Charles Cushman Co.

National Labor Relations Board - Board Decisions

Sep 5, 1939

15 N.L.R.B. 90 (N.L.R.B. 1939)

In the Matter Of CHARLES CUSHMAN COMPANY , SOMERSET SHOE COM-
PANY , LOWN SHOT COMPANY AND LOWN SHOES , INC., MAINE SHOES,
INC., LUMBARD SHOE COMPANY, Koss SHOE COMPANY, VENUS SHOE
COMPANY, AULT-WILLIAMSON SHOE COMPANY and UNITED SHOE
WORKERS OF AMERICA
Cases Nos. C-664 to C-668, inclusive , C-672, C-671, and C-669.-
Decided September 5, 1939
Shoe Manufacturing Industry-Interference , Restraint , and Coercion--Unit
Appropriate for Collective Bargaining: determined by previous Decision of
Board-Representatives : proof of choice : previous Decision of Board certifying
the Union ; eligibility to participate in choice : procedure 'by affidavits found
valid because of refusal of respondent to furnish pay rolls-Collective Bargain-
ing: refusal to bargain . with the Union that, had been certified as exclusive
representative by the Board on the ground' that the Board's certification was
invalid-Certification: Union certified despite omission of "or neither" from the
ballot and failure of majority of eligible employees to vote; contracts entered
into with rival organization both before and after certification held not to
impair the status of the Union as representing a majority of the employees-
Employer : successor corporation bound by certification of employees of prede-
cessor corporation ; ordered to bargain although refusal to bargain was made
by predecessor corporation. i)
Mr. Edward Schneider, for the Board.
Skelton and Mahon, by Mr. John J. Mahon, of Lewiston, Maine,
and Messrs. George C. and Donald W. Webber and Mr. David V.
Berman, of Auburn, Maine, on behalf of all the respondents.
Mr. A. Raymond Rogers, of Waterville, Maine, and Mr. Leo Good-
man, of Washington, D. C., for the Union.
Mr. Frank W. Linnell, of Auburn, Maine, for the Association.
Mr. David Rein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
In April 1937, United Shoe Workers of America, herein called the
Union, filed petitions with the Regional Director for the First Re-
gion (Boston, Massachusetts ), alleging that questions affecting com-
merce had arisen concerning the representation of the production
15 N. L . R. B., No. 15. J
90
CHARLES CUSHMAN COMPANY 91
employees in the Auburn, Maine, plants of the Charles Cushman
Company, Somerset Shoe Company, Lown Shoe Company, Maine
Shoes, Inc., Lumbard Shoe Company, Koss Shoe Company, Venus
Shoe Company, and Ault-Williamson Shoe Company, herein referred
to collectively as the respondents,, and requesting investigations and
certifications of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
A hearing was conducted on these petitions before a Trial Exam-
iner duly designated by the National Labor Relations Board, herein
called the Board, from May 24 to June 15, 1937, at Auburn, Maine, at
which hearing Lewiston and Auburn Shoe Workers Protective Asso-
ciation, herein called the Association, appeared as an intervenor. At
the close of the hearing and after examining the record in the case,
the Board concluded that a question affecting commerce had arisen
concerning the representation of the shoe workers, excepting clerical
and supervisory employees, employed in the production departments
of the plants of each of the respondents and on the basis of such con-
elusion and acting pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
issued .a. Direction for Elections on June 23, 1937.2 The Board found
.that said employees in the case of each of the respondents, respec-
tively, constituted a unit appropriate for the purposes of collective
bargaining and directed the Regional Director for the First Region
to conduct elections by secret ballot to determine whether such em-
ployees wished to be represented by United Shoe. Workers of America
or by Lewiston and Auburn Shoe Workers Protective Association for
the purposes of collective bargaining.
The elections were conducted from July 13 to 17, 1937. At the
close of the elections, objections to the conduct of the ballot and to
the Regional Director's Intermediate Report were filed by the re-
-spondents and the Association. A hearing on these objections was
conducted on August 5 and 6, 1937, in Auburn, Maine, by the Trial
Examiner duly designated by the Board. Upon the close of this
hearing and after examining the record in the case, the Board on
August 30, 1937, issued a Decision and Certification of Representa-
tives, overruling the objections to the Regional Director's Interme-
diate Report and certifying the Union as the exclusive bargaining
representative of the shoe workers, excepting clerical and supervisory
1 Lown Shoes , Inc., which is also a respondent in the present proceeding , was not
organized until November 23, 1937, and thus was not in existence at the time . The term
respondents , however, should be taken to include Lown Shoes, Inc., except where obviously
inapplicable . See footnotes 4 and 7.
. 2 2 N. L . R. B. 1015. The hearing and the Direction for Elections covered other com-
panies in addition to the respondents , namely, B. A. Corbin & Sons and C. V. Watson
Company, both of Auburn , Maine, and Mascott Shoe Co., Inc. and Holmes-Bohr Company,
both of Lewiston , Maine. The Direction for Elections was amended on July 12 . 1937, in
a particular not here important.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, employed in the production departments of the Auburn,
Maine, plants of each of the respondents.8
Subsequently, upon charges duly filed by the Union on October 26,
1937,4 the Board, by A. Howard Myers, Regional Director, issued its
separate complaints dated February 10, 1938,6 against each of the
respondents alleging that each of the respondents had engaged in
and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (5) and Section 2 (6}
and (7) of the Act, in that each of the respondents on or about Sep-
tember 7, 1937, and at all times since that date had refused to bar-
gain collectively with the Union as the exclusive representative of
the shoe workers, excepting clerical and supervisory employees em-
ployed in the production departments of each of the respondents.
The respective complaints and accompanying notices of hearing were
duly served upon each of the respondents, and each of the respon-
dents filed separate answers to the complaints in 'which they denied
that they had engaged in unfair labor practices.
On February 15, 1938, the Board issued an Order of Severance
and Amendment to the Order of Consolidation, severing from the
cases involving the respondents, the cases of those companies named
in the Order of Consolidation but who are not respondents in the
present proceeding.,' The Order further provided that the designa-
tion of the respondent Lown Shoe Company should be amended to,
read Lown Shoe Company and Lown Shoes, Inc.' On February 16,
1938, the Association filed separate motions to intervene with respect
to each of six of the respondents alleging that it had entered into a
written contract with each of these respondents covering hours, wages,
and working conditions of all its production employees.8 The mo-
tions were granted. These rulings are. hereby affirmed.
Pursuant to notice, a hearing was held at Auburn, Maine, on Feb-
ruary 21, 1938, before Henry W. Schmidt, the Trial Examiner duly
designated by the Board. The Board, the respondents, the Associa-
tion, and the Union were represented by counsel and participated in,
8 2 N. L. R. B. 1017.
An Amended Charge against Lown Shoe Company and Lown Shoes , Inc., its successor,
was filed by the Union on February 10, 1938.
6 On November 9, 1937, the Board acting pursuant to Article II, Section 37 (b), of
National Labor Relations Board Rules and Regulations-Series 1, as amended , ordered,
these cases as well as those involving certain other companies consolidated.
6 The companies whose cases were severed are C. V. Watson Company, Mascott Shoe Co.,
Inc., and Holmes-Bohr Company . The order of February 15 continued the case of B. A.
Corbin & Sons as one of the consolidated cases. However , at the hearing , the complaint
against B. A. Corbin & Sons was dismissed without prejudice upon motion of Board
Counsel.
4 See footnote 4. The complaint against this respondent used the amended designation.
S The respondents for which motions to intervene were filed are 'Charles Cushman
Company, Somerset Shoe Company , Lown Shoe Company and Lown Shoes, Inc., Maine
Shoes, Inc., Lumbard Shoe Company , and Ault-Williamson Sboe Company.
CHARLES CUSHMAN COMPANY' 93
the hearing.' Full opportunity to be heard, to examine and cross-
.exa.mine witnesses, and to produce evidence bearing upon the issues
was' afforded to all parties. At the close of the Board's case and
.again at the conclusion of the hearing, the respondents moved to dis-
miss the complaints on the ground that the evidence' failed to show
any violation of the Act by the respondents. These motions were
denied by the Trial Examiner, whose ruling is hereby affirmed.
At the hearing, the Trial Examiner granted motions of Board
.counsel to strike the evidence as to certain contracts and cards filed
pursuant thereto on the ground that they related to matters already
considered and determined by the Board in its Decision and. Certi-
fication of August 30.10 We are of the opinion that this evidence is
relevant and material to the issues in these proceedings and hence
should have been admitted. Accordingly, we hereby overrule the
ruling of the Trial Examiner striking this evidence from the record,
and hereby incorporate the evidence so stricken as part of the record
in these proceedings. During the course of ' the hearing, the Trial
Examiner made various other rulings on motions and on objections
to the 'admission of evidence. The Board has reviewed these rulings
and finds that no prejudicial errors were committed. All these rulings
are hereby affirmed.
On May 16, 1938, the Trial Examiner filed an Intermediate Re-
port, copies of which were duly served upon all the parties, finding
that the respondents had engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (1)' and (5) and Section
'2 (6) and (7) of the Act and recommending that each of the re-
spondents cease and desist therefrom and bargain collectively with
the Union as the exclusive representative for its production employees,
,excepting clerical and supervisory employees. Exceptions to the
Intermediate Report were filed by the respondents on June 2, 1938,
and by the Association on June 3, 1938. On August 13, 1938, pur-
suant to notice duly served upon the respondents, the Association, and
the Union, a hearing was held in Washington, D. C., for the purpose
of oral argument. The respondents and the Union appeared by
counsel and presented oral argument to two members of the Board.
Owing to the subsequent expiration of the term of one of the mem-
bers of the Board who sat at this oral argument, the parties were
granted an opportunity to request further oral argument. Pursuant
to notice to all parties; further oral argument, at which the respond-
ents and the Union appeared, was.held on July 27, 1939. The Board
has reviewed the exceptions of the respondents and the Association
to the Intermediate Report and, in so far as they are inconsistent
G The respondents were jointly represented by counsel.
102 N. L. R. B. 1017.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the findings, conclusions, and order set forth below, finds no
merit in them.
Upon the entire record in the case, the Board makes the following.:
FINDINGS OF FACT
1. THE RESPONDENTS AND THEIR BUSINESSES
A description of the nature of the businesses of the respondents
and the interstate character of such businesses is set out fully in the
Board's previous Decision Yl That Decision was introduced into evi-
dence and incorporated into the record of this proceeding as an ex-
hibit. We find and incorporate herein the facts relating to the busi-
nesses of each of the respondents as detailed in our previous Decision
II. THE ORGANIZATIONS INVOLVED
The United Shoe Workers of America is a labor organization
affiliated with the Committee for Industrial Organization.
The Lewiston and Auburn Shoe Workers Protective Association is
an incorporated labor organization not affiliated with any national
union.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
In our previous Decision we found that the shoe workers, except-
ing clerical and supervisory employees employed in the production
departments of the Auburn, Maine, plants of each of the respond-
ents, respectively, constituted an appropriate unit. None of the par-
ties contend that this finding should be altered and we see no reason
to depart therefrom.
Accordingly, we find that the shoe workers, excepting clerical
and supervisory employees, employed in the production departments
of the Auburn, Maine, plants of each of the respondents, respectively,
constitute a unit appropriate for the purposes of collective bargain-
ing, and that said unit insures to employees of the respondents the
full benefit of their right to self-organization and to collective bar-
gaining and otherwise effectuates the policies of the Act.
B. Representation by the Union of a majority in the appropriate unit
In our previous Decision we certified the Union as the exclusive
representative of the employees in each of the appropriate units.
112 N. L. R. B. 1021-1026. Lown Shoes, Inc., was not a party to the previous proceed=
ings but succeeded to the business and property of Lown Shoe Company, whose business is
therein described . See infra.
CHARLES CUSHMAN COMPANY 95
. We find that on August 30, 1937, and at all times thereafter, the
Union was the duly designated representative of a majority of the
employees in each of the appropriate units, and that by virtue of
Section 9 (a) of the Act, was the exclusive representative of all the
employees in each of the units for the purposes of collective
bargaining.
C. The refusal to bargain
Within a week after receipt of the Board's Decision certifying the
Union as the exclusive bargaining representative for the production
employees, excepting clerical and supervisory employees, of each of
the respondents, the Union, by registered mail on September 7, 1937,
sent the following letter to each of the respondents, which was re-
ceived by them on or about September 8, 1937:
SEPTEMBER 7 , 1937
DEAR SIR : Under date of August 30, 1937, the National Labor
Relations Board in Cases Nos. R-161-172, inclusive, involving
your Company and the United Shoe Workers of America,
handed down the following decision :
"It is hereby certified that the United Shoe Workers of
America has been selected by a majority of the shoe workers,
excepting clerical and supervisory employees, employed in the
production departments of the Auburn or Lewiston plants,
respectively, of the (name of respondent to which letter ad-
dressed) as their representative for the purposes of collective
bargaining and that pursuant to Section 9 (a) of the National
Labor Relations Act, United Shoe Workers of America is the
exclusive representative of all such employees of each of such
Companies, respectively, for the purposes of collective bargain-
ing in respect to rates of pay, wages, hours of employment, and
other conditions of employment."
Since our organization has been so certified, we respectfully
request recognition as the exclusive representative of the em-
ployees of your company, and also request a conference to dis-
cuss with your company, rates of pay, wages, hours of employ-
ment, and other conditions of employment of your employees,
in accordance with the provisions of this decision.
May we hear from you immediately on this matter?
Yours very truly,
UNITED SHOE WORKERS OF AMERICA.
By PowERS HAP00OD, Director.
Following upon. this letter, a: representative of the Union, called
upon an officer of each of the respondents during the period from
September 10 to 14. In each instance it was suggested to the
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's representative that he see the attorneys who were jointly
representing the respondents. This information was communicated
to A. Raymond Rogers, attorney for the Union, who, on September
16, 1937, called upon David V. Berman, one of the attorneys for the
respondents. Berman informed him that he could give no statement
as to the position of the respondents until he had conferred with
his colleagues, Mahon and the Webbers. It was agreed, however,
that a conference would be held between Rogers and attorneys for
the respondents on' the following Monday.
The time for the conference was left indefinite, and there is some
conflict in the testimony as to who was to be responsible for calling
the other. In any event, on the following Monday neither one of
the parties communicated with the other and no conference was held.
However, on the evening of that day, Rogers met Mahon, who acted
as senior counsel for the purpose of these cases, in a restaurant, at
which time Mahon told Rogers that the respondents did not recognize
the certification of the Board as valid and intended .to take the case
to the highest court. At a subsequent meeting between Rogers and
Mahon, on the steps of the courthouse in Auburn, Mahon, in reply
to a request by Rogers as to the position of the respondents toward
the claim of the Union that it be recognized as the exclusive bargain-
ing agency, said that he would not give "a formal no for fear there
might be legal implications attached to it."
The letters of September 7 were answered in a single reply dated
September 21, 1937, and signed by Skelton and Mahon, George C.
and Donald W. Webber, and Berman and Berman, as attorneys for
all the respondents. The answer merely acknowledged receipt of the
Union's letters but contained no statement in response to the request
of the Union that it be recognized as exclusive bargaining repre-
sentative.
Officials of several of the respondents testified that although they
sent the union representatives to see their attorneys, they never
instructed their attorneys to bargain with the Union but merely
instructed them to listen to what the Union had to say and to report
back. They further testified that their attorneys had informed them
that there was some legal question involved, and that they would not
recognize the certifications as valid until this legal question had been
settled.
It is plain from the exchange of letters between the Union and
the respondents, the statements of the respondents' counsel, and the
testimony of officials of several of the respondents, that upon
request the respondents refused to meet or deal with the Union as
the exclusive bargaining representative of their employees in an
appropriate unit. The respondents contend that at most the evi-
CHARLES CUSHMAN COMPANY 97
dente contains only informal statements by Mahon on occasions when
Mahon was not acting in his capacity as attorney for the respondents.
The' evidence concerning the respondents' position with respect to the
Union might not be unequivocal if it were limited to informal state-
ments of counsel, but, as we have seen, it is not so limited. The
allegedly informal statements, taken in conjunction with the other
evidence, conclusively establish the respondents' determination not
to recognize or deal with the Union. If, after the Board's certifica-
tion, the respondents had any intention of bargaining with the
Union, every opportunity was presented to them by the Union to meet
in negotiations in the manner that is customary between employers
and employees who desire to bargain collectively in accordance with
the provisions of the Act. This, they consistently refused to do.
We find that on September 21, 1937, and at all times thereafter, the
respondents refused- to meet with or recognize the Union as the
exclusive representative of their employees in appropriate bargain-
ing units.
While the respondents do not. admit their refusal to recognize or
meet with the Union, they advance a number of reasons why they
were assertedly under no obligation to do so. The respondents con-
tend that the Board's certification of the Union as the bargaining
representative of their respective employees was invalid. In support
of this contention, the respondents renew all the objections to the
election which were made and considered by us in the prior pro-
ceeding. We have reconsidered these objections and find them with-
out merit. Since in our previous Decision we discussed in detail
most of the objections and our reasons for overruling them, we will
not restate either here, except in so far as it may be desirable to
explain our reasons more fully in this Decision.
Among the objections was one directed to the form of the ballot,
which provided for a choice between the Union and the Association.
The respondents attack the adequacy of the ballot to determine the
wishes of the employees because of the absence of a space on the
ballot for the rejection of both organizations. The respondents
contend in addition that the certifications are invalid since less than
a majority of the eligible employees participated in the election upon
which they were based. '12
With respect to the first contention, since the elections in issue were
conducted, the Board has adopted the practice where more than one
labor organization is involved of including a space on the ballot for
the rejection of both or all of the competing labor organizations.'
Although the Board adopted this practice because of its belief that
13 This was true with respect to all of the respondents except Koss Shoe Company and
Venus Shoe Company.
II See Matter of American France Line, etc., 3 N. L. R. B. 64.
98 DECISIONS OF NATIONAL LABO1t RELATIONS BOARD
it was the preferable procedure,14 we did,not thereby hold that it was
the only possible procedure sanctioned by the Act or that the previous
elections conducted by the Board under another procedure were
thereby invalidated. On the contrary, we hold that the procedure
employed in the instant case for the investigation and certification of
representatives provided for in Section 9 (c) of the Act was both
appropriate and proper'.15 There has been no showing by any of
the parties in this case that the omission of a space for the rejection
of both labor organizations in any way altered the results of the
voting, nor has any proof been offered that employees abstained from
the polls for that reason.
Further, as we have found in our previous Decision, the Associa-
tion, although accorded a place on the ballot, instituted a deliberate
boycott of the election designed to impair its secrecy. By reason
of this boycott any employee appearing at the polls was readily
marked as a union adherent. We have heretofore held that such a
boycott could not be permitted to deprive employees of the oppor-
tunity to select a collective bargaining representative through resort
to the election machinery provided by the Act, and that we would
certify as the exclusive bargaining agency the labor organization
receiving a majority of the votes cast,. even though, because of the
boycott, this was not a majority of those eligible to vote.l"
Five of the respondents17 renew their objections to the elections on
the ground that prior thereto they had entered into exclusive bargain-
ing contracts with the Association, which contracts constituted a bar
to the determination of representatives by the Board."' In our prior
Decision we found that these contracts were made with the Association
during the pendency of the representation proceeding at a time when
it was doubtful whether the Association represented a majority of the
employees in the respective appropriate units and hence offered no bar
14 See Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel,
and Tin Workers of North America, Local No. 1657, 4 N. L. R. B. 55,
15 An election conducted by the National Mediation Board under the Railway Labor Act
with a ballot similar to the one used in the present case was upheld by the Supreme
Court in Virginian By. Co . Y. System Federation No. 40, 300 U. S. 515 (1937). The facts
in the case are set out in the lower court decision in 11 F. Supp . 621 (E. D. Va. 1935).
Compare the court 's opinion in International Brotherhood of Electrical Workers et al. V.
National Labor Relations Board ( C. C. A. 6th, June 28, 1939).
18 See Matter of R. C . A. Manufacturing Company, Inc. and United Electrical and Radio
Workers of America , 2 N. L. R . B. 168 . See also Virginian By. Co . v. System Federation
No. 40, 300 U. S. 515 (1937).
11 These five are Charles Cushman Company , Somerset Shoe Company , Lown Shoe Com-
pany and Lown Shoes, Inc ., Maine Shoes , Inc., and Ault -Williamson Shoe Company.
11 One of these contracts ( Lown Shoe Company and Lown Shoes , Inc.) Is in terms a
closed-shop contract , while all the contracts contain an identical clause as follows :
The Employer agrees that it will make it a condition of employment that any
shoe worker employed by it will acknowledge in writing , his or her intention to
abide by the rules and laws of the Association during the time of his or her
employment.
CHARLES CUSHMAN COMPANY 99
to a determination of representatives by the Board."' In the present
proceeding, officials of each of these five respondents testified that
subsequent to the execution of the contracts all or almost all of their
employees had signified their choice of the Association as their collec-
tive bargaining representative by signing, and filing with their respec-
tive employers, cards requesting the respondents to deduct from their
pay envelopes a sum for dues to be paid over to the Association. The
respondents do not contend that such cards showed a change in
employee allegiance since the date of the certifications by this Board,
but contend rather that there has been a continuing majority for the
Association extending from some date prior to the execution of the
contracts. Since these cards were signed and filed subsequent to the
execution of the contracts, they are not in any degree probative of the
,desires of the signers of the cards upon the date of the execution of
the contracts. Furthermore, since the cards were filed pursuant to
contracts requiring a written acknowledgement of an employee's inten-
tion to abide by the rules and laws of the Association as a requisite
for employment, the cards cannot be accorded weight as evidence of
the voluntary wishes of the employees.20
A similar contention to that which we have just discussed is made
by Lumbard Shoe Company, which also offered in evidence a contract
and cards filed pursuant thereto, of the nature described above. In
this instance, however, the contract was dated January 13, 1938, about
41/2 months after the date of the certification issued by the Board.
19 See Matter of American -West African Line , Inc. and National Marine Engineers'
Beneficial Association, 4 N. L. R . B. 1086; Matter of Wilmington Transportation Com-
pany and Inland Boatmen's Union of the Pacific, San Pedro Division, 4 N. L. R. B. 750.
20 Immediately following the clause quoted in footnote 18, the Ault -Williamson Shoe
Company contract contains the following clause :
The Employer further agrees to deduct from the weekly salaryor wages of each
Association ' member or employee ( italics ours ), the sum of fifteen (15) cents,
after they have been authorized to do so by said employees in writing, his or her
intention to abide by the rules and laws of the Association during the time of his
or her employment.
Although this clause in the other contracts does not contain the closing phrase "his
-or her intention . . . his or her employment ," the omission of this phrase obviously does
not alter the meaning of the clause.
The contract with Lown Shoes , Inc., which as pointed out in footnote 18 is in terms a
,closed -shop contract , does not contain this clause at all, but does contain the clause quoted
in footnote 18.
The cards state that they have been filed with the knowledge that the Association has
already been recognized by the employer . They read as follows :
The undersigned , an employee of --- knowing that the Lewiston and Auburn
Shoeworkers Protective Association has been recognized as the bargaining agency
for all the employees of the above named company , I hereby authorize said Lewiston
and Auburn Shoeworkers Protective Association to bargain for me with my said
employer with respect to hours , wages and working conditions . I further agree
to abide by the rules and laws of the Lewiston and Auburn Shoeworkers Protective
Association during the term of my employment.
I further authorize my said employer to deduct from my weekly wages the sum
of 15 cents and pay the same to the Treasurer of the Lewiston and Auburn Shoe-
-workers Protective Association until further notice.
100 DECISIONS OF I1-ATIONAL LABOR RELATIONS BOARD
The contract, therefore, was entered into with knowledge of the cer-
tification, and there is no showing that at the time of its execution, the
Association represented a majority of the employees in the appro-
priate unit. In the absence of such a showing, the contract must be
regarded as having been entered into in disregard of the Board's cer-
tification, at a time when the Association was not the choice of a,
majority of the employees of Lumbard Shoe Company, and we so
find. The cards filed with Lumbard Shoe Company pursuant to the
contract and subsequent to its execution cannot be accorded weight as
evidence of a voluntary choice of representatives by its employees for
the same considerations upon which we denied such value to the cards
filed with the other, five respondents.21
A further objection to the elections advanced by the respondents
and reiterated by them at oral argument relates to the use of affidavits
by the Regional Director in the conduct of the elections. Because of
the refusal of the respondents to furnish the Regional Director upon.
appropriate request with pay rolls for the purpose of the elections,
the Regional Director employed 'the procedure of permitting persons.
to vote by signing affidavits that they were employees as of the eligi-
bility date set by the Board. All parties were permitted watchers to
challenge any person executing a false affidavit, but no evidence has
been produced to show that any person voted who was not eligible to
do so. . The respondents now contend that the whole proceedings were
illegal because of the use of these affidavits, although at all stages they
refused to assist the Board, either by providing pay rolls or by fur-
nishing any evidence to the effect that any non-employees actually
voted at the elections. The only alternative suggested by the respond-
ents is that the Board should have instituted a proceeding against them
in a Federal District Court to enforce a subpena for their pay rolls,.
and thus have submitted the issue of the eligibility date to preliminary
determination by the courts before proceeding with the election.
The procedure adopted by the Regional Director was proper.
Adequate safeguards were provided to prevent voting by non-em-
ployees. The objection is without merit.
One of the respondents, Lown Shoes, Inc., the successor to Lown
Shoe Company, was not formed until November 23, 1937, which was
21 The provision in the Lumbard Shoe contract requiring membership in or adherence-
to the rules of the Association is more explicit than that in any of the other contracts;
we have reviewed. It reads as follows :
the Employer agrees to hire as shoeworkers only members of the Asso-
ciation in good standing and further agrees not to retain any shoeworker in its
employment after receiving notice from the Association that such shoeworker is
objectionable to the Association for disobedience of the Association rules or laws,
or on account of being in arrears for dues.
Exception is made, however , for any employee Who either ' on account of religious affilia-
tion or because of well-founded objection to belonging to any labor union . . . does not
desire to become a member of this Association."
CHARLES CUSHMAN COMPANY 101
after the date of the alleged refusal to bargain. It was its predeces-
sor, Lown Shoe Company, that had been a party to the certification
proceedings and had, as we have found, refused in September 1937 to
meet with and recognize the Union as the exclusive representative
of its employees in an appropriate unit. It was stipulated at the
hearing that Lown Shoe Company had not been a separate corpora-
tion but had been a branch of the Philco Shoe Corporation '22 and
that on November 23, 1937, a new corporation, Lown Shoes, Inc., was
formed and all the property, assets, machinery, and equipment owned
by the Philco Shoe Corporation at its branch in Auburn, Maine, were
transferred to the new corporaation.2-1 In exchange for such property,
Lown Shoes, Inc., issued stock to the stockholders of Philco Shoe
Corporation in the same ratio as their existing stockholdings in the
latter corporation, and Lown Shoes, Inc., assumed that proportion of
the indebtedness of Philco Shoe Corporation which could be attrib-
uted to the operation of the branch, Lown Shoe Company in Auburn,
Maine. The employees of Lown Shoe Company continued as em-
ployees of Lown Shoes, Inc., unaffected in wages, hours, and working
conditions by the corporate reorganization. In fact, a contract be-
tween Philco Shoe Corporation and the Association governing
wages, hours, and conditions of employment of the employees of
Lown Shoe Company was assumed by Lown Shoes, Inc. The stock-
holders of the two corporations are identical '24 providing a continuity
of ownership, and there is a substantial identity in directors and
officers '25 insuring a continuity of management.
We find that Lown Shoes, Inc., is the successor of Philco Shoe Cor-
poration (Lown Shoe Company) and that as such successor it stands
in the place of its predecessor for the purposes of this proceeding.26.
Upon the basis of all the above findings, and after consideration
of all the contentions of the respondents, we find that in September
1937 and at all times thereafter, each of the respondents refused to
22 Although Lown Shoe Company was not a separate corporate entity, Philco Shoe
Corporation in fact participated in the proceedings leading to the Decision and Certifi-
cation of Representatives , under its branch name , Lown Shoe Company. Compare Matter
of The Timken Silent Automatic Company, a corporation and Earl P. Ormsbee, Chairman,
Executive Board Oil Burner Mechanics Association, 11 N. L. R. B. 901.
23 It was agreed that no intent to evade the Board's Decision of August 30 motivated:
this reorganization.
22 This was true at the time of the formation of Lown Shoes , Inc. Since that time,
however, there have been two transfers of stock, one to Nicholas Grossman , the former
head salesman of Lown Shoe Company.
26 The directors of Lown Shoes, Inc., are Nicholas J. Grossman, former head salesman
of Lown Shoe Company, Philip N. Lown, chief stockholder and a director in Philco Shoe
Corporation , and Nison Lown. These same three individuals constitute all the officers
of Lown Shoes, Inc.
22 Compare Matter of The Timken Silent Automatic Company, a corporation and Earl
P. Ormsbee, Chairman, Executive Board, Oil Burner Mechanics Association, 11. N. L. R. B.
901, where we said, "By assuming all the obligations and liabilities of the respondent
with notice of this proceeding , it stands in exactly the same position as the respondent,.
and should be required to comply with our order."
199549-39-vol. 15-8
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively with the agency certified as the exclusive repre-
sentative of its employees for the purposes of collective bargaining,
and thereby has interfered with, restrained, and coerced its employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of each of the respondents set forth in Section III
above, occurring in connection with the operations of each of the
respondents 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 and have led to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
We have found that each of the respondents refused to bargain
collectively with the Union which had been certified as the exclusive
bargaining representative of its employees in an appropriate unit.
We shall, therefore, order each of the respondents to cease and desist
from such refusal to bargain and from other unfair labor practices
and to bargain with the Union upon request as the exclusive represen-
tative of its employees in an appropriate unit. Although there may
have been a loss of majority by the Union in the lapse of time since
the refusal to bargain, we will, nevertheless, require the respondents
to bargain with the Union at this time. We have previously held
that a decrease in union membership attributable to a respondent's
refusal to deal with a union .designated as bargaining representative
by a majority of its employees in an appropriate unit cannot be
offered as a justification for a continued refusal to deal with such
union.27
The respondent, Lown Shoes, Inc., contends that since it was not
a party to the proceedings leading to the certification, the certifica-
tion is not indicative of its employees' choice of a bargaining repre-
sentative. Where, as here, however, the change in corporate organi-
zation is merely nominal, and the ownership, management, business
operations, physical equipment, and employees remain the same, it
finding by the Board as to the choice of a bargaining representative
27 See Matter of Continental Oil Company and -Oil Workers International Union, 12
N. L. R. B. 789; Matter of Lady Ester lingerie Corp. and International Ladies
Garment Workers Union-Affiliated with the Committee for Industrial Organization, 10
N. L. R. B. 518. Compare Matter of Arthur L. Colten and A. J. Colman, co-partners
doing business as Kiddie Hover Manufacturing Company and Amalgamated Clothing
Workers of America, 6 N. L. R. B. 355, Board Order enforced by the Sixth Circuit on
June'28, 1939, 105 F. (2d) 179. Compare also N. L. R. B. v. Biles-Coleman Lumber Co.,
96 F. (2d) 197 (C. C. A. 9th, 1938) : and Brotherhood of Railztalf Clerks v. Texas R
N. O. R. Co., 24 F. (20) 426 and 25 F. (2d) 873 (S. D. Tex., 1928), affirmed 33 F. (2d)
13 (C. C. A. 5th, 1929), affirmed 281 U.S. 548 (1930).
CHARLES. CUSHMAN COMPANY 103
by the employees of a predecessor corporation must, in the absence
of a showing of a different selection of bargaining representatives,
be held to obtain as against the successor corporation.28 To hold
otherwise would be to nullify without reason a valid selection of a
collective bargaining representative by such employees and would,
in so doing, defeat rather than effectuate the policies of the Act. We
are of the opinion that the certification by the Board of the Union as
the exclusive bargaining representative for the employees of Lown
Shoe Company in the appropriate unit, operates, in the absence of a
showing of a change in the choice of representatives, as a finding that
the Union has been, since November 23, 1937, the exclusive represent-
ative of the employees of Lown Shoes, Inc., in the appropriate unit,
and we so find.
In the present case, a charge was filed against Lown Shoes, Inc.,
it was served as a party in the complaint, and it appeared at the
hearing and defended. We may, therefore, issue an order directly
against Lown Shoes, Inc.29 Since we have found that the Union
represents a majority of the employees of Lown Shoes, Inc., in an
appropriate unit, we will therefore order Lown Shoes, Inc., to bar-
gain collectively with the Union as the exclusive representative of
its employees.
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following:
CONCLUSIONS OF LAW
1. United Shoe Workers of America is a labor organization within
the meaning of Section 2 (5) of'the Act.
2. Lown Shoes, Inc., is the successor of Philco Shoe Corporation
(Lown Shoe Company) and as such successor stands in the place
of Philco Shoe Corporation (Lown Shoe Company) for the purposes
of this proceeding.
3. The shoe workers, excepting clerical and supervisory employees,
employed in the production departments of the Auburn, Maine,
plants of each of the respondents, respectively, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
4. United Shoe Workers of America was on August 30, 1937, and
at all times thereafter has been the exclusive representative of the
employees in each of such units for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act.
n That the continuity in labor relations was recognized by Lown Shoes, Inc., is shown
by its assumption of the contract governing employment conditions which Philco Shoe
Corporation had entered into with the Association.
29 Compare National Labor Relation8 Board v. Hopwood Retinning Company, 98 F. (2d)
97 (C. C. A. 2d, 1938).
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. United Shoe Workers of America was on November 23, 1937,
and at all times thereafter has been the exclusive representative of
the shoe workers, excepting clerical and supervisory employees, em-
ployed in the production department of Lown Shoes, Inc.
6. By their refusal to bargain collectively with United Shoe Work-
ers of America as the exclusive representative of the shoe workers,
excepting clerical and supervisory employees, employed in their re-
spective production departments of their Auburn, Maine, plants,
each of the respondents has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (5) of the. Act.
7. By interfering with, restraining,. and coercing their respective
employees in the exercise of the rights guaranteed in Section 7 of the
Act, each of the respondents has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that each
of the respondents, Charles Cushman Company, Somerset Shoe Con=
pany, Lown Shoes, Inc., Maine Shoes, Inc., Lumbard Shoe Company,
Koss Shoe Company, Venus Shoe Company, and Ault-Williamson
Shoe Company, and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Shoe Workers
of America as the exclusive representative of the shoe workers, ex-
cepting clerical and supervisory employees, employed in the produc-
tion department of its Auburn, Maine, plant ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining and other
mutual aid and protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Shoe Workers
of America as the exclusive representative of the shoe workers, ex-
cepting clerical and supervisory employees, employed in the produc-
tion department, of its Auburn, Maine, plant, in respect to rates of
pay, ° wages, hours of employment, and other conditions of
employment;
CHARLES CUSHMAN COMPANY 105
(b) Immediately post notices in conspicuous places., and maintain
such notices for a period of at least sixty (60) consecutive days,
throughout its plant or plants in Auburn, Maine, stating with respect
to each of the respondents therein :
(1) That it will cease and desist in the manner set forth in para-
graphs 1 (a) and (b) of this Order, and
. (2) That it will bargain collectively with United Shoe Workers
of America as the exclusive representative of the shoe workers, ex-
cepting clerical and supervisory employees, employed in the produc-
tion department of its Auburn, Maine, plant;
(c) 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.
0