F. S. Elam Shoe Company, Inc.

National Labor Relations Board - Board Decisions

Jun 5, 1939

13 N.L.R.B. 92 (N.L.R.B. 1939)

In the Matter of F. S. ,ELAN SHOE COMPANY, INC . and UNITED SHOE
WORKERS OF AMERICA OF THE COMMITTEE FOR INDUSTRIAL ORGANI-
ZATION
Case No. C-1011.Decided June 5, 1939
Shoe Manufacturing Industry-Interference, Restraint , or Coercion : charges
of, dismissed-Company-Dominated Union: charges of, dismissed , evidence fails
to sustain charges-Collective Bargaining : charges of, dismissed , evidence does
not sustain charges-Complaint : dismissed.
Mr. Edward D. Flaherty, for the Board.
Oviatt, Gilman, O'Brien & Barnsdale, by Mr. J. E. O'Brien and
Mr. A. L. Gilman, of Rochester, N. Y., for the respondent.
Mr. Allan Lind, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by the United Shoe
Workers of America, herein called the United, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Third Region (Buffalo, New York), issued its complaint dated
February 8, 1938, against F. S. Elam Shoe Company, Inc., Rochester
New York, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1), (2), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. A copy of the complaint, accompanied by
notice of hearing, was duly served upon the respondent and upon the
United.
The complaint alleged in substance that on or about July 20, 1937,
and thereafter, the respondent refused to bargain collectively with the
United as the exclusive representative of the respondent's pro-
duction and maintenance employees, said employees constituting an
appropriate unit and a majority thereof having designated the United
as their representative for collective bargaining; that the respondent
13 N. L. R. B., No. 13.
92
F. S. ELAM SHOE COMPANY, INCORPORATED 93
caused to be circulated among its employees propaganda to the effect
that because of an increase in wages provided for in a contract with
the United, the respondent had lost many orders and that to insure
the employees work it would be necessary to reduce the wage scale or
to cancel the contract, with the intention of interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed
by Section 7 of the Act; and that the respondent dominated and
interfered with, and is dominating and interfering with the forma-
tion of a labor organization known as the Rochester Pre-Welt Shoe
Union, herein called the Pre-Welt, and has contributed support to said
organization. On February 16, 1938, the respondent filed an answer
to the complaint denying that it had engaged in any unfair labor prac-
tices and affirmatively alleging that its employees had revoked their
designation of the United as their bargaining agent prior to July
20, 1937.
Pursuant to notice, a hearing was held at Rochester, New York,
on April 26 and 27, 1938, before Mapes Davidson, the Trial Examiner
duly designated by the Board. The Board and the respondent were
represented by counsel and full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. At the conclusion of the Board's
case the respondent moved that the proceedings be dismissed on the
ground that the evidence did not sustain the allegations of the com-
plaint. The Trial Examiner denied the motion. At the conclusion
of the hearing counsel for the Board moved to amend the pleadings
to conform to proof. This motion was granted. During the course
of the hearing the Trial Examiner made several other rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On October 29, 1938, the Trial Examiner filed his Intermediate
Report, finding that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1), (2), and (5) and
Section 2 (6) and (7) of the Act. He accordingly recommended that
the respondent cease and desist from engaging in the unfair labor
practices; that it disestablish the Pre-Welt as bargaining agent of its
employees; and that upon request it bargain collectively with the
United.
On November 12, 1938, the respondent filed exceptions to the Inter-
mediate Report and requested permission to argue orally before the
Board. Pursuant to notice, oral argument was had before the Board
on February 21, 1939. The respondent and the United were repre-
sented by counsel and participated in the oral argument.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the exceptions to the Intermediate Re-
port and, in so far as they are inconsistent with the findings, con-
clusions of law, and order set forth below, finds them to be without
merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation with its principal place
of business located at Rochester, New York. It is engaged in the,
manufacture, sale, and distribution of shoes. The raw materials used
by the respondent consist of leather, rubber soles, rubber heels, cloth,
composition linings, shoe laces, findings, and other materials used in
the manufacture of shoes. During the year 1937 the respondent pur-
chased raw materials valued at $160,054. Approximately 78 per cent
of such raw materials were purchased and shipped to the respondent
from States other than the State of New York. During the same
year the respondent sold shoes valued at approximately $330,556. All
the shoes were shipped outside the State of New York.
II. THE ORGANIZATIONS INVOLVED
United Shoe Workers of America is a labor organization affiliated
with the Committee for Industrial Organization, admitting to its
membership production and maintenance employees of the respond-
ent, exclusive of supervisory and clerical employees.
Rochester Pre-Welt Shoe Union is an unaffiliated labor organiza-
tion, admitting to its membership production, maintenance, and
clerical employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The chronology of events
The United began to organize the respondent 's employees in the
early spring of 1937 and by April of that year had obtained as mem-
bers approximately 90 per cent of the employees . The United there-
upon entered into bargaining negotiations with the respondent and
on April 2 , 1937, secured a contract "for and in behalf of the mem-
bers of the Union, now employed, or who may hereafter, be employed
by the Firm." The contract , effective as of May 19, 1937, was to
remain in force and effect until May 31, 1938, and from year to year
F. S. ELAM SHOE COMPANY, INCORPORATED 95
thereafter, in the absence of notice given by either party 60 days
prior to the termination date. It provided, among other things, that
the respondent should employ, as shoe workers, "only members be-
longing to the United and furnished ithrough the office of the
United"; that if the United could not supply the respondent with
help when called for within 24 hours, the respondent had the right
to secure such help in the open market, such workers to become
members of the United, after having been employed in the factory
for 2 weeks; that the United should have the right to appoint a Shop
Chairman for the purpose of collecting dues from members, inspect-
ing membership cards and seeing that work was equally distributed ;
and that there should be a 15-per cent wage increase.
In July 1935, a movement was started among the respondent's em-
ployees by Duane Fitzsimmons who was employed in the cutting
room, Michael Golisano who was employed in the lasting room, and
a Mr. Whittaker, an attorney, for the formation of the Pre-Welt, an
unaffiliated organization. About July 19, 1937, the two employees
circulated among the employees during working hours a petition
stating that the signers thereof revoked their designation of the
United as bargaining representative and designated the Pre-Welt as
such representative. The petition was signed by approximately 100
of the 110 employees of the respondent. About this same time, the
Pre-Welt held a number of meetings at which officers were elected.
On July 20, 1937, representatives of the Pre-Welt presented the
signed petition to F. S. Elam, the respondent's president, and re-
quested that the Pre-Welt be recognized as exclusive bargaining
representative of the respondent's employees and that the respondent
enter into a contract with the Pre-Welt. Elam refused to grant such
requests on the ground that the respondent had already made a con-
tract with the United.
After the meeting with the Pre-Welt representatives, Elam in-
formed representatives of the United that he was having some diffi-
culty with his employees and requested that they investigate the
matter. On the following day, the United's representatives con-
ferred with Elam at the plant. At this time, the United took the posi-
tion that the respondent was attempting to create dissension among
the employees in order to avoid the payment of the 15-per cent wage,
increase and asked that the respondent post a notice directing the
employees to pay their dues to the United. Elam replied that the
respondent would live up to its agreement with the United, but that
the agreement did not place any responsibility upon the respondent
with respect to the collection of dues and that the respondent would
not post the notice as requested by the United.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At a meeting held on or about August 20, 1937, and at a subsequent
meeting held on September 23, 1937, attended by representatives of
the respondent, the United, the Pre-Welt, and the Board, the United
asked that the respondent post notices directing the employees to put
themselves in good standing with the United and pay dues to that
organization. The respondent took the position that the posting of
such notice might constitute an unfair labor practice against the Pre-
Welt and refused to post the notice. The United asserted in connec-
tion with its request regarding the posting of the notice that the agree-
ment between the respondent and the United was for a closed shop,
but stated that it did not desire the discharge of any employees. The
respondent denied that the agreement was one for a closed shop and
asserted that it had been so assured by the United at the time the
agreement was executed.
During the period from July 20 to November 1937, the Pre-Welt
attempted to persuade the approximately 10 employees, who were
still members of the United, to join the Pre-Welt. However, it was
unsuccessful in such efforts.
During the summer of 1937, there was a decline in the business of
the respondent and its plant was operated on a part-time schedule.
There arose some unrest among the employees and a rumor became
current that work would be steadier if all the employees joined the
Pre-Welt and that the respondent might not be able to operate its
plant unless there was a reduction in wages.
Early in November 1937, Elam called a meeting of representatives
of the United and the Pre-Welt and informed them that the lack
of steady work was due to business conditions and that the re-
spondent had been offered two large orders which could be accepted
only if the employees accepted a 15-per cent wage reduction while
working on such orders. Elam stated that the orders would not, on
such basis, net the respondent any profit but would enable the factory
to keep operating. He asked the representatives of the United and
the Pre-Welt as to whether they would be willing to accept the pro-
posed reduction while the orders were being filled. The Pre-Welt
indicated willingness to accept such reduction, but the United refused
to do so unless Elam agreed to use his influence to persuade the em-
ployees to return to the United. Elam refused so to agree and did
not accept the proffered offers of orders.
Shortly after the aforesaid meeting, Elam made an extended busi-
ness trip for the purpose of securing orders. He testified at the
hearing that, due to the competitive conditions, he was unable to se-
cure orders at the prices he was forced to quote and that he became
convinced that he would have to close the factory or be forced into
bankruptcy. In support of his testimony, there were introduced in
F. S. ELAM SHOE COMPANY, INCORPORATED 97
evidence the respondent's financial records which showed that for the
6 months' period ending June 30, 1937, the respondent made a profit
of approximately $7,000 and that for the 5 months' period following
June 30, 1937, the respondent incurred a loss of approximately $5,000.
Upon returning from his trip, Elam posted a notice at the plant
to the effect that the plant would be closed for an indefinite period
beginning November 25, 1937. The employees who had remained
members of the United thereupon resigned and joined the Pre-Welt.
They testified at the hearing that they were influenced in part by the
notice and in part by the fact that all the other employees were
members of the Pre-Welt. Thereafter, a committee representing the
Pre-Welt communicated with Elam and asked whether the respondent
could obtain orders and operate the plant if the employees accepted
a 15-per cent wage reduction. Elam replied that there was such a
possibility and that he would see what could be done. On December
6, 1937, the Pre-Welt held a meeting of employees at which the em-
ployees voted to accept a 15-per cent wage reduction. Elam was in-
formed of such action. Shortly thereafter the respondent secured
a number of orders and the plant which had been closed on Novem-
ber 25, 1937, was reopened.
B. The alleged domination of they Pre-Welt and other interference,
restraint, and coercion
There is no showing in the record that the formation of the Pre-
Welt was inspired by the respondent or was the result of any inter-
ference, restraint, or coercion on the part of the respondent. It ap-
pears rather to have been conceived of by two employees of the re-
spondent who were dissatisfied with the United. The two employees
were actively assisted by Mr. Whittaker, an attorney who, in so far as
the record discloses, had no connection with the respondent. Al-
though there was solicitation on behalf of the Pre-Welt during work-
ing hours, the evidence shows that the United also engaged in solici-
tation of members and other activities during working hours without
objection on the part of the respondent.
Nor does the evidence establish that the respondent dominated the
Pre-Welt after its formation. S. E. Saxe, an employee, testified that
during the summer of 1937 Elam asked him, "Why don't you come
over with the other gang," and that when he replied, "If I ever got
out of this one I wouldn't join no other union," Elam stated, "Well,
ours is different." Elam testified that on one occasion about the
middle or latter part of November 1937 he had remarked to Saxe
that he could not see why the employees "couldn't get together one
way or another and settle this trouble with the unions," but denied
that he had made the statements attributed to him by Saxe. Thomas
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Keefer, another employee, testified that about August 1937 Elam
asked him, "Why are them people so stubborn," and that he "imag-
ined" Elam wanted the employees to get together "all in one union."
Keefer also testified that Elam remarked, "You had better see Mike"
and that the reference was to Mike Golisano who was soliciting mem-
bers for the Pre-Welt. Elam denied that he had made any such
statements to Keefer. He testified that on one occasion in November
1937 Keefer asked him whether the respondent was going to have any
business that season and that he replied, "It all depends on your
organization" and stated to Keefer, "It seems strange, you have
worked here so long, that you fellows can't, get together and
straighten this thing out." J. R. Titterington, a third employee,
testified that sometime about July or August 1937 Elam remarked to
him that, "I just told Margaret (an employee) that we should all get
together and make one big family out of it, and work like we did
before." He further testified that he replied, "I am the committee-
man of the lower end of this floor, and if anything comes up I'll try
to keep it straight, if I can." Elam testified that the only such con-
versation took place in April 1937 at the time the agreement with the
United was signed at which time he expressed himself as being
anxious that all the employees be members of the United. Since
Titterington joined the United in April 1937 and did not become a
member of the Pre-Welt until November 1937, it appears unlikely
that he would have made the reply to Elam which he testified he
made if the conversation took place in July or August 1937 and had
reference to the Pre-Welt. On the basis of the entire record, we con-
clude that the conversations which Elam had with Saxe, Keefer,
and Titterington were not designed to interfere with, restrain, or
coerce the employees and they did not do so.
Although, as we have noted above, a rumor became current at the
plant during the summer of 1937 that work would be steadier if all
the employees joined the Pre-Welt, there is no showing in the record
that the respondent inspired or aided in the circulation of such rumor.
The complaint alleges that the respondent, for the purpose of inter-
fering with, restraining, and coercing its employees in the exercise of
their rights to self-organization, caused to be circulated among its em-
ployees propaganda to the effect that because of the increase in wages
provided in its contract with the United the respondent had lost many
orders and had many orders canceled and that in order to obtain
orders and to insure the employees work it would be necessary to
reduce the wage schedule provided in the contract or cancel the con-
tract. We have noted above that in the early part of November 1937
the respondent informed representatives of the United and the Pre-
Welt that the lack of steady work was due to business conditions
F. S. ELAM SHOE COMPANY, INCORPORATED 99
and asked whether the two organizations would be willing to accept
-a 15-per cent reduction in wages while work was being carried out
-on two orders which the respondent had before it; that subsequently
the respondent posted a notice relative to the closing of the plant on
November 25, 1937; and that beginning about December 6, 1937, the
respondent began to pay to its employees wages 15 per cent below
those specified in the agreement which it had previously made with
the United. We do not find, however, that such actions on the part
of the respondent were designed to interfere with, restrain, or coerce
its employees, but conclude rather that the respondent so acted be-
-cause of economic conditions.
We find that the respondent has not dominated or interfered with
the formation or administration of a labor organization and has not
by virtue of the activities discussed above interfered with, restrained,
-or coerced its employees in the exercise of the rights guaranteed by
`Section 7 of the Act.
C. The alleged refusal to bargain collectively
The complaint alleges that the respondent on or about July 20,
1937, and at all times thereafter, refused to bargain collectively with
the United as the exclusive representatives of its employees in an
appropriate unit. In support of this allegation, evidence was pre-
sented to the effect that on July 20, 1937, and thereafter, the respond-
ent refused, upon request by the United, to post notices directing the
respondent's employees to pay dues to the United and to reestablish
themselves as members in good standing in that organization. The
contention is made that the posting of such notices was consistent
with the terms of the respondent's agreement with the United.
We have noted above that by July 20,1937, a majority of the respond-
ent's employees had resigned from the United and become members of
the Pre-Welt. We do not, however, think it necessary to consider
the effect, if any, of such change in affiliation upon the agreement
which the respondent made with the United. Such agreement pro-
vided, as we have noted above, that the respondent should employ,
as shoe workers, only members belonging to the United and furnished
through the office of the United, and that if the United could not
supply the respondent with help when called upon within 24 hours,
the respondent had the right to secure such help in the open market,
such workers to become members of the United after having been
employed in the factory for 2 weeks. It contained no provision rela-
tive to the posting of notices such as requested by the United or
relative to participation by the respondent in the collection of dues
for the United. Indeed, the provision, of the agreement that the
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United should have "the right to appoint a Shop Chairman for the
purpose of collecting dues" would appear clearly to indicate that
such was not the respondent's responsibility. We are of the opinion,
moreover, that, even if the agreement could be interpreted to require
the posting of the notices, the mere failure of the respondent to do so
did not constitute a refusal to bargain collectively.
We find that the respondent has not refused to bargain collectively
with the United.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
L. The operations of the respondent, F. S. Elam Shoe Company,
Inc., Rochester, New York, occur in commerce, within the meaning
of Section 2 (6) of the Act.
2. United Shoe Workers of America and Rochester Pre-Welt Shoe
Union are labor organizations, within the meaning of Section 2 (5)
of the Act.
3. The respondent has not dominated or interfered with the forma-
tion or administration of a labor organization or contributed finan-
cial or other support to a labor organization, within the meaning of
Section 8 (2) of the Act.
4. The respondent has not refused to bargain collectively, within
the meaning of Section 8 (5) of the Act.
5. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed by Section 7
of the Act, thereby engaging in an unfair labor practice within the
meaning of Section 8 (1) 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 the com-
plaint issued against F. S. Elam Shoe Company, Inc., Rochester,.
New York, be, and it hereby is, dismissed.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.