Laconia Shoe Co., Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1974

215 N.L.R.B. 573 (N.L.R.B. 1974)

LACONIA SHOE COMPANY, INC. 573
Laconia Shoe Company, Inc. and Chauffeurs, Team-
sters and Helpers Local Union No. 633, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America
stituted for the Administrative Law Judge's notice
marked "Appendix A."
APPENDIX A
United Shoeworkers of America , AFL-CIO, CLC and
Chauffeurs , Teamsters and Helpers Local Union
No. 633, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Cases 1-CA-9521, 1-CA-9793, and
1-CB-2471
December 13, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On July 26, 1974, Administrative Law Judge Melvin
J. Welles issued the attached Decision in this proceed-
ing. Thereafter, the Respondents filed exceptions and
supporting briefs, and the General Counsel filed cross-
exceptions and a brief in support thereof and in re-
sponse to Respondents' exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondents, Laconia Shoe Company, Inc., La-
conia, New Hampshire, its officers, agents, successors,
and assigns, and United Shoeworkers of America,
AFL-CIO, CLC, its officers, agents, and representa-
tives, shall take the action set forth in the said recom-
mended Order, except that the attached notice is sub-
i Since the General Counsel did in fact prove, as the Administrative Law
Judge found, that the Shoeworkers did not represent a majority of the
concerned employees at the time the Employer granted recognition, we find
it unnecessary to pass on his statement in fn 11 of his Decision that the
General Counsel had no burden to prove such lack of majority in this case
2 Chairman Miller and Member Kennedy find this case to be distinguisha-
ble from Gary-Hobart Water Corporation, 210,NLRB 742 (1974), in which
they dissented The strike in the instant case was in protest of Respondent
Company's unfair labor practices whereas the strike in Gary-Hobart was
economic
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in United
Shoeworkers of America , AFL-CIO, CLC, or any
other labor organization , by recognizing such la-
bor organization as the exclusive representative of
our shipping and receiving department employees
at a time when such labor organization has not
been designated by a majority of such employees.
WE WILL NOT give effect to our agreement of
December 19, 1973, with United Shoeworkers of
America , AFL-CIO, CLC, which extends recog-
nition to the aforesaid labor organization for the
shipping and receiving department employees, un-
less said labor organization has been duly certified
by the National Labor Relations Board as the ex-
clusive representative of such employees.
WE WILL NOT interfere with , restrain, or coerce
our employees in the exercise of rights guaranteed
in Section 7 of the Act by discriminating against
them for engaging in protected concerted activi-
ties.
WE WILL offer Dana Colby immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges , and make him whole for any
loss of earnings suffered by reason of his unlawful
discharge.
WE WILL jointly and severally with United
Shoeworkers of America, AFL-CIO, CLC,
make whole the shipping and receiving em-
ployees for dues and initiation fees paid to the
above-named labor organization.
LACONIA SHOE COMPANY, INC.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Laconia, New Hampshire, on May 23, 1974,
based on charges filed on January 4 and April 30, 1974, and
a complaint and amended complaint issued February 14 and
May 14, 1974, respectively, alleging violations of Section
8(a)(1), (2), and (3) of the Act by Respondent Company, and
Section 8(b)(1)(A) of the Act by Respondent Union.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by the
215 NLRB No. 106
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, the Union, and the General Counsel, I make the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATIONS
INVOLVED
Laconia Shoe Company, Inc., the Company Respondent
herein , is a New Hampshire corporation , with its principal
office and place of business at Laconia , New Hampshire,
where it is engaged in the manufacture , sale and distribution
of men's shoes and related products . It annually both receives
and ships goods valued in excess of $50,000 from and to
points outside the State of New Hampshire , and as it admits,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act United Shoeworkers of
America , AFL-CIO, CLC, herein called the Shoeworkers or
the Union , the Respondent Union herein , and Teamsters
Local Union No. 633, the Charging Party, herein called the
Teamsters , are both labor organizations within the meaning
of Section 2(5) of the Act
11 THE UNFAIR LABOR PRACTICES
A. The Issues
The basic issue is whether the Company violated Section
8(a)(2) and the Shoeworkers 8(b)(1)(A) of the Act by signing
an agreement, on December 19, 1973, which incorporated a
group of shipping and receiving employees into a unit of
production and maintenance employees already represented
by the Shoeworkers. Resolution of that question turns largely
on whether the shipping and receiving employees constituted
an "accretion" to the existing unit, or, if it did not, whether
the General Counsel proved that the Shoeworkers did not
represent a majority of those employees. The second issue,
which depends in part on the outcome of the first issue, is
whether the Company violated Section 8(a)(3) and (1) of the
Act by refusing to reinstate striking employee Dana Colby,
at a time when he was covered by the no-strike clause of the
Company's contract with the Shoeworkers
B. The Facts
The Shoeworkers has represented the Company's produc-
tion and maintenance employees for about 20 years, based on
the Company's having extended voluntary recognition to the
Union. At that time, there were substantially fewer em-
ployees altogether than at the time of the events in this case,
and there was only one part-time shipping and receiving
clerk By November 1972, the shipping and receiving depart-
ment had two employees and a supervisor. Between then and
December 1973, the number of employees performing ship-
ping and receiving functions increased to about 10 to 12
following the Company's relocation in a new plant. The total
employee complement, by December 1973, was about 300.
In late November 1973, shipping and receiving employee
Dana Colby, later transferred into production, told the presi-
dent of the Shoeworkers Local, a Mrs. Reinholz, that the
shipping and receiving employees were interested in becom-
ing members of the Shoeworkers, and having the Shoework-
ers represent them. Vice President John Giderian of the Sho-
eworkers International, shortly thereafter, at a regular
grievance meeting, asked Eugene Brindis, the company chair-
man of the board and its operating head, to include the ship-
ping and receiving employees in its contract. Brindis told
Giderian that this was not the proper subject of a grievance
meeting. Giderian repeated his request to Brindis a few days
later, requesting a specific amendment to the contract. Brin-
dis did not agree, telling Giderian, according to Brindis' tes-
timony, "no, before we get to that point, we have got to lay
out work rules, work loads. There is a lot of work that has
to go into this. So we postponed it for a future time."
On December 18, Antonio Chloros, Jr., a Teamster busi-
ness agent, met with Brindis, and requested that the Com-
pany recognize the Teamsters for the shipping and receiving
employees i Prior thereto, but after Colby spoke with Mrs.
Reinholz about the Shoeworkers representing them, some
nine of the shipping and receiving employees had signed
Teamster authorization cards 2
The next day, December 19, Bnndis called Giderian, tell-
ing him he now agreed to the amendment to the contract to
include the shipping and receiving department in the unit.
Brindis sent the signed amendment over to Giderian by car,
because "it was important to get it signed," and Giderian
signed it the same day. Brindis further testified that after
speaking with Chloros on December 18, he called his attor-
ney, and that in his phone call to Giderian the next day, he
informed Gidenan that he "was withdrawing my question-
ing, and I agreed that he represented them."'
On December 26, 1973, Giderian had another meeting
with the shipping and receiving employees, and on December
27, the Teamsters filed a representation petition with the
NLRB, Case 1-RC-13085, seeking a unit of shippers, receiv-
ers, and truckdrivers, excluding all others.
On April 16, 1974, a meeting was held with eight em-
ployees present, seven of them from shipping and receiving,
and the eighth, Dana Colby, at this point in production. At
this meeting, the employees present discussed "the unfair
labor practices committed by the Company in the past, the
continuation of these unfair labor practices, the instituting of
new unfair labor practices by both the Shoeworkers and the
Company," and "the delays in the original hearing date " It
was "unanimously agreed at the conclusion of the meeting
that we should conduct an unfair labor practice strike."4
i There is a slight conflict between Brindis and Chloros concerning this
December 18 meeting I have no doubt but that Chloros did request recogni-
tion for the shipping and receiving employees, although, for reasons that will
later appear, it would not matter whether or not he did, in terms of deciding
this case
2 At the time Colby spoke with Mrs Reinholz, between 7 and 10 of these
same employees had signed a "petition," apparently for the purpose of being
included in the production and maintenance unit This petition was never
presented to any Shoeworker or Company representative, and was torn up
when the employees, feeling they were getting nowhere with the Shoework-
ers, sought out the Teamsters
' Giderian's testimony that he received a call from Brindis before Decem-
ber 19 recognizing the Shoeworkers "claim of recognition" for the shipping
and receiving employees was obviously mistaken Brindis not only did not
testify to such a call, he specifically testified that he did not agree to the
shipping and receiving department being represented by the Shoeworkers
until December 19, after the December 18 conversation between him and
Chloros, and stated on the stand that his agreeing to execute the amendment
was "hurried along a little bit" by the meeting with Chloros This latter also
supports Chloros' version of his meeting with Brindis
LACONIA SHOE COMPANY, INC.
The next day these eight employees went out on strike, and
picketed with signs reading "Laconia Shoe Company Unfair
to Labor, Teamsters Union on Strike." The strike lasted until
April 26. At that time, all the strikers were reinstated except
Dana Colby.' As to Colby, the Company's position is that
he had been in the production unit for some months prior to
the strike, and therefore he was in violation of the no-strike
clause in the contract with the Shoeworkers covering the
production workers.'
C. Discussion
1. The alleged 8(a)(2) and 8(b)(1)(A) violations
The General Counsel bases his claim of a violation on two
grounds, first, that the Shoeworkers did not represent a
majority of the shipping and receiving employees when, on
December 19, the amendment including them in the produc-
tion and maintenance unit was signed , and second , that the
Teamsters having requested recognition for these employees
on December 18, with 9 signed authorization cards from the
10 to 12 employees in the group, the Company's recognition
of the Shoemakers for them the next day violated Midwest
Piping. (Midwest Piping and Supply Co., 63 NLRB 1060.)
The Company and the Shoeworkers contend that the group
in question (the shipping and receiving employees) con-
stituted an "accretion" to the production and maintenance
unit represented by the Shoeworkers, and accordingly, were
lawfully merged into that unit without regard to whether the
Shoeworkers represented them (in the sense of having a
majority among them) or whether another union was seeking
to represent them and had requested the Company to grant
recognition . They also contend , assuming no accretion is
found, that the General Counsel has not established that the
Shoeworkers did not represent a majority of those employees,
that in fact the Shoeworkers request for recognition, ad-
vanced in late November, was supported by the oral authori-
zation of a majority of them.
The Shoeworkers further contends that the shipping and
receiving employees were never specifically excluded from
the production unit, that the Shoeworkers did not realize
until November 1973 that they had not been, or that the
Company did not consider them to be part of the unit. The
Shoeworkers points to the fact that the shipping and receiving
employees themselves initiated the Shoeworkers attempts to
gain recognition of their department, and, even though these
employees subsequently "become involved with a rival
union," they were clearly "more interested in gaining repre-
sentation than in gaining representation by any particular
union," so that a "decision in favor of accretion necessarily
resulting in representation by the Shoeworkers, aside from
other motivating features, would not be contrary to the inter-
ests or desires of the shippers and receivers involved." Alter-
natively, the Shoeworkers contends that the only appropriate
unit is an overall one, including the shipping and receiving
The above is based on Chloros' uncontradicted testimony.
' Apparently two part-time employees did not go back at that time. There
is no allegation concerning them.
6 Without regard, of course, to the validity of the December 19 extension
of recognition to the Shoeworkers for the shipping and receiving depart-
ment.
575
employees, so that even assuming no accretion is found, the
Teamsters request for recognition (if made) and its majority
support (if it existed) are "irrelevant in terms of the pending
unfair practice charges." Further, the Union claims, "if the
Teamsters were ineligible in terms of an overall unit, and the
separate unit was inappropriate," the "logical inference is
that the shipping and receiving employees would still have
favored representation by the Shoeworkers in the overall
unit."
All parties agree that the first question to be answered is
whether the shipping and receiving employees constituted an
"accretion," under Board doctrine, to the existing production
and maintenance unit. If they did, then the extension of
recognition to the Shoeworkers for them was lawful whether
or not the Shoeworkers enjoyed majority support among
those employees, and whether or not the Teamsters repre-
sented a majority of them or sought recognition for them.
Both the Company and the Shoeworkers recognize that, as
the Shoeworkers states in its brief, "the Board has applied the
accretion doctrine on a restrictive rather than expansive ba-
sis."
As noted above, when the Shoeworkers was first recog-
nized by the Company in 1954, there was only one employee
performing, on a part-time basis, shipping and receiving func-
tions. Some time thereafter (the exact time is not clear in the
record, but must have been substantially before 1972) a sepa-
rate shipping and receiving department, with a supervisor
(Haggerty) and two rank and file employees, emerged. This
state of affairs continued until about November 1972, when
the Company relocated its plant, and the number of em-
ployees in the shipping and receiving department shortly
went up to between 10 and 12. In the new plant, the shipping
room is located on the first floor, in a separate room, con-
nected by an open fire door with the packing department, also
on the first floor. The various production departments are
located on the second, third, and Fourth floors, with the flow
of work beginning with the cutting of soles on the fourth
floor, progressing to the molding department, also on the
fourth floor, to the cutting and stitching operations on the
third floor, the "lasting, making, and finishing" rooms on the
second floor, and finally to the packing room on the first
floor. The last step is the conveyance to the shipping room.
As the name "shipping and receiving" suggests , the em-
ployees in that department also receive materials coming into
the plant.' From time to time, employees from other depart-
ments come into the shipping area to assist loading or unload-
ing trucks, and to pick up incoming materials for their de-
partments. In addition, the shipping and receiving employees
on occasion go to other parts of the plant in the performance
of their duties.
The record shows that the Company has as a regular prac-
tice applied to the shipping and receiving employees terms
and conditions of employment negotiated with the Shoework-
ers in the successive contracts from 1954 to the present,
except that the pension program has never been applicable to
the shipping and receiving department employees, and they
have not been required to be members or pay dues to the
Shoeworkers, or, of course, been subject to the check-off.
' A few employees in other departments also "receive" certain goods in
their departments on other floors.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indeed, one employee, Tony Burroughs, was removed from
the check-off when he transferred from a production depart-
ment to shipping and receiving.
The single most crucial factor in any "accretion case" un-
der settled Board law' is whether the group sought to be
accreted has been in existence at the time of recognition or
certification, yet not covered in an ensuing contract, or, hav-
ing come into existence, has not been part of the larger unit
to which their accretion is sought or granted Although in
1954 there was only one employee performing the function of
shipping and receiving, and he only on a part-time basis, for
the bulk of the 20-year period thereafter, there has been a
separate shipping and receiving department, with separate
supervision, and at least two employees. Since the expansion
to some 10 to 12 employees following the plant relocation in
November 1972, the department has been located in a sepa-
rate room, adjacent to the packing department, which is the
only other department on the first floor.' In all these re-
spects, the situation here is, as the General Counsel asserts,
"almost squarely on all fours" with the facts of Sterilon,
supra where the Board refused to find shipping and receiving
employees to be an "accretion" to an existing production and
maintenance unit. The Board's conclusion in Sterilon that no
"accretion" could be found was made despite the fact that the
shipping and receiving employees there "would normally"
have been included "in a common unit with the production
and maintenance employees."
The facts adduced by the Company and the Shoeworkers
do indeed demonstrate that Laconia Shoe Company's ship-
ping and receiving employees would "normally" be included
in the production and maintenance unit, and that it is un-
likely that the Board would have set them up as a separate
unit, even if some union sought them as such, at a time when
another union was seeking an overall unit But a finding of
"accretion" does not necessarily follow even from a conclu-
sion that the employees involved could not constitute a sepa-
rate "residual" unit, let alone the fact that they would not
have constituted a separate unit in the first instance. When
a group has in fact been excluded for a significant period of
time from an existing production and maintenance unit, the
Board will not permit their accretion without an election or
a showing of majority among them even if no other union
could attain representative status for them
The Company and the Union seek to distinguish this case
from Sterilon, and other similar cases, by claiming that there
was no conscious exclusion of the shipping and receiving
employees here, that, indeed, International Vice President
Giderian expressed surprise when in late November 1973 he
was informed that these employees wanted to be represented
by the Shoeworkers, that they had not been included in the
unit all along. In view of the express testimony of Brindis that
the Shoeworkers was not recognized as bargaining agent for
the shipping receiving employees prior to December 19, 1973,
a belief by Giderian to the contrary is of no significance.10
B The "lead" case in this respect is Sterilon Corporation, 147 NLRB 219
(1964) %
9 Packing employees are considered "production," and in the production
and maintenance unit
10 Nor is the fact, as Giderian testified, that the Shoeworkers Union has
a policy of including shippers and receivers in production and maintenance
Indeed, I find it difficult to believe that the Shoeworkers as
an entity, as distinguished from Vice President Giderian as an
individual, could not have been aware over the years of the
fact that the shipping and receiving department was not in the
unit, in view of the undisputed fact that none of them was
required to join the Shoeworkers pursuant to the union
security clause, that they were not covered by the pension
program, and, perhaps even more significantly, that when
employee Burroughs was transferred from production to the
shipping and receiving department, he was immediately
taken off the "check-off." I conclude, accordingly, that the
shipping and receiving employees did not, under the principle
of Sterilon, constitute an accretion to the existing production
and maintenance unit.
Having concluded that the shipping and receiving em-
ployees could not be accreted to the Shoeworkers recognized
and contractual unit, the Company could lawfully have
recognized the Shoeworkers for these employees only if they
chose to be represented by the Shoeworkers. This is so
whether or not these employees could constitute a separate
appropriate unit. Thus, the Company violated Section 8(a)(2)
and the Union 8(b)(I)(A) if in fact the Shoeworkers was not
authorized by a majority of those employees to represent
them. Whatever the case may be at the time the Shoeworkers
requested the Company to add the shipping and receiving
employees to the contractual unit , in late November, by
December 19, when they were added by the amendment
signed by the Company and the Union, the Shoeworkers
plainly did not represent them. For, several days before the
recognition was accorded, a clear majority of the employees
involved signed Teamster cards, clearly vitiating any prior
desire for Shoeworker representation that may have been
expressed. See, e.g., Allied Supermarkets, Inc.-Allied Discount
Foods Division, 169 NLRB 927 (1968); Intalco Aluminum
Corporation, 169 NLRB 1034 (1968). Indeed, although it
does not really matter" Chloros' request for recognition on
December 18 plainly alerted the Company to the fact that
there was at least a reason for questioning whether the
Shoeworkers represented these employees at that time.
I am inclined to agree that when Gidenan first asked Brin-
dis to add the shipping and receiving employees to the unit,
there was a sufficient showing that the employees wanted to
be added to have allowed the Company lawfully to recognize
the Shoeworkers. But by the time such recognition was
granted, that was no longer the case as has been shown.
The Union asserts, with convincing logic, that if the Shoe-
workers could not in any event constitute a separate appro-
priate unit, even assuming they were not "accretable," the
employees would probably have wanted representation by the
Shoeworkers in the larger unit, as they seemingly did in late
November, rather than no representation at all But "proba-
bly" is not a substitute for a showing of majority at the right
units, and does so in other plants, or the fact that the recognition clause in
the Company-Shoeworkers contract does not specifically exclude them
i 1 Because "scienter" is unnecessary to a Bernhard-Altmann (366 U S
713) violation As I read the cases, when a company adds an existing group
of employees to a unit and the group is not an "accretion," it is not even
the General Counsel's burden to show lack of majority, it is the Company
and Union's to show majority As the General Counsel has shown that the
Shoeworkers did not, on December 19, represent a majority of the shipping
and receiving employees, the more stringent test of Bernhard-Altmann has
in any event been met
LACONIA SHOE COMPANY, INC. 577
time, and clearly cannot negate the showing that these em-
ployees wanted the Teamsters Union, even if, arguendo, they
could not have the Teamsters. In view of their separate super-
vision, different duties, and separate location in the plant, it
is likely, in my view, that the Board would conclude that the
shipping and receiving employees could constitute a separate
appropriate "residual" unit at the time Cf. Weber Aircraft,
Division of Walter Kidde & Company, 191 NLRB 10 (1971);
Hotel Employers Association of San Francisco, 159 NLRB 143
(1966). But even if the Shoeworkers speculation that they
would vote for inclusion, given that choice against no repre-
sentation at all, is correct, the law is clear that the choice must
in fact be given, and when, as here, the signing of Teamsters
cards by a majority of the shipping and receiving employees
effectively negates any oral authorization earlier given to the
Shoeworkers, and even any written signatures on the petition
which was torn up and never shown to the Company or the
Union, the General Counsel has demonstrated that when
recognition was accorded the Shoeworkers on December 19,
that union did not represent the shipping and receiving em-
ployees.
As no bargaining order in -favor of the Teamsters is here
sought, it is not necessary for me to determine whether these
employees could in fact constitute a separate unit. And since
there is no need to find any other ground to support the
violation of Section 8(a)(2) and 8(b)(1)(A) than the conclu-
sion that the shipping and receiving employees were not an
accretion coupled with the fact that the Shoeworkers did not
represent a majority of them, I see no need to consider the
General Counsel's theory that Midwest Piping is applicable to
the instant case 12 For this same reason, it is not even neces-
sary to find that Chloros actually made a proper request for
recognition on December 18, in terms of finding a violation
of the Act in the Company's recognition the Shoeworkers the
next day. My finding that such a request was made merely
points up the fact that no de facto recognition of the
Shoeworkers was accorded before them, and that the
Shoeworkers did not represent a majority of the shipping
and receiving employees at that time.13
For all these reasons, I conclude that the recognition ac-
corded the Shoeworkers on December 19 for the shipping and
receiving employees was unlawful, and that Respondent
Company thereby violated Section 8(a)(2) and Respondent
Union 8(b)(1)(A) of the Act.
2. The alleged 8(a)(3) violation
unfair labor practice strike Because the Company reinstated
the seven shipping and receiving employees who struck, there
is no issue with 'respect to them But Dana Colby some
months prior to the strike, but after the unfair labor practices
which caused it, was transferred to a job in the production
and maintenance unit, he was no longer a shipping and re-
ceiving department employee at the time of the strike The
Company contends that the no-strike provision of their con-
tract with the Shoeworkers applied to Dana Colby, and made
his participation in the April 16 strike unprotected. The Gen-
eral Counsel counters by claiming (1) that the no-strike provi-
sion of the contract should not be read as barring a "sympa-
thy strike," (2) that the strike being an unfair labor practice
strike precluded invocation by the Company of the no-strike
clause, and (3) that, in any event, the Company condoned
Colby's conduct, should it be found to be otherwise un-
protected.
In support of the first proposition, the General Counsel
relies upon Gary-Hobart Water Corporation, 210 NLRB 742
(1974), where a Board majority, construing the no-strike
provision in that case, concluded that it did not apply to
sympathy strikers.15 Some of the facts relied upon by the
Board for its conclusion in Gary-Hobart are not present in the
instant case. Thus, there the no-strike clause was part of the
grievance provision of the contract (although there was also
a "catch-all" provision with the Union agreeing that there
should be no strikes and that disputes be taken up under the
grievance and arbitration procedures); and in the instant case,
the no-strike provision is separate from the grievance and
arbitration provisions of the contract. In Gary-Hobart the
employer attempted, without success, to broaden the no-
strike clause so as to cover sympathy strikes; there is no such
evidence here. 'I
As in Gary-Hobar4 there is here no express waiver in the
contract of the protection normally afforded to a sympathy
striker. It is difficult to determine whether the differences
noted between the clause, and its bargaining history, in this
case, and that in Gary-Hobart, suffice to make the clause in
the instant case, even though not specifying "sympathy"
strikes, applicable to such strikes. That determination de-
pends on how much weight the three members of Board
majority in Gary-Hobart was giving to the placement of the
no-strike clause in the contract, as well as to the bargaining
history.
If forced to express a view, I would reason that the princi-
pal thrust of the Board's view was the failure of the no-strike
The 8(a)(3) allegation with respect to Dana Colby presents
an interesting problem. There is no question but that the
strike of April 16 was caused at least in part by the unlawful
extension of recognition to the Shoeworkers for the shipping
and receiving room employees," and was, accordingly, an
12 For Midwest Piping to apply, it would be necessary to find that these
employees could constitute a separate appropriate unit, or else no real
question concerning representation would have been raised by the Team-
sters request for recognition William Penn Broadcasting Company, 93
NLRB 1104 (1951)
13 It also strongly suggests that Brindis' recognition of the Shoeworkers
I day later was motivated more by a desire to keep the Teamsters out than
by any sudden realization that these employees ought to be included in the
production and maintenance unit Brindis' own testimony , as noted above,
confirms this
14 Although the Company does not, of course, concede that the extension
of recognition was unlawful, I do not believe Respondent contests that it was
one of the causes of the strike, and in any event the evidence clearly shows
that it was Respondent does contend that the extension of recognition was
not the "sole" cause of the strike, but that does not prevent the "unfair labor
practice strike" conclusion
15 The strike in Gary-Hobart was economic in nature
16 There is a clause in the contract here permitting employees to refrain
from working on shoes coming from any place "where a strike or a lockout
or a labor controversy exists " This is argued by the General Counsel as
evidence that the no -strike clause does not preclude all strikes I do not
believe, on the facts of this case, that either party even thought of "sympathy
strikes" with respect to one segment of the Company 's employees support-
ing another , for it is evident , as witness the Company and Union 's arguments
respecting the 8(a)(2) aspect of this case, that neither party was thinking in
terms of an unrepresented group, or group represented by another union,
during their contractual relationship
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provision specifically to cover sympathy strikes, and that the
other factors happened to exist , and made it crystal clear to
the majority that sympathy strikes were hot intended to be
covered , but were not essential to the majority's determina-
tion Viewed in that light , the no-strike clause here would not
preclude, or make unprotected , a sympathy strike, and Colby
would be protected ." I do not believe it is necessary, how-
ever, to resolve that question here, for, as I have noted, Colby
was more than merely sympathizing with economic strikers,
he was joining an unfair labor practice strike. Furthermore,
although the unfair labor practices which caused the strike no
longer directly involved Colby , in view of his transfer to the
production unit , he was at least directly affected by it when
it occurred . It would seem that even if the no-strike clause
were construed , because of the differences between this case
and Gary-Hobart, as including sympathy strikes, the fact that
Colby was "sympathizing" with unfair labor practices strik-
ers, and the further fact that he had been directly affected by
the unfair labor practices , require the conclusion that he did
not lose his protection . Stated otherwise , I believe that for a
combination of the reasons set forth in Gary-Hobart and
Mastro Plasticsd8 a sympathetic unfair labor practice strike
would not be deemed unprotected short of an explicitly
stated , clear, and unequivocal waiver . Just as a broad no-
strike clause does not suffice to waive employees ' rights to
engage in unfair labor practice strikes against "serious" un-
fair labor practices , Arlan 's Department Store of Michigan,
Inc., 133 NLRB 802 (1961 ), the same broad no-strike clause
should not constitute a waiver against "sympathetic unfair
labor practice strikes."
Assuming , arguendo, that the unfair labor practices here
were not serious enough to permit a strike by the affected
employees had they been covered by a broad no -strike clause,
and assuming further that the no-strike clause was broad
enough to cover employees striking in sympathy with eco-
nomic strikers , the coalescence of "sympathy" and "unfair
labor practice ," in my view , is enough to distinguish this case
both from the majority 's position in Arlan 's, and the minori-
ty's position in Gary-Hobart. The Board 's Arlan's doctrine,
which continues to represent the Board 's view (Member Fan-
ning, who dissented in Arlan 'scontinues to dissent now, Dow
Chemical Company, 212 NLRB 333 (1974), is perhaps, by
panty of reasoning , the best support for my analysis. Thus,
the same no-strike clause that would not have been sufficient
to ban strikes against serious unfair labor practices was
deemed sufficient to make unprotected strikes against rela-
tively minor unfair labor practices . The clause in Arlan'swas
the same as the clause in Mastro, both strikes were unfair
labor practice strikes, but the Board was willing to read into
that no-strike clause a prohibition even of unfair labor prac-
tice strikes when the unfair labor practices were not "seri-
ous," something it refuses to do when they are serious To me,
this is ample warrant for refusing to read into a broad no-
11 I cannot agree with the Company' s argument that Colby was un-
protected because he alone of the production employees engaged in the
strike His making common cause with the shipping and receiving em-
ployees suffices to make his conduct "concerted " Cf NL R B v Peter
Cailler Kohler Swiss Chocolates Company, Inc., 130 F 2d 503, 505-506
(C A 2), Kellogg Company v NL R B, 457 F 2d 519, 522, (C A 6, 1972)
18 Mastro Plastics Corp, and French-American Reeds Mfg Co, inc v
NLRB 350 U S 270 (1956)
strike clause a prohibition against unfair labor practice sym-
pathy strikes, even assuming the same clause could have read
into it a prohibition against economic sympathy strikes. In
short, if the Board can construe the same clause differently
depending on the quality or quantity of an unfair labor prac-
tice, surely it can construe the same clause differently depend-
ing on whether a sympathetic striker is supporting an eco-
nomic strike or an unfair labor practice strike.
As to whether the unfair labor practices were in fact "seri-
ous," I expect one must look to Colby's situation at the time
of the strike, rather than to the seven shipping and receiving
employees. And perhaps, because Colby was no longer di-
rectly affected by the unlawful inclusion of the shipping and
receiving employees in the Shoeworkers contract with the
Company, the effect upon him at the time of the strike could
not be characterized as serious . But, as I have indicated, I do
not believe a no-strike clause can be construed as a waiver of
employees' rights to engage in a strike in sympathy with
unfair labor practice strikers short of a much more explicit
waiver than the dissenters in Gary-Hobart thought sufficed
(by a no-strike clause alone) for a sympathetic economic
strike. For these reasons, I conclude that the Company, in
violation of Section 8(a)(3) and (1) of the Act, unlawfully
refused to reinstate Dana Colby
The General Counsel, as an alternative theory, claims that
the Company condoned Colby's violation of the no-strike
provision (assuming that provision otherwise to be applica-
ble). Although it is true that Brindis said , when the strikers
requested reinstatement , that their jobs had been filled, but
that they would be placed on a preferential hiring list, the
Company almost immediately put the seven shipping and
receiving employees back to work,19 but would not take
Colby back, Company counsel conceding at the hearing that
Colby had no prospects of reemployment because of his viola-
tion of the no-strike clause. With the events following one
another in rapid succession, I do not believe there was any
conscious intent to "condone" Colby's violation of the no-
strike clause. I have found, of course, that Colby was
nonetheless protected, for the reasons fully set forth above.
But in the event that he was subject to the no-strike clause,
I would dismiss the complaint in this respect, rejecting the
General Counsel's condonation theory.
The General Counsel also suggests that if Colby be found
an economic striker, rather than an unfair labor practice
striker, the question whether a position for him became avail-
able, so as to bring Laidlaw into play, should be handled at
the compliance stage I do not see any possibility, regardless
of the validity or lack of it of any of my reasoning above, of
Colby's being deemed a protected economic striker. If no
8(a)(2) is found with respect to the Company's December 19
recognition of the Shoeworkers for the shipping and receiving
employees, then they too were covered by the no-strike provi-
sion , their own strike was unprotected, and Colby's joining
them a fortiori was unprotected, with no need to construe the
no-strike clause vis-a-vis Gary Hobart, or Mastro Plastics, or
any combination thereof
19 Although they too were "covered" by the no-strike provision at the
time, it is obvious that the Company wisely did not rely on that, with such
coverage already the subject of a complaint alleging its illegality
LACONIA SHOE COMPANY, INC
Upon the basis of the foregoing findings of fact and the
entire record, I make the following.
CONCLUSIONS OF LAW
1. Respondent Company, by recognizing Respondent
Union as the collective bargaining representative of its ship-
ping and receiving department employees , has engaged in
unfair labor practices within the meaning of Section 8(a)(2)
and (1) of the Act
2. Respondent Union , by obtaining recognition as the ex-
clusive bargaining representative of the Company's shipping
and receiving department employees , has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A) of
the Act.
3. Respondent Company, by discriminatorily refusing to
reinstate Dana Colby, has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act Having found that Re-
spondent Company unlawfully recognized Respondent
Union as the bargaining representative of the Company's
shipping and receiving department employees, I shall recom-
mend that Respondent Company withdraw and withhold all
recognition from Respondent Union as the collective-bar-
gaining representative of such employees and cease giving
effect to the December 19, 1973, agreement with respect to
them, or to any extension, renewal, modification thereto, or
to any superseding agreement, unless and until Respondent
Union is certified by the Board as such representative.
I shall also recommend that Respondents, jointly and sev-
erally, reimburse all shipping and receiving department em-
ployees, present and former, for dues and initiation fees un-
lawfully exacted from them as a result of the aforesaid
unlawful recognition, with interest, as provided in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962). See N.L.R.B. v.
Getlan Iron Works, Inc., 377 F.2d 894 (C.A. 2, 1967).
Having found that Respondent Company discriminatorily
refused to reinstate employee Dana Colby, I shall recommend
that it reinstate him, with backpay as provided in F. W.
Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
ORDER20
579
A. Respondent Laconia Shoe Company, Inc., Laconia,
New Hampshire, its officers, agents, successors, and assigns,
shall:
I Cease and desist from:
(a) Encouraging membership in United Shoeworkers of
America, AFL-CIO, CLC, or in any other labor organization
of its employees by recognizing such labor organization as the
exclusive representative of its shipping and receiving depart-
ment employees at a time when such labor organization has
not been designated by a majority of those employees.
(b) Giving effect to its agreement of December 19, 1973,
extending recognition to the aforesaid labor organization for
the shipping and receiving department employees unless and
until said labor organization has been duly certified by the
National Labor Relations Board as the exclusive representa-
tive of such employees.
(c) Interfering with, restraining, and coercing employees in
the exercise of rights guaranteed in Section 7 of the Act, and
discriminating in regard to hire, tenure, and other conditions
of employment in order to discourage union membership by
refusing to reinstate employees because they engaged in pro-
tected concerted activities.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Withhold and withdraw all recognition from Respond-
ent Union as the exclusive representative of its shipping and
receiving department employees unless and until the said
labor organization has been duly certified by the National
Labor Relations Board as the exclusive representative of such
employees.
(b) Jointly and severally with Respondent Union, reim-
burse the shipping and receiving employees for any initiation
fees, dues, or other moneys unlawfully exacted from them, in
the manner set forth in the remedy.
(c) Offer Dana Colby immediate and full reinstatement to
his former position, or if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights or privileges, and make him whole
as provided in the Remedy.
(d) Present and upon request make available to the Board
or its agents, for examining or copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its place of business in Laconia, New Hamp-
shire, copies of the attached notice marked "Appendix
A."21 Copies of said notice, on forms provided by the Re-
gional Director for Region 1, after being duly signed by Re-
spondent's representative, shall be posted immediately upon
receipt thereof, and be maintained by it for 60 consecutive
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the works in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days thereafter, in a conspicuous place, including all places
where notices to employees are posted. Reasonable steps shall
be taken by the Respondent Company to insure that said
notices are not altered, defaced, or covered by any other
material
(f) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps have been taken
to comply herewith.
B. Respondent United Shoeworkers of America,
AFL-CIO, CLC, its officers, representatives, and agents,
shall-
1. Cease and desist from:
(a) Accepting exclusive recognition as the representative of
the shipping and receiving department employees of the Re-
spondent Company, at a time when it was not designated as
the exclusive representative by a majority of such employees.
(b) Giving effect to its agreement of December 19, 1973,
with Respondent Employer, which extends recognition to it
for the shipping and receiving department employees , unless
and until it has been duly certified by the National Labor
Relations Board as the exclusive representative of such em-
ployees.
(c) In any like or related manner restraining or coercing
employees of Respondent Employer in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act
(a) Jointly and severally with Respondent Company, reim-
burse said Company's shipping and receiving employees for
any initiation fees, dues, or other moneys unlawfully exacted
from them, in the manner set forth in the Remedy.
(b) Post at its business office copies of the attached notice
marked "Appendix B."22 Copies of said notice, on forms
provided by the Regional Director for Region 1, after being
duly signed by the Union's representative, shall be posted
22 See fn 21, supra
immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its members are customarily
posted. Resonable steps shall be taken by Respondent Union
to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director, in writing, within 20 days
from the date of this Order, what steps have been taken to
comply herewith.
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT accept exclusive recognition as the rep-
resentative of the shipping and receiving department em-
ployees of Laconia Shoe Company when we have not
been designated as the exclusive representative of such
employees.
WE WILL NOT give effect to our agreement of Decem-
ber 19 , 1973, with Laconia Shoe Company , unless and
until we have been duly certified by the National Labor
Relations Board as the exclusive representative of such
employees
WE WILL jointly and severally with Laconia Shoe
Company make whole the shipping and receiving em-
ployees for dues and initiation fees paid by them to us.
WE WILL NOT in any like or related manner restrain or
coerce employees of the above -named Company in the
exercise of the rights guaranteed in Section 7 of the Act.
UNITED SHOEWORKERS OF AMERICA,
AFL-CIO, CLC