practice based on
seniority they would be entitled only to 2 weeks' annual vacation with
pay. These facts indicate to us that the parents of Peter Hosta, Jr.,
are accorded special treatment and receive special benefits not enjoyed
by other employees. If this evidence of the special treatment granted
to Hosta's parents does not show that they enjoy a "special status
which allied [their] interests with those of management" within the
meaning of the International Metal decision, it is difficult for us to
imagine what would.
On the basis of the foregoing facts we must conclude that the parents
of Peter Hosta, Jr., do enjoy such a "special status" because of their
relationship to management and we would therefore exclude them
from the unit under the rule of the International Metal case.
BICKFORD SHOES, INC. and LOCAL # 138, BOOT AND SHOE WORKERS'
UNION, AFL and THE SHOE WORKERS' ASSOCIATION OF MILFORD,
MASSACHUSETTS , PARTY TO THE CONTRACT
THE SHOE WORKERS' ASSOCIATION OF MILFORD , MASSACHUSETTS and
LOCAL #138 , BOOT AND SHOE WORKERS ' UNION, AFL. Cases Nos.
1-CA-1603 and 1-CB-258. September 15,1954
Decision and Order
On April 9, 1954, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents, Bickford Shoes, Inc., here called Bickford, and The Shoe
Workers' Association of Milford, Massachusetts, here called the As-
sociation, had not engaged in any of the unfair labor practices alleged
in the complaints and recommending that the complaints be dismissed
in their entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel and the Charging
Union, Local #138, Boot and Shoe Workers' Union, AFL, here called
109 NLRB No. 188.
BICKFORD SHOES, INC. 1347
Local 138, filed exceptions to the Intermediate Report and supporting
briefs. Bickford filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudical error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and finds merit in the exceptions. The Board, accordingly,
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent that they are consistent with this De-
cision and Order.
1. The complaints alleged in substance that Bickford violated Sec-
tion 8 (a) (1), (2), and (3), and the Association violated Section 8 (b)
(1) (A) and (2) by executing and enforcing a collective-bargaining
contract which resulted in the discharge of employees at Bickford's
old plant in Boston and the preferential hiring of Association's mem-
bers at its new plant in Milford, Massachusetts, as more fully de-
tailed in the Intermediate Report. The Trial Examiner was of the
opinion that the Bickford-Association contract was prima facie un-
lawful in that it granted employment preference to members of the
Association, a labor organization composed of shoe workers residing in
Milford, who was the beneficial owner of the Milford plant premises
under a trust indenture. However, the Trial Examiner concluded in
substance that the contract was not unlawful, under all the circum-
stances, as the preference was "patently referable" to the "preferred
group's landlord interest in the factory and to their residency in Mil-
ford" and thus the preference did not encourage membership in the
Association as a labor organization. As he viewed the contract as
lawful, the Trial Examiner further concluded in substance that Bick-
ford was free to discharge its Boston employees and hire Association
members at Milford and that the Association did not engage in un-
lawful conduct by causing Bickford to discharge the Boston employees
and hire Association members at Milford.
We do not agree. Bickford discharged its Boston employees be-
cause it discontinued plant operations at Boston and removed those
operations to the Milford plant. As the move was motivated solely
by economic considerations, Bickford did not violate the Act merely
by discharging the Boston employees. On the basis of the foregoing,
the Association did not cause Bickford to discharge the Boston em-
ployees within the meaning of the Act. However, as a result of the
contract with the Association, Bickford hired at Milford, Association
members, giving them preference in employment as required by the
contract. If the Association's contract was unlawful, by such hiring,
Bickford (a) discriminated against employees in violation of Section
8 (a) (3), (b) gave support to the Association in violation of Section
334811--55-vol. 109-86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (a) (2), and (c) derivatively violated Section 8 (a) (1) ; and the
Association, as a party to the preferential hiring contract, caused Bick-
ford to discriminate against employees in violation of Section 8 (b)
(2) and Section 8 (b) (1) (A) of the Act, all as alleged in the com-
plaints. Thus, whether these allegations have been sustained depends
on the validity of the Association's contract.'
We find merit in the contention of Local 138 and the General
Counsel that the fact that the Association or its members have a pro-
prietary interest in the Milford plant does not exempt the Associa-
tion's contract granting preference in employment to its members
from the ban of Section 8 (a) (3) of the Act. Contrary to the Trial
Examiner, it is immaterial that Bickford granted the preference
to Association members not because of the Association's status as a
labor organization but because the Association, as landlord, controlled
the leasing of the Milford plant.2 Where disparate treatment, such
as preference in employment, is accorded, as here, on the basis of union
membership, the employer's reason, be it business expedience or other-
wise, for according such preference is irrelevant, as the preference it-
self is not within the employer's allowable freedom of action. The
preference granted here is unlawful in that it granted the Association
a type of job monopoly which Congress intended to withhold without
regard to the employer's motive in granting the preference. The
legislative history of the Act is replete with evidence that Congress
banned the closed shop in enacting Section 8 (a) (3).3 Nowhere in
1 Paragraph 2 of the contract provided :
Attached to this Agreement and made a part hereof is a list furnished by the Union,
setting forth a pool of shoe workers and the respective crafts to which they belong,
from which the Employer shall hire shoe workers for its various departments as here-
inafter provided The Union represents that each person whose name appears on
said list is a member of the Union and is qualified to do the work in his or her respec-
tive craft . Said list is hereinafter referred to as the "primary list" and workers who
shall be hired by the Employer from said list are hereinafter referred to as "primary
list employees ." It is agreed that in hiring shoe workers for any craft the Employer
shall in the first instance hire the persons that are listed on the primary list in the
order in which their names appear on the primary list for such craft. . . .
In fact, those named in the list , attached to the contract, were those woikerl who were em-
ployed at the Milford plant by the immediately preceding shoe manufacturer at the time
he discontinued operations in March 19,53; and those listed comprised the entire member-
ship of the Association.
2 The Trial Examiner also attributed the preference to the residency of those preferred.
This is not wholly in accord with the facts As between unemployed qualified shoe workers
residing in Milford , the contract extended top priority in hiring to residents who were
members of the Association.
3For example, Sen . Rep No. 105 , 80th Cong ., 1st Sess. ( 1947 ), states at page 3:
The major changes which the bill would make In the National Labor Relations Act
may be summarized as follows :
# t i i t
2. It abolishes the closed shop . . .
0
House 'Conference Rep. No. 510, on H. R. 3020, 80th Cong., 1st Sess. (1947) states
atp.41:
s s s s r t •
Both the House bill and the Senate amendment, in rewriting the present provisions
of Section 8 (3) of the Act, abolished the closed shop. . . .
BICKFORD SHOES, INC. 1349
the legislative history is there any indication that applicability of the
statutory ban is dependent upon motive or on any other circumstance
surrounding the granting of a closed shop or any other union-security
arrangement falling outside the permissive scope of Section 8 (a) (3).
More specifically, the vice involved in the instant case is that the
Association's contract required Bickford to recruit its employees from
the Association's membership rolls before hiring others, thus preclud-
ing Bickford from hiring freely in the open market, and further pre-
cluding other than Association members from obtaining jobs at the
Milford plant except subject to the preference granted to Association
members. Such a hiring arrangement is discriminatory and neces-
sarily tends to encourage membership in the contracting labor organ-
ization and to discourage membership in any other labor organization.
We are not ruling on what would be the result if the contract merely
had required Bickford to give preference in employment to residents
of a given area. This, however, the contract did not do. The contract
required Bickford to prefer Association members in hiring. This, as
indicated, the statute prohibits.
We conclude that Congress, in the Act as amended, has proscribed
the closed shop as a national policy without regard to the motives of
the contracting parties in making such an arrangement, and that the
contract in this case falls within the proscription of Section 8 (a) (3)
of the Act because it involved a hiring arrangement tantamount to a
closed shop.
As the contract was unlawful, we find that, by its execution and
enforcement, Bickford violated Section 8 (a) (1), (2), and (3) of
the Act, and the Association violated Section 8 (b) (1) (A) and (2)
thereof.
2. The complaint against Bickford also alleged in substance that
Bickford refused to bargain with Local 138 with respect to the trans-
fer of the Boston employees to Milford. While Bickford operated
the Boston plant, Local 138 was the recognized bargaining represen-
tative of Bickford's Boston employees under a union-shop contract.
It appears that, during the period of negotiations for leasing of the
Milford plant, Local 138 requested Bickford to transfer the Boston
employees to Milford if Bickford moved there, but that Bickford
stated that such a request was premature in that Bickford had not
concluded arrangements to move; and upon concluding such arrange-
ments, Bickford moved without notifying Local 138. After Bick-
ford retained a new complement of employees, Local 138 renewed its
request for employment of the Boston employees at Milford. Bick-
ford did not directly reply to this request, but made individual offers
of employment to some Boston employees, none of whom accepted.
The Trial Examiner found that Bickford did not unlawfully refuse
to bargain. He reasoned in substance that: (1) Before moving, Bick-
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ford advised Local 138 and the Boston employees that Bickford had
undertaken negotiations looking toward moving to Milford; (2) Lo-
cal 138 never requested Bickford to negotiate as to whether Bickford
should move; (3) assuming that an employer has a duty to discuss
with a bargaining representative of employees the transfer of the em-
ployees from a closed plant to a new operation at another site, there
was no "unlawful failure of discussion" here because such statutory
duty does not require granting employees at the former operation
"first preference" for jobs at the new site, which was what Local 138
"allegedly" requested; and (4) during the pendency of the negotia-
tions for the leasing of the Milford plant, Bickford was not obligated
to bargain with Local 138 with respect to the transfer of employees
from Boston to Milford because, as Local 138 knew, without agreeing
to the preferences for Association members (which were lawful),
Bickford could not obtain a lease of the Milford plant, and that after
execution of the lease and the Association's contract, Bickford's ob-
ligations thereunder precluded Bickford from dealing with Local
138 with respect to transfer of Boston employees to the Milford plant.
We do not agree with the Trial Examiner's conclusions. It is true,
as the Trial Examiner found, that Local 138 never requested Bick-
ford to negotiate as to whether it should move. However, the crux
of the 8 ( a) (5) issue is whether Bickford had a duty to bargain con-
cerning the effect of moving upon the tenure of the Boston employees
and, if so, whether Bickford fulfilled such obligation. We answer the
first question in the affirmative and the second in the negative. In the
Brown Truck case, 106 NLRB 999, 1000, where the employer moved
its plant from Charlotte to Monroe, North Carolina, for economic
reasons, as here, the Board stated :
... the good-faith discharge of the Brown Company's obliga-
tion to the employees' statutory bargaining representative re-
quired the former , at least, to advise the Union of the contem-
plated move and to give the Union the opportunity to bargain
with respect to the contemplated move as it affected the employ-
ees, such as the placement of the Charlotte employees in positions
at Monroe.
In the instant case, Bickford advised Local 138 that Bickford con-
templated moving, but it did not give Local 138 an opportunity to
bargain with respect to the contemplated move as it affected the Bos-
ton employees. As stated above, when Local 138 requested such
transfer before Bickford decided to move, Bickford declined to con-
sider the request on the ground that it was premature. Nor did Bick-
ford bargain with Local 138 after Bickford concluded arrangements
to move for, when Local 138 renewed the request after Bickford
BICKFORD SHOES, INC. 1351
moved, although Bickford made job offers to individual Boston em-
ployees, it made no reply to Local 138.
The Trial Examiner further reasoned that, even if Bickford had
a duty to discuss transfer of the employees , Bickford 's failure to do
so was not unlawful as the duty did not include any obligation to
grant the Boston employees "first preference" for jobs at Milford,
which was what Local 138 "allegedly" requested . However, while
Bickford was under no duty to accede to such a request, this does not
justify a refusal to discuss it.
The Trial Examiner also reasoned that there was no "unlawful
failure of such discussion " during the pendency of the negotiations
for the Milford plant because , as Local 138 knew, Bickford could
not obtain a lease to the Milford plant without assent to the prefer-
ences for Association members ; and , after execution of the lease and
the contract , Bickford 's obligations thereunder to staff the Milford
plant with Association members precluded Bickford from bargaining
with respect to transfer of the Boston employees. The validity of the
Trial Examiner's reasoning on this score depends upon the validity
of his conclusion that the contract was valid. We have concluded
above that business expediency does not justify an otherwise unlawful
union-security contract and that the Association 's contract was un-
lawful. Hence, neither the pending negotiations for the lease and con-
tract, nor the execution of the lease and contract can serve to justify
Bickford 's refusal to bargain with Local 138.
Accordingly, we find that Bickford violated Section 8 (a) (5) of
the Act by refusing to bargain with Local 138 concerning the effect
of moving from Boston to Milford upon the tenure of the Boston em-
ployees.
TILE REMEDY
As we have found above that the Respondents violated the Act by
maintaining and enforcing unlawful union-security provisions of
their collective-bargaining agreement, we shall order them to cease
and desist from performing or giving effect to such unlawful union-
security provisions.
We have also found above that Bickford unlawfully refused to
bargain with Local 138 with respect to transfer of employees from
Boston to Milford jobs. However, as Local 138 does not represent the
employees at the Milford plant, and the Boston operations having
been lawfully discontinued, we shall issue no bargaining order.
As the record does not establish that the Milford employees were
cognizant of the events underlying the unfair labor practices found,
we shall not require the posting of notices in the Milford plant. In
lieu thereof, we shall require Bickford and the Association, respec-
tively, to send an appropriate notice, copies of which are attached
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereto and marked as appendixes, to each of the Boston employees
affected by such unfair labor practices.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, Bickford Shoes, Inc., Milford, Massachusetts,
its officers, agents, successors, and assigns, shall :
(a) Cease and desist from:
1. Performing or giving effect to the unlawful union-security pro-
visions of its contract with The Shoe Workers' Association of Milford,
Massachusetts, dated December 7, 1953, or entering into or enforcing
any extension, renewal, modification, or supplement thereto, or any
superseding agreement with said labor organization containing union-
security provisions, except in accordance with Section 8 (a) (3) of
the Act.
2. Encouraging membership in The Shoe Workers' Association of
Milford, Massachusetts, or in any other labor organization of its
employees, by hiring or in any other manner discriminating against
its employees in regard to their hire or tenure of employment, except
to the extent permitted by Section 8 (a) (3) of the Act.
3. In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed by Sec-
tion 7 of the Act, including the right to refrain from membership in
The Shoe Workers' Association of Milford, Massachusetts, except
to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
1. Send to each of its Boston employees, in its employ as of Decem-
ber 7, 1953, a copy of the notice attached hereto and marked "Ap-
pendix A 4 Copies of said notice, to be furnished by the Regional
Director for the First Region, shall, after being duly signed by
Respondent Bickford's representative, be mailed immediately upon
receipt thereof to said employees, directed to their last known place
of address.
2. Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
4In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
BICKFORD SHOES, INC. 1353
II. The Respondent, The Shoe Workers' Association of Milford,
Massachusetts, its officers, representatives, agents, successors, and
assigns, shall :
(a) Cease and desist from :
1. Performing or giving effect to the unlawful union-security pro-
visions of its contract with Bickford Shoes, Inc., dated December 7,
1953, or entering into or enforcing any extension, renewal, modifica-
tion, or supplement thereto, or any superseding agreement with said
Employer containing union-security provisions, except in accordance
with Section 8 (a) (3) of the Act.
2. Causing or attempting to cause Bickford Shoes, Inc., to dis-
criminate against its employees in violation of Section 8 (a) (3) of
the Act.
3. In any like or related manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
1. If their names and addresses are known or available to Respond-
ent Association, send to each employee of Bickford Shoes, Inc., in
its employ as of December 7, 1953, a copy of the notice attached hereto
and marked "Appendix B." 5 Copies of said notice, to be furnished
by the Regional Director for the First Region, shall, after being duly
signed by Respondent Association's representative, be mailed imme-
diately upon receipt thereof to said employees, directed to their last
known place of address.
2. Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
MEMBER BEESON, concurring in part and dissenting in part :
I agree with my colleagues, for the reasons set forth in the majority
opinion, that Bickford violated Section 8 (a) (1), (2), and (3) of the
Act, and that the Association violated Section 8 (b) (1) (A) and (2).
I cannot, however, agree that Bickford violated Section 8 (a) (5),
because I am of the opinion that under the circumstances of this case
Bickford had no statutory duty to bargain with Local 138 concerning
the effect of moving upon the tenure of the Boston employees.
This is not a "runaway shop" case, in which a company moves the
situs of its operations and discharges its employees to avoid bargain-
ing with its employees' statutory representatives; 6 for my colleagues
5 See footnote 4, supra.
6 See Tennessee-Carolina Transportation, Inc., 108 NLRB 1369.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and I are agreed that the move from Boston to Milford, and the ter-
mination of the Boston employees, were motivated solely by lawful
economic considerations. Under these circumstances Bickford, in the
language of the court of appeals, "had the undoubted right to decide
unilaterally and without consultation with the union to close its plant
for economic reasons...."' As Bickford was privileged to discon-
tinue its Boston operations and to discharge its Boston employees,
without bargaining with Local 138, I can find no warrant, either in
law or in logic, for requiring bargaining with respect to the effect of
subsequent developments upon the tenure of employees whose tenure
of employment was lawfully terminated.
If Bickford had closed its plant before Local 138 had requested
bargaining concerning the move, it would not have been under any ob-
ligation to bargain because Local 138 would not have represented
any of its employees 8 The fortuitous circumstance that Local 138
requested bargaining before the shutdown does not warrant a differ-
ent conclusion when, as here, the request related to conditions affecting
individuals when they would no longer be Bickford's employees.
Sound personnel practice would seem to dictate that management
should discuss with the employees' representative the effect upon the
employees of a legitimate move from one plant to another. But the
extent of an employer's legal obligation to bargain does not neces-
sarily coincide with what I, or my colleagues, may view as sound per-
sonnel practice. In my opinion, the matters involved in this aspect
of the case, which have no relationship to the conditions of employ-
ment of Bickford's employees, are wholly within the area of manage-
ment prerogative. I believe, moreover, that the Brown Truck case,
relied on by the majority, was wrongly decided, and I would overrule
it. As in my opinion Bickford was, under the circumstances of this
case, under no legal obligation to bargain with respect to the effect
of its lawful actions, I would dismiss the 8 (a) (5) allegations of the
complaint.
MEMBERS MURDOCK and PETERSON took no part in the consideration
of the above Decision and Order.
Appendix A
NOTICE TO ALL BOSTON EMPLOYEES IN THE EMPLOY OF BICKFORD SHOES,
INC. AS OF DECEMBER 7, 1953
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
7 Mount Hope Finishing Company v . N. L. R B., 211 F. 2d 365, 374 ( C. A. 4).
8 N. L R. B v. The Houston Chronicle Publishing Co., 211 F. 2d 848, 855 (C. A. 5).
BICKFORD SHOES, INC. 1355
WE WILL NOT perform or give effect to the unlawful union-se-
curity provisions of our agreement with The Shoe Workers' Asso-
ciation of Milford, Massachusetts, and we will not enter into or
enforce any extension, renewal, modification, or supplement there-
of, or any superseding agreement with the said Union, containing
union-security provisions, except in accordance with Section 8
(a) (3) of the Act.
WE WILL NOT encourage membership in The Shoe Workers' As-
sociation of Milford, Massachusetts, by discriminating in regard
to the hire, tenure, or conditions of employment of any of our em-
ployees.
WE WILL NOT in any other like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the Act.
All our employees are free to become, to remain, or to refrain from
becoming, or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act, as amended.
BICKFORD SAGES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL BOSTON EMPLOYEES IN TIIE EMPLOY OF BICKFORD SHOES,
INC. AS OF DECEMBER 7, 1953
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT perform or give effect to the unlawful union-se-
curity provisions of our agreement with Bickford Shoes, Inc., and
we will not enter into or enforce any extension, renewal, modifica-
tion, or supplement thereof, or any superseding agreement with
the said Company, containing union-security provisions, except
in accordance with Section 8 (a) (3) of the Act.
WE WILL NOT cause nor attempt to cause Bickford Shoes, Inc.,
to discriminate against employees in regard to their hire or tenure
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment or any term or condition of employment in viola-
tion of Section 8 (a) (3) of the Act.
WE WILL NOT in any other like or related manner restrain or
coerce employees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act, except to the extent that such rights may be af-
fected by an agreement requiring membership in a labor organ-
ization as a condition of employment, as authorized in Section 8
(a) (3) of the Act, as amended.
THE SHOE WORKERS' ASSOCIATION OF
MILFORD , MASSACHUSETTS,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from date hereof, and
must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by a labor organization, herein called Local 138 (Local #138,
Boot and Shoe Workers' Union, AFL), the General Counsel for the National Labor
Relations Board issued complaints on January 25, 1954, against Bickford Shoes,
Inc., herein called Bickford,' and against The Shoe Workers' Association of Milford,
Massachusetts, an alleged and admitted labor organization herein called the Associa-
tion; the respective complaints alleged violations of Section 8 (a) (1), (2), (3),
and (5) as to the Respondent Company and violations of Section 8 (b) (1) (A)
and 8 (b) (2) as to the Respondent Association. Copies of the complaints and
charges were served upon the respective Respondents, both of which filed answers
denying the commission of the unfair labor practices alleged.
Pursuant to notice and an order consolidating both cases, a hearing was held
in Milford, Massachusetts, on February 15 and 16, 1954, before the undersigned
Trial Examiner. All parties were represented by counsel and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The parties were afforded opportunity to present
oral argument before the Trial Examiner and to submit briefs and proposed find-
ings of fact and conclusions of law. Motions of the Respondents to dismiss the
complaints are disposed of in accordance with the following findings of fact and
conclusions of law.
Upon the record, and upon observation of the demeanor of witnesses, I make the
following:
FINDINGS OF FACT
THE ALLEGED UNFAIR LABOR PRACTICES
From 1948 until December 1953 Bickford manufactured shoes at a plant in the
Jamaica Plain section of Boston , Massachusetts ; and until the very end of this period
Bickford recognized and had collective -bargaining agreements with Local 138 in
behalf of an appropriate bargaining unit of production and maintenance employees.2
On or about December 8, 1953, Bickford gave up its Boston plant and moved
operations to Milford , Massachusetts , 30 miles away , where it has since been
engaged in exactly the same line of manufacturing , requiring the same employee
skills as were involved in the Boston plant.
i Bickford Is a Massachusetts corporation engaged In the manufacture of shoes In that
State, with yearly interstate purchases and sales respectively exceeding $100,000. It is
engaged in commerce within the meaning of the Act.
2 Based upon a Board election in 1948.
BICKFORD SHOES, INC. 1357
Before moving to Milford, Bickford executed in December 1953, and for an
original 2-year term, a collective-bargaining agreement with the Association (The
Shoe Workers' Association of Milford, Massachusetts). This agreement extends
bargaining recognition to the Association for a stated production unit at the Milford
plant and it covers wages, hours, grievance machinery, and other matters usually
found in collective-bargaining agreements ; the agreement also gives employment
preference to Association members. When Local 138's representatives learned-
originally from outside sources-that Bickford was considering a move to Milford,
these representatives allegedly sought to obtain information about the move for
the purpose of negotiating concerning the employment of Bickford' s Boston person-
nel at the Milford plant.
Conceding at the outset that Bickford's reason for moving to Milford was solely
economic and unrelated to union considerations of any kind, the General Counsel
contends, inter alia, that Bickford violated Section 8 (a) (5) because it failed and
refused to negotiate with Local 138 respecting the transfer of its Boston plant
personnel to the Milford operation; that Bickford violated Section 8 (a) (3) by
preferring Association members for employment at Milford and by denying such
employment to, and accordingly discharging, the Boston employees because of their
nonmembership in the Association in accordance with a contract between the
Association and Bickford; and that Bickford violated Section 8 (a) (2) by recog-
nizing and bargaining with the Association in advance of operations at Milford
and by executing the aforementioned agreement with the Association. The viola-
tions of Section 8 (b) (1) (A) and 8 (b) (2) alleged against the Association are
the usual statutory counterparts attributed to a labor organization which itself
participates with an employer in the misconduct allegedly involved here.
At first blush, this case seems an open and shut one with the conduct respecting
the Association and its contract constituting the classic type violations of the statu-
tory provisions involved. But what first appeared as classic is really novel in my
opinion, as appears from a consideration of the Association' s genesis in 1934 and
subsequent related events.
A. The Association
Milford, Massachusetts, with an approximate population of 14 or 15 thousand,
is in a shoe manufacturing area. The 1920's saw comparatively greater unemploy-
ment in the Massachusetts shoe industry than in the Commonwealth's other industries
during that turbulent period; and between January 1930 and December 1938, 79 fac-
tories migrated from Massachusetts, 61 of these plants leaving at the end of 1933
and during 1934. Although some new shoe firms were meanwhile established in
Massachusetts, the total number of shoemaking jobs in the State decreased by 25
thousand between 1923 and 1935.3 It may be assumed, needless to say, that the
impact of this disruption on the economic and social life of the affected communities
gravely concerned all economic segments of those communities, businessmen and
wage earners alike.
Such, then, was the industrial picture when, in 1934, a shoe manufacturing con-
cern inquired of Milford's Chamber of Commerce concerning the availability of
factory space in that town. There was a vacant shoe factory building in Milford
at the time, and there were many unemployed shoe workers in the town as well.
Local businessmen decided to do something about this opportunity for local em-
ployment, with the following results: A roster was compiled of all unemployed shoe
workers residing in Milford; these shoe workers were organized into the Associa-
tion , an incorporated body; a trust was created by an appropriate trust instrument
for the purchase in behalf of the Association of the aforementioned factory prem-
ises; and the funds to acquire the property were advanced by three local banks. The
mentioned shoe company thereupon obtained a lease of the premises and engaged
in the manufacture of shoes.
The Declaration of Trust, mentioned above, was executed in December 1934 and
provides that five trustees hold legal title to, and administer , the trust properties
(land, building, etc.) for the benefit of the "[Association], its successors and assigns,
or any succeeding organization by it created and designated to be the beneficiary."
Three trustees represent the local banks which advanced the funds to purchase the
property for the Association, and the two other trustees represent and are members
of the Association. The trust may be terminated at any time by a vote of 4 of the 5
trustees ; absent such termination action , however, the stated duration of the trust
3 The economic data in this paragraph is obtained from Norton, Trade Union Policies in
Massachusetts Shoe Industry (1934), pp. 91-96, and Davis, Shoes: The Workers and the
Industry (1940), pp. 13-14.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is for 20 years from the death of the last survivor of the 5 original trustees. The
trust instrument also provides, in the event the Association or its successor or assign
or designated beneficiary cease to exist before the trust expires, that the trust estate
shall, upon such termination, be "paid over and distributed to the Town of Milford
to be used for the advancement of industry in Milford."
The trust instrument recites further, that the Association has agreed to repay the
banks for the purchase funds advanced by them, and the record establishes that,
since 1934, a portion of each Association member's dues has been regularly allo-
cated to the Association's building fund for such purpose and for otherwise main-
taining the property. By 1947, the Association finally paid off the purchase indebt-
edness, the trust arrangement still continuing, however, in accordance with terms of
the trust instrument.
Shoe manufacturers have leased and operated the shoe factory premises since 1934.
Respondent Bickford is the present such manufacturer, having taken over the prop-
erty as a tenant in December 1953. At all times since the trustees acquired the fac-
tory premises in behalf of the Association, the same general situation has prevailed
in regard to leasing the property. Thus, any manufacturer-tenant must execute, as a
package deal, both a lease with the trustees and a collective-bargaining agreement
with the Association, the arrangement between the trustees and the Association being
that the premises will not be let unless and until the prospective tenant and the Asso-
ciation's negotiating committee reach agreement on working conditions (wages, hours,
etc.) for the prospective tenant's operation. Only then is a lease executed, and this
same package-deal situation existed when Bickford executed its lease with the trustees
and labor agreement with the Association in December 1953.
The December 1953 lease is for a 3-year term. From the landlord's point of view,
the lease itself is not profitmaking as a real estate venture; for the agreed yearly rent
does not exceed the amount of the annual tax assessments on the leased premises,
some maintenance costs, and a "proportion" of the annual insurance premiums nor-
mally paid on the property. The indenture of lease also shows, among other things,
that the leasehold arrangement is predicated upon the relationship, including the col-
lective-bargaining agreement, between Bickford and the Association, which agree-
ment-further recites the lease instrument-"provide[s] for employment of the
Association members by the lessee [Bickford]."
The Association has always required as a condition of its labor agreements with
lessee-manufacturers, that there be three orders of priority in manning the plant
as to the stated production unit, and these employment preferences are also con-
tained in the December 1953 agreement between the Association and Bickford
First preferred are members of the Association; next in line are other "unemployed
qualified shoe workers" residing in Milford; and, finally, are "unemployed qualified
shoe workers" residing in the "vicinity" of Milford. The agreement provides in this
connection that Bickford "shall not be precluded from hiring such shoe workers who
reside elsewhere if [Bickford] is unable by the exercise of reasonable efforts to
secure qualified shoe workers [within the aforementioned preference groups] "
The labor agreement further provides that whenever a production employee is hired
who is not an Association member, such employee is required to join the Associa-
tion upon completion of a 90-day probationary employment period. Under the
agreement, Bickford retains the normal management authority to discharge or
otherwise discipline employees covered by the agreement.
It is recalled that all unemployed shoe workers in Milford comprised the Associa-
tion's membership in 1934. Membership in the Association since then has depended
on employment at the shoe factory in question, absent economic layoffs. For ex-
ample: When Respondent Bickford took over the premises in December 1953, the
Association members were those individuals who had been in the former manufac-
turer's employ when the latter ceased operations in March 1953. According to the
terms of the December 1953 agreement between Bickford and the Association, these
former employees were established on a so-called "primary list" to which first em-
ployment preference is accorded .4 An Association member loses his Association
membership and his place on this "primary list" when he is discharged for cause or
when he fails, without justifiable excuse," to report for work after being advised
to do so by the appropriate shop steward. The record shows that many of Bick-
ford's present employees at Milford have been members of, and accordingly have
been paying dues to, the Association since its inception in 1934.
4 The contract also provides that all employees hired outside the "primary list" are
placed on a "secondary list" upon completion of the probationary period. The contract
maintains the preference for "primary list" employees as against the "secondary list"
group in the case of layoffs and recalls after layoff as well.
BICKFORD SHOES, INC. 1359
Conclusions Respecting the Association and its 1953 Contract with Bickford
Sections 8 (a) (3) and 8 (b) (2) respectively make it an unfair labor practice
for an employer, and for a labor organization to cause an employer, to encourage or
discourage membership in any labor organization by discriminating "in regard to
hire or tenure of employment or any term or condition of employment" on the basis
of membership, or the lack of it, in such labor organization. See Radio Officers'
Union, etc. v. N. L. R B., and companion cases, 347 U. S. 17. And the execution
and/or maintenance of a contract whose provisions effect such encouragement or
discouragement on that basis is unlawful. N. L. R. B. v. Puerto Rico Steamship
Association, 211 F. 2d 274 (C. A. 1), enfg. 103 NLRB 1217; N. L. R. B v. Gottfried
Baking Co., Inc., et al., 210 F. 2d 772 (C. A. 2); Permanente Steamship Corporation,
107 NLRB 1111. The General Counsel asserts that the December 1953 agreement
between Bickford and the Association is accordingly unlawful because, by its very
terms, it grants preferential employment status to Association members.
It is evident that in at least one essential respect the Association and its members
have a different relationship with Bickford than that conventionally enjoyed by labor
organizations and their members with their employers. As the beneficial owner of
the factory premises, the Association is able to require, as it did require, that prefer-
ential hiring of the class of beneficial landlords (Association members) be a con-
dition, not merely of Bickford's operations in Milford, but of Bickford's very
occupancy of the factory as a tenant. Certainly, labor organizations do not tradi-
tionally possess such controlling voice in determining whether an employer may
occupy factory premises at all and under what circumstanes. But these considera-
tions of proprietorship, as well as the community nature of the Association, are, in
the opinion of the General Counsel, immaterial to the issues involved here. The
General Counsel thus contends in this connection that the Act is plainly violated
once it is shown that employment preference is given to members of a labor organi-
zation, and that no statutory authority exists for excepting any such situation from
the Act's operation.
I have found no Board precedents, and none have been submitted by the parties,
which deal with the statutory impact of an employee's proprietary interest within a
context similar to the present situation. There are cases, for example, which hold
that mere stock ownership in his corporate employer's business does not disqualify
an employee from inclusion in a bargaining unit together with employees who do
not own such stock.5 Such stock ownership is disqualifying, however, where "the
employee-stockholder's interest is of such nature as to give him an effective voice
in the formulation and determination of corporate policy." 6 Where 118 of a cor-
porate employer's 242 stockholders each held 1 share of stock-there being a total
number of 250 shares, with a par value of $5,000 per share-the Board excluded the
118 stockholder-employees from an appropriate unit of nonstockholding employees
on the ground that, while each such employee held but 1 share, the 118 stockholder-
employees together constituted a potentially effective influence in the management
of the company.? Similarly, in the case of another corporate concern which was
owned in equal shares by 208 shareholder-employees, the Board excluded these 208
shareholder-employees from a unit of 140 nonshareholder helpers .8 The Board has
also held in Olympia Shingle Company, 26 NLRB 1398, 1414, an unfair labor
practice proceeding, that a stockholder-employee has employee status under the Act
even where a majority of employees, by virtue of their stock ownership, may have
ultimate management control of their corporate employer. Following the Olympia
Shingle decision in a representation case where each of the total complement of 365
employees owned 1 share of stock and individuals not employed by the corporate
employer owned the remaining 110 shares outstanding, the Board held that the
stockholder-employees are employees as defined in Section 2 (5) of the Act and
may themselves constitute an appropriate bargaining unit. Everett Plywood & Door
Corporation, 105 NLRB 17.
The Board in the foregoing cases merely determined the statutory status of
employee-stockholders as employees and their eligibility for inclusion in bargaining
units with or without other classes of employees. There was no need to, and the
5 Cordiano Can Co, 38 NLRB 905, 909; Mutual Rough Hat Company, 86 NLRB 440,
444; Muskogee Dairy Products Co., 85 NLRB 520, 521; Coastal Plywood h Timber Com-
pany, 102 NLRB 300, 301-302.
eAlderwood Products Corporation, 81 NLRB 136, 138; Harms Hosiery Co., Inc, 91
NLRB 330, 332 ; Union Furniture Co , 67 NLRB 1307, 1309-1310.
7 Brookings Plywood Corporation, 98 NLRB 794, 798-799.
8 Oakland Scavenges Company, 98 NLRB 1318
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board did not, decide whether or not other statutory consequences flow from an
employee's proprietary interest in the business of his corporate employer. (The
foregoing cases involve employees with an interest in their employer's business; the
present case involves employees who are their employer's landlord.)
It is convenient, in the analysis of many legal problems, to fit a situation into one
of the conventional juridical classifications and then to apply the established prin-
ciples of that classification to matters at issue. In the present case, for example,
the result would be readily ascertainable were the legal character of the Association
to be solely that of a labor organization as defined in Section 2 (5) of the Act .9
Some situations, however, defy this type of exclusive pigeonholing; as in the present
case, the Association has the character of a landlord and a community enterprise,
as well as the attributes of a statutory labor organization which I find it is.
How then is the Association to be treated? Should the labor organizational char-
acter of the Association necessarily determine all issues affecting the Association
under the Act? To accept this hypothesis would arbitrarily disregard and thereby
cause possible injury to other important aspects of the Association's juridical nature.
It would be equally doctrinaire, conversely, to conclude that the proprietary aspect
of the Association necessarily precludes the Association's status as a labor organiza-
tion within the aforementioned statutory definition.
It is apparent that the dictionary is not, it cannot be, the touchstone for resolving
all legal problems. As original situations are presented, giving rise to new con-
siderations, there must be room in the law for reasonable accommodation with
established principles. "Resort to the policy of a law may be had to ameliorate
its seeming harshness or to qualify its apparent absolutes. .. (Markham v.
Cabell, 326 U. S. 404, 409, afg. 148 F. 2d 737, 739 (C. A. 2).) In resolving the
present case, therefore, I reject the notion that the Association's function as a labor
organization is necessarily determinative of all issues under the Act. I recognize,
rather, that the Association is an organization of many facets-some of which are
not labor organizational-and that, while for some purposes at law the Association
is a statutory labor organization, for some other purposes it may be something
else. Whether the employment preference clause of the 1953 agreement is valid,
therefore, requires a consideration of all aspects of the Association's nature and
then an evaluation, within the Act, of those aspects of its total character upon which
the preference is actually based. Just as the law permits "piercing the corporate
veil" and otherwise considering all the economic realities of a situation in order
to prevent fraud or other wrongdoing,1° it seems equally salutary that all such
circumstances be likewise considered in order to avoid hardship which may result
from applying a statute to purposes never intended by Congress.
During oral argument at the end of the hearing, I inquired concerning the views
of the General Counsel's representative on the following supposititious facts:
Suppose the town of Milford were to purchase a factory and then lease it to a
manufacturer on condition that he employ only local workmen. Would such
condition, I asked, violate the Act? The General Counsel replied that it would,
even though the hypothetical situation was expressly devoid of any labor organiza-
tional factors. Clearly, however, such condition would not be unlawful under the
facts stated, for there is nothing in the language or policy of the Act which is
intended either to encourage or to discourage residency in described geographical
areas or political subdivisions. (Or, by way of another illustration: There is nothing
in the Act which is intended either to encourage or to discourage redheadedness,
and a condition of employment requiring such physical attribute and unrelated to
labor organizational circumstances would similarly not violate the Act.)
Now to posit another hypothetical situation: Suppose a group of individuals,
who own a factory, grant a lease on the premises on condition that the tenant-
Section 2 (5) provides:
The term "labor organization" means any organization of any kind, or any agency
or employee representation committee or plan, in which employees participate and
which exists for the purpose, in whole or in part, of dealing with employers concern-
ing grievances, labor disputes, wages, rates of pay, hours of employment, or conditions
of work.
10 See, for example, N. L. R. B. v Stowe Spinning Co., 336 U. S. 226, 227 ; N. L. R. B. v.
Somerset Classics, Inc., 193 F. 2d 613, 615 (C. A. 2), cert. denied 344 U. S. 816; N. L. R. B.
v. E C. Brown Co, 184 F. 2d 829 (C. A. 2), enfg 81 NLRB 140; V. I,. R. B. v. Hopwood
Retinning Co., 98 F. 2d 97, 102, and 104 F. 2d 302, 304 (C. A. 2) ; N. L. R. B. v. National
Garment Company, 166 F. 2d 233, 238 (C. A. 8), cert. denied 34 U S 845.
BICKFORD SHOES, INC. 1361
manufacturer prefer the landlord group for employment in his operation. This,
too, would involve no violation of the Act, for the statute was also not intended
either to encourage or to discourage the ownership of manufacturing premises.
Suppose, further, that the owner group of the last hypothetical situation organize
themselves into a so-called landlord union and this so-called unit requires a pros-
pective tenant-manufacturer as a condition of any leasehold, not only to hire the
landlord group but also to execute an agreement with a committee of the union
concerning the wages, hours, and other terms and conditions under which the
landlord-employees will work in the plant. Does the association of the landlord-
employees into a labor organization thereby convert, automatically and necessarily,
what was a lawful employment preference for landlords into an unlawful preference
for labor organization members? I believe not.
The record, on review, portrays a community's effort in 1934-following and
during a long period of worsening employment-to provide jobs for local towns-
people. Highlighting the community character of the Association and of the Asso-
ciation's acquisition of the factory as beneficial owner are, among other circum-
stances: the original composition of the Association membership from all unem-
ployed shoe workers in Milford; the requirement through the years that employ-
ment preference at the factory be given to these original townspeople members,
who meanwhile have been working at the factory, with secondary preference to
other townsfolk and then to shoe workers residing in the vicinity of Milford; and
the trust provision that the property shall vest in the town of Milford if the Asso-
ciation or its successor does not survive the trust. There is, in addition, the fact
that local banks originally advanced the money to acquire the property for the
Association and that the Association members have themselves paid for, and borne
the cost of maintaining, the property. These Milford shoe workers have, since
1934, been working in their factory and they have purchased and maintained the
plant solely for the purpose of assuring continued employment at their trade in their
own town. Morgan Flaherty, the Association's president, described the situation
succinctly when he testified that the purpose of the arrangement with Bickford
was "to put these people that owned the building back to work."
That the 1953 agreement giving employment preference to Association members is
prima facie unlawful cannot be gainsaid. But I am nevertheless convinced, upon
consideration of all the circumstances, that the preference is in fact "patently refer-
able" to the preferred group's landlord interest in the factory and to their residency
in the Milford community. (See Justice Frankfurter's concurring opinion in Radio
Officers' Union v. N. L. R. B., 347 U. S. 17, 56.) These essential bases for the pref-
erence are themselves not unlawful; and as they are clearly distinguishable from the
Association's character as a labor organization," and as the record also shows that
the Association (which was organized before even the Wagner Act of 1935) was
not originally conceived or organized for the purpose of circumventing the Act,12 I
conclude upon all the foregoing that the 1953 agreement between Bickford and the
Association giving employment preference to owners of the premises and to residents
of Milford does not, in its execution and/or maintenance, encourage or discourage
membership in an organization qua labor organization and that it therefore does not
violate Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and (2) of the Act.13
I further conclude that by reason of such contract Bickford did not, and the Asso-
ciation did not cause Bickford to discharge or fail to hire the Boston employees
n An employer conducted operations on an Indian Reservation pursuant to leases with
the so-called Indian Tribal Council, under which arrangement employment preference was
given to members of the Indian tribe on the reservation. In answer to contentions that
an election in a unit including these Indian employees might impair the leases and the
employment preference to the Indian residents of the reservation, the Board stated that
"there is no necessary inconsistency between the Employer' s recognizing a labor organiza-
tion as the representative of its employees, including its Indian employees, and, at the
same time , continuing to grant preference of employment to Indians." Simplot Fertilizer
Company, 100 NLRB 771, 773; 107 NLRB 1211.
12 Compare : N. L R B. v E. C. Brown Co., 184 F. 2d 829 (C. A. 2) ; Schieber Millinery
Co., 26 NLRB 937, 962; cf. Porter v. Federated Meat Corporation, 157 F. 2d 276, 279
(C. A. 2).
11 For another like situation which was prima facie discriminatory but held to be other-
wise upon consideration of all attending circumstances , see Warner Gear Division, Borg-
Warner Corporation, 102 NLRB 1223, 1228.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawfully.14 In view of the foregoing, I also conclude that Bickford has not, by
reason of the 1953 agreement, violated Section 8 (a) (2) of the Act.15
This leaves for consideration the 8 (a) (5) portion of the case.
B. Alleged refusal to bargain
Maurice Shaer is Bickford's president and general manager. Early in 1953 Shaer
and his partners in the Boston plant had discussed relocating the enterprise, or giving
it up entirely; and in May 1953 Shaer reviewed the situation with Local 138 Repre-
sentatives John F. Mealey and Daniel J. Goggin and he advised these representatives
that Bickford would remain only one more season at Boston because of various
economic factors including the physical inadequacy of the plant.
Bickford made preliminary inquiries concerning the then vacant Milford plant in
the spring of 1953; it did nothing further in that direction until mid-October, how-
ever, when it entered into actual negotiations for the premises. A series of negotiat-
ing meetings followed and it was not until on or about December 5 that the parties
finally came to terms, whereupon they executed the aforementioned lease and collec-
tive-bargaining contract on or about December 8, 1953.16 Bickford began moving
to Milford on December 8, and it commenced operations there sometime later that
month.
Referring to a local newspaper item stating that Bickford was moving to Milford,
Local 138 Representative Goggin asked Shaer on November 3, 1953, whether the
information was correct. (Bickford had not previously advised Local 138 that it
had undertaken negotiations for the Milford factory ) Shaer replied, according to
Goggin, that the information was not true and that Bickford was not moving. Goggin
made several similar inquiries of Shaer and other management representatives later
that month and, also according to Goggin, they informed him each time either that
Bickford was not moving or that they had no knowledge concerning such move.
Shaer testified, on the other hand, that he did advise Goggin on November 3 that
Bickford was negotiating for the Milford factory and would move if satisfactory ar-
rangements could be made, but that terms had not yet been agreed upon nor a con-
tract signed. It is uncontradicted, and I find, that early in November Shaer told a
group of approximately 50 of his employees, who were inquiring concerning a plant
move to Milford, that "I told Mr. Goggin yesterday or the day before, and I can tell
you the same thing. We haven't stopped negotiating. If we conclude negotiations
we are moving. As far as signing a contract, I assure you that we have not signed a
contract." And it also appears from a conversation between Goggin and Bick-
ford's attorney (Maurice Wolf) on November 30 that Shaer had previously informed
Goggin of the Milford negotiations and that Bickford and the Milford parties had
not yet come to terms on all matters.
Local 138 Representatives Goggin and Mealey discussed the fact of the Milford
negotiations with Shaer on December 1. Shaer informed these representatives that
he had spoken with the Association at Milford but that he still had not signed any
contract with that organization. According to the testimony of Goggin and Mealey,
they asked Shaer on this occasion that Bickford give "first preference" to the Boston
personnel should Bickford move to Milford, and that Shaer replied that Bickford
had not yet formulated any policy as to Milford hiring and that he would have to
consult his partners on the matter 17 Mealey further testified that he thereupon
told Shaer that, until Shaer advised him otherwise, Mealey would assume continuance
of the status quo, namely, that no contract was signed. However, according to Shaer's
version of this meeting, Shaer advised Mealey that Bickford would probably move
and that Mealey then stated that he, Mealey, could place all the Boston personnel
la Bickford actually made offers of employment to some of its former Boston personnel,
as set forth in the following portion of this report.
15 Needless to say, I consider it immaterial in determining their lawfulness whether
particular contract provisions appear in a document labeled "Lease" or in one called "Labor
Agreement " If the hiring provisions in this case had been found unlawful under all the
circumstances, their inclusion in a so-called lease would not have changed the result.
16 Negotiations were further complicated because of an attachment the Association had
on shoe manufacturing equipment in the factory, which equipment belonged to the former
manufacturer. As Bickford desired to purchase and use this equipment in Milford, it was
necessary for Bickford to settle this matter with the Association and the former manu-
facturer.
11 Shaer had virtually exclusive control of the business at the time
BICKFORD SHOES, INC. 1363
in other jobs within 24 hours. Shaer further denied that Mealey had requested job
preference for the Boston complement.
Mealey testified without contradiction that on December 4 he asked Boston Plant
Manager Louis Kessler whether Mealey might advise the employees that they could
have jobs at Milford in the event of a move, and that Kessler replied that "nothing
has been signed; therefore, there is no need of discussing anything."
Meanwhile, shortly after Shaer advised his employees of the Milford negotiations,
as mentioned above, Bickford's employees began leaving Bickford voluntarily to
accept other employment. So that by December 1, Bickford's full working force
of approximately 280 had dwindled to approximately 50 employees. (The record
shows in this connection that there were plenty of jobs, but a shortage of labor, in
the Boston shoe industry at the time.)
Bickford executed the indenture of lease and the collective bargaining agreement
on December 8 and, without notice to Local 138 or its employees, it began moving
preparations the same day. When Mealey learned of these events, and he did so
accidentally within a day or so, he told Shaer, according to Mealey's testimony but
which Shaer denies, that Shaer had an obligation to invite his Boston employees
to Milford.
On January 12, 1954, Local 138 sent a letter to Bickford at its then operating
plant in Milford "requesting a renewal of the oral request that was made to you,
for employment of all production workers represented by Local #138 . . under
the terms of our contract . . at Jamaica Plain, Massachusetts." Bickford re-
ceived, but never did answer, this letter. The record shows that only one of Bick-
ford's Boston employees has made individual application for employment at Mil-
ford; this applicant was rejected because, according to Shaer, he wanted Shaer to
give him "the exclusive right to book bets in the factory." It appears, on the other
hand, that in the latter part of January 1954, Bickford made written offers of
employment to approximately 29 of its former Boston employees, none of whom
accepted the invitation.
Before resolving this refusal-to-bargain issue, it should be noted and perhaps
emphasized that Local 138's representatives have long known of the Association's
ownership of the Milford plant, of the Association's representative status at the
factory during the tenancy of former manufacturers, and of the established practice
at the factory to give job preference to Association members.18
Further Findings and Conclusions as to Alleged Refusal to Bargain
The 8 (a) (5) portions of the complaint against Respondent Bickford allege,
inter alia, that Local 138 has, since November 1, 1953, requested Bickford to bargain
concerning "the relocation of Respondent's plant at Milford, Massachusetts, and
the methods and conditions by which the employees might obtain employment at
the new plant " The General Counsel asserted at the hearing that he predicates
these contentions principally on the fact that Bickford was evasive in answering
Local 138's various alleged requests for information about the move and that Bick-
ford signed the Milford agreement and began moving to Milford without notice of
such fact to its employees or to Local 138.
There are many Board cases of an 8 (a) (5) determination in a context of a
move or other change in management structure or mode of operations. Unlike
the present case, however, most of these decisions involved situations where some
such change or move was motivated by a desire to avoid dealing with the labor
organization representing the employees in the former operation.19 However, in
Is There is also some conflicting testimony concerning a meeting between Attorney Wolf
and Local 138 Representatives Mealey and Goggin late in December 1953. The conflict
arises over whether their discussion at the time was in regard to "severance" pay for the
Boston employees or whether the conversation dealt solely with a vacation pay matter
19 See, for example, N. L. R. B. v. Somerset Classics, Inc., 193 F. 2d 613 (C. A. 2 ), cert.
denied 344 U. S 816; N. L. R B v. E. C Brown Co., 184 F. 2d 829 (C. A. 2) ; N. L. It. B.
v. Eva-Ray Mfg Co, Inc, 191 F. 2d 850 (C. A 5) enfg. 88 NLRB 361; N. L. It. B.
v Gerity Whitaker Co, 137 F 2d 198 (C. A. 6), enfg. 33 NLRB 393, cert. denied 318 U. S.
763, 801 ; New Madrid Manufacturing Company, a corporation, and Harold Jones, an, indi-
vidual, d/b/a Jones Manufacturing Company, 104 NLRB 117; C it D Coal Company, 93
NLRB 799 ; Rome Products Company and Kenton Plastics Corp., 77 NLRB 1217, 1219-
1220; M. M. Joffee Company, 74 NLRB 1568; Pepsi-Cola Bottling Company of Mont-
gomery, 72 NLRB 601.
334811-55-vol. 109-87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown-McLaren Manufacturing Company, 34 NLRB 984, the Board held that,
while there was no obligation to bargain as to whether an employer should move
his plant (this was in a nondiscriminatory context), the Act did require him to
bargain concerning the transfer of employees to the new site of operations. But in
Mahoning Mining Company, 61 NLRB 792, 803, an employer for nondiscriminatory
reasons contracted out part of his operations without discussing the matter with
the certified bargaining representative of the affected employees. The Board stated,
in finding no refusal-to-bargain violation, that the Board "has never held that once it
has established an appropriate unit for bargaining purposes, an employer may not in
good faith without regard to union organization of employees, change his business
structure, sell or contract out a portion of his operations, or make any like change
which might affect the constituency of the appropriate unit without first consulting
the bargaining representatives of the employees affected by the proposed business
change." [Emphasis supplied.] Recently, in Brown Truck and Trailer Manufactur-
ing Company, 106 NLRB 999, two members of the Board, with Chairman Farmer
not reaching the issue in his dissenting opinion, followed the Brown-McLaren case,
supra, and held that an employer is required to advise his employees' bargaining
representatives of contemplated moves to other locations and to give such repre-
sentatives "the opportunity to bargain with respect to the contemplated move as it
affected the employees [of the former location]."
The record shows that Bickford had had another experience of negotiating for
a plant some years before the instant case arose. Those negotiations fell through
almost at the very moment that contracts were to be signed. In view of this earlier
experience and also of the tight labor market in Boston in late 1953, Bickford was
undoubtedly mindful of the risk of losing its Boston personnel should the Milford
transaction fall through. And indeed, that is what happened; for when these em-
ployees became aware of the contemplated move, they did obtain other employment
and leave Bickford with approximately 20 percent of a full operating crew by Decem-
ber 1. An employer can have various other reasons-unnecessary of discussion here,
except to state that they may be completely divorced from union considerations-
which make it advisable and even necessary from a business point of view not to dis-
close pending business transactions. On the other hand, no argument seems required
to demonstrate the importance to employees and their bargaining representative of
being advised that their 'employer is negotiating concerning a change in operations
which may cause them to lose their jobs.
Whether or not the Act does require disclosure of pending business transactions
which may affect the tenure of employees, I am satisfied in the present case that
Bickford did advise its employees and Local 138 early in November that it had under-
taken negotiations for moving to Milford; and I find, also, that there is no substantial
record basis to show that Local 138 had ever requested Bickford to negotiate as to
whether Bickford should move.
Assuming again, but not deciding, that an employer is required to discuss with a
bargaining representative the transfer of employees from a closed plant to a new
operation at another site, I do not find an unlawful failure of such discussion in this
case. Whatever the statutory requirement is in this regard, certainly it does not
require granting employees at the former operation "first preference" for jobs at the
new site, and this is what Local 138 allegedly requested. Moreover, there is the
further fact, long known to Local 138's representatives, that the employment situa-
tion at Milford differs materially from the situation involving the Boston bargaining
unit, such differences stemming principally from the landlord and community char-
acter of the Association and the established employment reference to Association
members and to other residents of Milford and vicinity. Without agreeing to the
preferences, Bickford could not obtain a lease at Milford. As the preferences are
not unlawful, I find that Bickford was not obliged to bargain with Local 138-before
or after the preferences were formalized in a binding agreement-in derogation of
such condition of Bickford's tenancy or in later derogation of its contractual under-
takings to such effect.
Under all the circumstances, I conclude that Respondent Bickford has not violated
Section 8 (a) (5) of the Act. As none of the allegations in the complaints are
sustained, I shall recommend that the respective complaints against Bickford and the
Association be dismissed.
[Recommendations omitted from publication.]