Clark Shoe Co.

National Labor Relations Board - Board Decisions

Mar 9, 1950

88 N.L.R.B. 989 (N.L.R.B. 1950)

In the Matter of CLARK SHOE COMPANY and UNITED SHOE WORKERS
OF AMERICA, CIO
Case No°1-CA-¢.Decided March 9,1950
DECISION
AND
ORDER
On November 4, 1949, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above-entitled proceeding finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
.and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds, and Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions and
brief, and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner."
I The Respondent takes the position that the Trial Examiner cannot hold himself bound
by the Board 's findings in the prior representation case; that it is entitled to an "inde-
pendent determination " by the Trial Examiner of the issues decided in the R case; and
that under Section 7 ( b) (8) of the Administrative Procedure Act, the Trial Examiner
should make such a determination because he is authorized to "make decisions or recom-
mend decisions ." We agree with the Trial Examiner that unless there is evidence which
was newly discovered or unavailable to the Respondent at the time of the representation
hearing, it cannot be permitted to relitigate in the instant proceeding the question of
majority or the appropriate unit . ( See cases cited on page 996 of the Intermediate Report.)
Nor do we find anyhing in the Administrative Procedure Act which supports the Respond-
ent's position.
The Respondent further contends that the Trial Examiner erred in refusing to admit
evidence of the association -wide scope of the union organizing drive which was initiated
after the hearing in the representation case. It argues that this evidence was clearly
unavailable to the Respondent at the hearing on the representation case and therefore
was properly admissible in the present proceeding . The Board twice after the election
had before it an account of the Union 's organizing drive as presented in briefs submitted
in support of the Employer 's "Petition to Vacate Election and Reopen Record for Evi-
dence as to the Appropriate Unit" and the subsequent "Motion to Reconsider Decision
88 NLRB No. 178.
989
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the Respondent has refused to bargain collectively
in violation of Section 8 (a) (5) of the Act, and has thereby interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. We shall order the Re-
spondent to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
ORDER' 0
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Clark Shoe Company,
Auburn, Maine, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Shoe Workers
of America, CIO, as the exclusive representative of all production and
maintenance employees of Respondent, including firemen, boilermen,
and elevator men, but excluding office clericals, professional employees,
guards, and supervisors;
(b) In any manner interfering with the efforts of United Shoe
Workers of America, CIO, to bargain collectively with it in behalf
of the employees in the aforesaid appropriate unit.'
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, CIO, as the exclusive representative of all employees in
on Appropriate Unit." The Trial Examiner, therefore, did not commit error in excluding
evidence as to the organizing drive. Moreover, while the Board ruled that the Employer's
two post-election pleas were untimely, the Board in a series of representation cases
involving the same unit issue, the same union, and the same employers' association, con-
sidered, among other factors, the organizing drive and nevertheless decided in favor of
single-employer units. Belle-Moe, Inc., 81 NLRB 6; Lumbard Watson Company, 1-RC-519 ;
Panther Moccasin Mfg. Co., Inc., 1-RC-521 ; Koss Shoe Company, Inc., 1-RC-632.
The Respondent also wrongly contends that the Board never had occasion to overrule
the first of the Respondent's three objections to the conduct of election and that it was
therefore incumbent upon the Trial Examiner to rule thereon. From the Order, dated
November 2, 1948, directing a hearing on objections, it is clear that the Board duly
considered all three objections, -the Regional Director's Report on Objections, and the
Employer's exceptions thereto, and found that only objections 2 and 3 raised substantial
and material factual issues.
2 The Respondent contends that paragraph i (b) of the recommended order Is not justified
under the facts of this case and that the order, therefore, is too broad. We do not agree..
The order is properly confined to enjoining violations of the Act's provisions dealing with
bargaining. Paragraph 1 (b) is essential to the insurance of good faith bargaining, and as
such, is within the purview of the Board's duty to effectuate the policies of the Act. See
N., L. R. B. v. The Continental Oil Company, 179 F. 2d 552, where the U. S. Court of
Appeals for the Tenth Circuit approved a similar provision. See also May Department
Stores Company v. N. L. If. B., 326 U. S. 376 and N. L. R. B. v. Express Publishing Company,
312 U. S. 426, in which the Supreme Court modified the Board Order as being too broad
with respect to anticipated violations of other sections of the Act, but approved provisions
with regard to bargaining, which were substantially the same as those contained in the
recommended order to which the Respondent objects.
CLARK SHOE. COMPANY 991
the aforesaid appropriate unit with respect to wages, rates of pay,
hours of employment , or other conditions of employment, and if an
understanding is reached, embody such understanding, in a signed
agreement;
(b) Post at its plant in Auburn, Maine, copies of the notice at-
tached to the Intermediate Report marked Appendix A.3 Copies of
said notice, to be furnished by the Regional Director for the First
Region , shall, after being signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof and main-
tained by it for sixty ( 60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondents to insure that
said notices are Iiot altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order what steps Respond-
ent has taken to comply herewith.
INTERMEDIATE REPORT
Robert E. Greene, Esq ., for the General Counsel.
Grant and Angoff, by Frederick Cohen, Esq., of Boston, Mass., for the Union.
Gordon and Epstein , by Benjamin E. Gordon, Esq ., of Boston , Mass., for
Respondent.
STATEMENT OF THE CASE
Upon a charge duly filed on June 21, 1949, by United Shoe Workers of America,
C. I. 0., herein called the Union, the General Counsel of the National Labor
Relations Board, herein called the General Counsel and the Board, respectively,
by the Regional Director for the First Region (Boston, Massachusetts), issued
a complaint dated June 22, 1949, against Clark Shoe Company, Auburn, Maine,
herein called Respondent, alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a).(1) and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the
charge, complaint, and notice of hearing thereon were duly served upon Respond-
ent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that: ( 1) all production and maintenance employees of Respondent , including
firemen, boilermen, and elevator men, but excluding office clericals, professional
employees, guards, and supervisors, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act; (2) at
all times since May 23, 1949 , the Union has been the exclusive representative
'g This notice , however, shall be and it hereby is amended by striking from the first para-
graph thereof the words "THE RECOMMENDATIONS OF A TRIAL EXAMINER" and
substituting in lieu thereof the words "A DECISION AND ORDER ." In the event that
this Order is enforced by a decree of a United States Court of Appeals , there shall be
inserted before the words "DECISION AND ORDER" the words "DECREE OF THE
UNITED STATES COURT OF APPEALS ENFORCING."
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of all employees in the above -described appropriate unit; (3) on June 15, 1949,
and at all times thereafter, Respondent has refused to bargain collectively with
the Union as the exclusive representative of the employees in the aforesaid
appropriate unit; and (4) by the foregoing conduct, Respondent has engaged
in and is engaging in unfair labor practices violative of Section 8 (a) (1) and
(5) of the Act.
Pursuant to notice, a hearing was held on August 2, 1949, at Auburn, Maine,
before the undersigned Trial Examiner, Martin S. Bennett, duly designated by
the Chief Trial Examiner. The General Counsel, the Union, and Respondent
were represented by counsel and were afforded full opportunity to be heard and
to introduce evidence bearing on the issues.'
At the hearing, Lewiston-Auburn Shoe Workers Protective Association, herein
called LASPA, moved to intervene in this proceeding! LASPA alleged that the
unit set forth in the complaint was not appropriate and that the appropriate
unit was one that included all members of the Auburn Shoe Manufacturers Asso-
ciation ; within the latter unit LASPA claimed that it represented a majority.
The undersigned ruled that LASPA had no interest in the issues of the instant
proceeding and denied the motion to intervene. The undersigned also denied
a motion by counsel for Respondent herein to further appear,. in addition to
his appearance for Respondent, as amicus curiae in behalf of Auburn Shoe
Manufacturers Association, a trade association of which Respondent is apparently
a member.
At the hearing, the undersigned permitted Respondent to file an answer wherein
it admitted the allegations of the complaint with respect to the nature of its busi-
ness ; denied the appropriateness of the unit alleged by the complaint to be appro-
priate; contended that the appropriate unit should embrace the employees of
all members of the Auburn Shoe Manufacturers Association ; denied that the
Union was the exclusive representative of all the employees of Respondent in
the unit alleged by the complaint to be appropriate ; admitted that it had refused
to bargain with the Union ; and denied the commission of any unfair labor
practices. At the close of the hearing, the parties argued orally before the
undersigned and were also advised that they might file briefs and/or proposed
findings of fact and conclusions of law. A brief has been received from
Respondent.
Upon the entire record in the case and from his. observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Clark Shoe Company is a Maine corporation whose principal place of business
is located at Auburn, Maine, where it is engaged in the manufacture, sale, and
distribution of women's shoes. In the course and conduct of its business, Re-
spondent annually purchases raw materials including leather, shoe findings,
fabrics, wooden heels, and chemicals valued in excess of $50,000, of which over
50 percent is shipped to Respondent's plant from points outside the State of Maine.
1The exclusion by the undersigned of certain. testimony proffered by Respondent is
discussed below.
2 As appears below, this is a labor organization which intervened and appeared on the
ballot in an election directed by the Board among the employees of Respondent ; the Union
won and was later certified by the Board . Clark Shoe Company, 83 NLRB 782.
CLARK SHOE COMPANY 993
Respondent annually produces shoes valued in excess of $50,000, of which over
50 percent is shipped to points outside the State of Maine.
Respondent admits in its answer, the Board has previously found, and the
undersigned now finds that Respondent is engaged in commerce within the
meaning of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
United Shoe Workers of America is a labor organization affiliated with the
Congress of Industrial Organizations and iidmits to membership employees of
Respondent.'
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the representation proceeding
The sole issue in the instant proceeding is whether Respondent has refused to
bargain collectively with the Union and has thereby violated Section 8 (a) (1)
and (5) of the Act. Respondent admits in its answer that on June 15, 1949, and
at all times thereafter, it has refused to bargain collectively with the Union.
As will be seen below, Respondent, in effect, raises two contentions as a de-
fense to its refusal to bargain, (1) that the unit alleged to be appropriate is
in fact inappropriate, and (2) that certain conduct which took place at the time
of the election, as a result of which the Union was certified, rendered the elec-
tion and the certification invalid.'
After a petition for certification of representatives was filed by the Union in
Case No. 1-RC-298, the ,Board on June 23, 1948, issued a Decision and Direction
of Election wherein it found, inter alia, that a unit of Respondent's employees
identical with that set forth in the instant complaint was a unit appropriate for
the purposes of collective bargaining and directed an election among the em-
ployees in that unit. The election was conducted under the supervision of the
Regional Director for the First Region on July 21, 1948. Of 624 eligible voters,
602 cast ballots, of which 2 were void, 302 were for the Petitioner, the Union
herein, 28 for the Intervenor, LASPA, 257 for neither, and 13 were challenged.
On July 28, 1948, the Employer, Respondent herein, filed the following Objec-
tions to the Conduct of Election :
(1) The agent in charge of the election refused to determine the number
of employees who had voted by counting the number of names checked as
having voted on the eligibility list for the purpose of comparing this total
with the number of ballots cast.
(2) There were blank ballots present in the voting booth several times
during the voting.
3 Findings herein are based upon the allegations of the complaint, Respondent 's answer,
and the record in Case No. 1-RC-298 wherein the Board found that Respondent is engaged
in commerce within the meaning of the Act.
' Respondent in its answer called upon the Board "to prove" that the Union was a labor
organization . However, Respondent stipulated in the representation proceeding , Case No.
1-RC-298, and the Board found therein , that the Union was a labor organization.
5In its brief to the undersigned , Respondent raises a third contention which it urged
before the Board, which the Board resolved adversely to Respondent , and which Respondent
did not raise at the Instant hearing . This contention is that the certification of the Union
is improper because the Board in reaching its decision relied on the Report of a Hearing
Officer, as appears below, contrary to its Rules and Regulations . As the Board has resolved
this contention adversely to Respondent, and as no new matter was raised before the under-
signed, the undersigned rejects this defense of Respondent . In any event; Respondent's
position is not well taken . Minnesota Mining and Manufacturing Co., 81 NLRB 557.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) The ballot box was left unattended on several occasions during the
voting.
On August 30, 1948, the Regional Director filed his Report on Objections in
which he recommended that the objections be overruled. To this the Employer
duly filed exceptions. On November 2, 1948, having considered the objections,
the Regional Director's report on Objections, and Respondent's exceptions thereto,
the Board found that objections 2 and 3, set forth above, raised material and
substantial issues with respect to conduct affecting the results of the election and
ordered a hearing upon those objections.
In order to follow the history of the representation case, it is necessary at this
point to advert to another pleading filed by Respondent in that proceeding. On
or about November 10, 1948, Respondent filed a "Petition to Vacate Election
and Reopen Record for Evidence as to the Appropriate Unit." In support of its
petition, Respondent alleged that it desired to submit "further evidence not avail-
able at the time of the formal hearing as to the appropriate unit on the grounds
that the unit designated is inappropriate . . ." On November 26, 1948, the
Board denied Respondent's petition of November 10 on the ground that Respond-
ent "at the hearing, raised no question concerning the appropriateness of the
unit, but stipulated that a production and maintenance unit of its employees was
appropriate. The raising of this issue now is not timely." [Emphasis added.]
A motion for reconsideration of this order of the Board was filed by Respondent
on or about February 8, 1949, and was denied on or about February 25, 1949.
Returning to the chronological record of Respondent's original objections to the
election, a hearing was held as directed on December 1 and 2, 1948, on the issues
raised by objections 2 and 3, before a duly designated hearing officer who was
directed to make findings and recommendations. The hearing officer issued a
report on March 7, 1949, wherein he recommended that Respondent's objections
be overruled, and thereafter Respondent filed exceptions to that report. On
May 23, 1949, the Board issued a Supplemental Decision and Certification of
Representatives wherein it overruled Respondent's objections, adopted the find-
ings and recommendations of the hearing officer, and certified the Petitioner, the
Union, as the exclusive bargaining representative of the employees of Respondent
in the above-described appropriate unit.
B. The refusal to bargain
1. The appropriate unit
The complaint alleges that all production and maintenance employees of
Respondent, including firemen, boilermen, and elevator men, but excluding office
clericals, professions employees, guards, and supervisors, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
As set forth above, this is the unit found by the Board to be appropriate in
the representation proceeding and for which the Board on May 23, 1949, certified
the Union as exclusive bargaining representative. And as appears above, this
is the identical unit concerning which the Board, on November 26, 1948, and
again on February 25, 1949, denied Respondent's "Petition to Vacate Election
and Reopen Record for Evidence as to the Appropriate Unit." Thus, the Board
on those occasions has, in effect, again affirmed its original determination with
respect to the appropriate unit.
CLARK SHOE COMPANY 995
Respondent, in the instant proceeding, raises again the identical contention that
.the unit established by the Board is inappropriate. It is urged that the only
.appropriate unit is a multiemployer unit of the members of the Auburn Shoe
Manufacturers Association, although that question, as appears above, has already
been resolved adversely to Respondent. Respondent contends here as it did in the
representation proceeding that the evidence it desires to submit was not available
at the time of the original hearing in that case. The facts, however, do not lend
-support to Respondent's contention.
The evidence relied upon by Respondent to establish its position amounts to the
following: namely, that it did not occur to the president of Respondent to raise
the issue of the appropriateness of a single-employer unit at the time of the
hearing in the representation proceeding, and that as a result, he did not discuss
the matter with his counsel until after that hearing took place. Obviously, and
contrary to Respondent's contention, this is not an instance of evidence which was
not available at an earlier date, but, at the most, amounts to a failure by Respond-
ent to take a position as to unit. Morever, the record-in the representation pro-
ceeding discloses, as the Board specifically pointed out in its order of November
26, 1948, denying Respondent's "Petition to Vacate Election and Reopen Record
for Evidence as to the Appropriate unit," that in the representation proceeding
Respondent had agreed that a unit of its production and maintenance employees
was appropriate for the purposes of collective bargaining.
In sum then, Respondent moved to reopen the record in the representation pro-
ceeding for evidence as to the appropriate unit long after it not only raised no
question at the representation hearing concerning the appropriateness of the unit,
but agreed in fact that a unit identical with that set forth in the instant complaint
was appropriate for the purposes of collective bargaining. Furthermore, as set
forth above, the testimony of the president of Respondent at the instant hearing
reveals that Respondent is not attempting to introduce newly discovered evidence,
but is rather attempting to raise a contention which is exactly contrary to the
agreement it entered into concerning the appropriate unit at the representation
hearing. Finally, Respondent conceded that there had been no change in the
nature of its business since the date of the certification of the Union up to and
including the date of the alleged refusal to bargain' In view of the foregoing
findings, the undersigned rejects Respondent's contentions herein. Cf. N. L. R. B.
v. Worcester Woolen Mills Corp., 170 F. 2d 13 (C. A. 1), cert. denied 336 U. S. 903.
The undersigned finds, as alleged in the complaint, that all production and
maintenance employees of Respondent, including firemen, boilermen, and elevator
men, but excluding office clericals, professional employees, guards, and super-
visors, constitute an appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
2. Representation by the Union of a majority in the appropriate unit
As set forth above in more detail, the Union won the election held on July 21,
1948, and was certified by the Board on May 23, 1949, as the exclusive representa-
tive of all employees in the above-described appropriate unit for the purposes of
collective bargaining.
It will be recalled that Respondent raised three objections to the conduct of
the election of July 21, 1948, and that the Board overruled the first and directed
a hearing on the second and third. At the instant hearing, Respondent attempted
6 It may be noted that Respondent was represented by counsel in the representation pro-
ceeding, and in fact by the same counsel as in the instant proceeding,
882191-51-64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to introduce evidence with respect to the first objection and the undersigned
sustained an objection by the General Counsel to the receipt of such evidence.
The record makes clear that Respondent is raising the identical objection and
offering the same evidence as it set forth in considerable detail in its exceptions
to the Regional Director's report on objections and on which the Board has ruled
adversely to Respondent. Nor is it contended that this is newly discovered
matter not previously brought to the attention of the Board. Furthermore, even
at the hearing on objections 2 and 3 conducted by a hearing officer on December
1 and 2, 1948, some evidence was taken in support of objection 1 because Respond-
ent contended that it might have a material bearing on objection 2. The hearing
officer's report reveals, in effect, that some testimony on objection 1 was consid-
ered even though the Board had previously found adversely to Respondent on the
issue.
In sum, then, the record shows that Respondent is attempting to raise in this
proceeding the precise contention that it raised and argued to the Board in the
representation proceeding and which was there resolved adversely to it. Nor
is there a claim or showing that the evidence sought to be adduced was previously
unavailable, for, in fact, it was brought to the attention of the Board. That the
Board did not act in disregard of Respondent's rights is evidenced by the fact
that it did direct a hearing on objections 2 and 3 to the election.
It has been the Board's carefully considered and long established policy not to
permit an employer to relitigate in a subsequent unfair labor practice proceed-
ing involving charges of a refusal to bargain with a certified representative the
-issues decided in a former representation proceeding. This policy is a salutary
one and the only one administratively workable. To give employers a second
opportunity in unfair labor practice proceedings to present evidence on the rep-
resentation issue is to invite them to ignore the representation proceedings alto-
gether and to refuse to bargain in the hope that the Board, in the unfair labor
practice proceeding, will, upon the basis of evidence withheld in the representation
proceeding, upset its representation determination and dismiss the unfair labor
practice charges. Manifestly, the Board cannot adopt a procedure which is so
squarely opposed to the declared policy of the Act, to encourage the practices and
procedure of collective bargaining. N. L. R. B. v. Worcester Woolen Mills Corp.,
supra; Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U. S. 146; Allis-Chalmers
Manufacturing Co. v. N. L. R. B., 162 F. .2d 435 (C. A. 7) ; N. L. R. B. v. West
Kentucky Coal Company, 152 F. 2d 198 (C. A. 6), cert. denied 328 U. S. 866; and
N. L. R. B. v. Anwelt Shoe Manufacturing Co., 93 F. 2d 367 (C. A. 1).
The undersigned finds that on and after May 23, 1949, the Union was the duly
designated bargaining representative of the employees in the aforesaid appro-
priate unit and pursuant to Section 9 (a) of the Act, the Union was on May 23,
1949, and still is, the exclusive representative of all employees in the aforesaid
appropriate unit for the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other conditions of employment.
3. The refusal to bargain
On June 9, 1949, George Fecteau, territorial representative of the Union. wrote
to Respondent as follows :
We, the United Shoe Workers of America, CIO, would like to'meet with
officials of your company for the purpose of entering into negotiations with
the vfiew of arriving at a satisfactory. working agreement.between your com-
pany and our union.
CLARK SHOE COMPANY 997
This request is pursuant to the decision of the National Labor Relations
Board, dated May 23, 1949, which certifies the United Shoe Workers of
America, CIO, as the exclusive representative of your employees-for the pur-
pose of collective bargaining with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
Will you please notify us as soon as possible when it will be convenient for
you to meet with us?
On June 15, 1949, counsel for Respondent replied to Fecteau's letter as follows :
It is the position of the Company that the certification issued by the
National Labor Relations Board is improper. The only way that this matter
can be litigated to a final decision is by the Company refusing to recognize the
certification.
Therefore, you are herewith notified that the Company does not recognize
the certification of the National Labor Relations Board and will not recog-
nize your Union as the exclusive representative of the Company's employees
for the purpose of collective bargaining.
The above letters reveal, Respondent admits in its answer, and the under-
signed finds that on June 15, 1949; and at all times thereafter, Respondent has
refused and is refusing to bargain collectively with the Union as the exclusive
representative of its employees in an appropriate unit, and has thereby interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
IV. TILE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection with the operations of Respondent described in Section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among^the
several States and tend to lead to labor disputes burdening and obstructing coin-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that Respondent cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act. Having
also found that the Union represented and now represents a majority of the
employees in the appropriate unit and that Respondent has refused to bargain
collectively with it, the undersigned will recommend that Respondent, upon re-
quest, bargain collectively with the Union.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Shoe Workers of America, C. I. 0., is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of Respondent at its plant at
Auburn, Maine, including firemen, boilermen, and elevator men, but excluding
office clericals, professional employees, guards, and supervisors, constitute a
unit appropriate for the purposes of collective bargaining with the meaning
of Section 9 (b) of the Act.
3. United'Shoe Workers of America, C. I. 0., was. on. May 23,1949, and at all
times. thereafter has been, and is, the exclusive representative of all employees
998 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD
in the aforesaid appropriate unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing on June 15, 1949, and at all times thereafter, to bargain col-
lectively with United Shoe Workers of America, C. I. 0., as the exclusive repre-
sentative of its employees in the aforesaid appropriate unit, Respondent has
engaged and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
5. By the aforesaid refusal to bargain, Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and has thereby engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Respondent , Clark Shoe Company, Auburn, Maine,
and its officers , agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Shoe Workers of America,
C. I. 0., as the exclusive representative of all production and maintenance em-
ployees of Respondent including firemen, boilermen , and elevator men, but
excluding office clericals , professional employees , guards, and supervisors ;
(b) In any manner interfering with the efforts of United Shoe Workers of
America, C . I. 0., to bargain collectively with it in behalf of the employees in
the aforesaid appropriate unit.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request , bargain collectively with United Shoe Workers of America,
C. I. 0., as the exclusive representative of all employees in the aforesaid ap-
propriate unit with respect to wages, rates of pay, hours of employment, or other
conditions of employment , and if an understanding is reached , embody such
understanding in a signed agreement;
(b) Post at its plant at Auburn , Maine, copies of the notice attached hereto
and marked Appendix A. Copies of said notice , to be furnished by the Regional
Director for the First Region, shall , after being duly signed by Respondent's
representative , be posted by Respondent immediately upon receipt thereof and
maintained by it for a period of sixty ( 60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that said
notices are not altered , defaced, or covered by any other material;
(c) Notify the Regional Director for the First Region in writing within
twenty (20) days frgm the date of receipt of this Intermediate Report what
steps Respondent has taken to comply herewith.
It is also recommended that unless on or before twenty ( 20) days from the
date of receipt of this Intermediate Report, Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring Respondent to take
the aforesaid action.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty ( 20) days from the date
of service of the order transferring the case to the Board , pursuant to Section
CLARK SHOE COMPANY 999
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such excep-
tions to the Intermediate Report or to any other part of the record or proceed-
ing (including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof; and any party
may, within the same period, file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof upon
each of the other parties. Statements of exceptions and briefs shall designate
by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed, and if mimeographed shall be double spaced. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.46,
:should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, and recommendations herein
contained shall, as provided in Section 203.48 of said Rules and Regulations,
be adopted by the Board and become its findings, conclusions and order, and all
-objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 4th day of November 1949.
• MARTIN S. BENNETT,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL BARGAIN collectively upon request with UNITED SHOE WORKERS OF
AMERICA, C. I. 0., as the exclusive representative of all employees in the
bargaining unit described herein with respect to wages, rates of pay, hours
of employment, or other terms or conditions of employment and, if an under-
standing is reached, embody such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees including firement, boiler-
men, and elevator men, but excluding office clericals, professional em-
ployees, guards, and supervisors.
WE WILL NOT in any manner interfere with the efforts of the above-named
Union to bargain collectively with us, or refuse to bargain with said Union
as the exclusive representative of the employees in the bargaining unit set
forth above.
CLARK SHOE COMPANY,
Employer.
By----------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 consecutive days from the date hereof,
and must not be altered, defaced, or covered by any other material.
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