Lenox Shoe Co., Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1937

4 N.L.R.B. 372 (N.L.R.B. 1937)

In the Matter of LENOX SHOE COMPANY, INC. and UNITED SHOE
WORKERS OF AMERICA, AFFILIATED WITH THE COMMITTEE FOR INDUS-
TRIAL ORGANIZATION
Cases Nos. C-255 and R-209.-Decided December 3, 1937
Shoe Manufacturing Industry-Interference, Restraint, or Coercion: coercing
and intimidating employees to join favored labor organization; 'permitting
organizers of favored organization to address employees at meetings in plant
on company time ; permitting and designating certain employees to solicit for
favored organization on company time and property ; requesting local business-
men to intervene and decide what labor organization employees should join;
signing closed shop contract with favored labor organization before determin-
ing majority status of-Closed Shop Contract: with labor organization
assisted and fostered by unfair labor practices, invalid, respondent ordered to
cease and desist giving effect thereto-Discrimination: discharge-Strike-Re-
instatemnent Ordered: of employees discharged ; on application for reinstatement
of employees who struck because of unfair labor practices-Back Pay: awarded
to employees discharged-Investigation of Representatives : controversy con-
cerning representation of employees ; rival organizations ; substantial doubt as
to majority status; Unit Appropriate for Collective Bargaining: production em-
ployees in three of employer's plants ; interchange of employees between plants ;
no controversy as to-Election Ordered: date to be determined in future, upon
compliance with Board's order.
Mr. Edward Schneider, for the Board.
Mr. Israel Bernstein, of Portland, Me., for the respondent.
Mr. A. Raymond Rogers, of Waterville, Me., for United Shoe
Workers of America.
Mr. George Karelitz, of Haverhill, Mass., for Boot and Shoe
Workers' Union.
Mr. Paul S. Kuelthau, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by the United Shoe Workers of America,
herein called the U. S. W., the National Labor Relations Board,
herein called the Board, by A. Howard Myers, Regional Director
372
DECISIONS AND ORDERS 373
for the First Region (Boston, Massachusetts), issued its complaint
dated July 19, 1937, against Lenox Shoe Company, Inc., Freeport,
Maine, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1), (2), and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. The complaint and notice of hearing
thereon were duly served upon the respondent.
In respect to the unfair labor practices the complaint, as amended,
alleged in substance that the respondent discharged Russell Dorr on
June 7, 1937, James B. Hill on June 17, 1937, and Mary Coffin
on June 25, 1937, and has since refused to reinstate them because
They, and each of them, joined and assisted the U. S. W. and en-
gaged in concerted activities with other employees of the respondent
for the purpose of collective bargaining and other mutual aid and
protection; that the respondent coerced and encouraged its employees
to join the Boot and Shoe Workers' Union, affiliated with the Ameri-
can Federation of Labor, herein called the B. & S. W. U.; that the
respondent by such acts and other acts has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. '
On July 23, 1937, the respondent filed an answer admitting the
nature and scope of its business, but denying that it was engaged in
interstate commerce, admitting the discharge of Russell Dorr, but
denying the other discharges and all allegations of unfair labor
practices, and alleging that it had signed a closed shop agreement
with the B. & S. W. U. on June 9, 1937, and had since endeavored
faithfully to abide by the terms thereof.
On June 16, 1937, the U. S. W. filed a petition with the Regional
Director alleging that a question affecting commerce had arisen con-
cerning the representation , of the production employees of the re-
spondent and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the Act. On July 20, 1937,
the Board authorized the Regional Director to conduct an investi-
gation and provide for an appropriate hearing upon due notice, and
ordered the petition and complaint cases consolidated for purposes
of hearing. Notice of the hearing on the petition was duly served
on the respondent.
Pursuant to the notices of hearing duly served upon the respond-
ent, a hearing was held in Freeport, Maine, on July 26, 27, and 28,
1937, before Irving G. McCann, the Trial Examiner duly designated
by the Board. The Board, the U. S. W., and the respondent were
represented by counsel. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
374 NATIONAL LABOR RELATIONS BOARD
issues was afforded to all the parties. At the beginning of the hear-
ing, the Trial Examiner allowed the petition of the B. & S. W. U.
to intervene, but ruled that counsel for the B. & S. W. U. would be
required to confine himself, in cross-examination and introduction of
evidence, to the allegation of domination of the B. & S. W. U. by the
respondent and to the issues raised by the petition.
After the introduction of a stipulation concerning the respondent's
business, the Trial Examiner denied the respondent's motion to dis-
miss the complaint on the ground that the respondent was not en-
gaged in interstate commerce. The respondent excepted to this and
other adverse rulings of the Trial Examiner.
Counsel for the B. & S. W. U. withdrew from the hearing on the
morning of the second day because the Trial Examiner refused to
allow him to cross-examine in regard to the discharges and in regard
to the circumstances surrounding a sit-down strike by the U. S. W.
We have reviewed the conduct and the rulings of the Trial Examiner
and find that he did not unduly restrict the participation in the hear-
ing of counsel for the B. & S. W. U.
At the conclusion of the evidence for the Board and the U. S. W.,
the respondent moved to dismiss the complaint and the petition
on the ground that the evidence did not show that any of the em-
ployees of the respondent were members of the U. S. W. when the
complaint and petition were filed. At that time the respondent also
moved to dismiss the complaint in regard to James B. Hill and Mary
Coffin on the ground that at the time of their discharges the respond-
ent was operating under a closed shop contract with the B. & S. W. U.
and Hill and Coffin were not members of the B. & S. W. U. The
Trial Examiner denied those motions. Those rulings are hereby
affirmed.
Counsel for the respondent, claiming that' the hearing had not
been fair and impartial, refused to introduce any evidence and the
hearing was adjourned at the close of the evidence for the Board
and the U. S. W.
We have reviewed the conduct and the rulings of the Trial Exam-
iner and find that he was fair and impartial throughout the hearing
and committed no prejudicial errors. His rulings are hereby affirmed.
On September 10, 1937, the Trial Examiner filed his Intermediate
Report finding that the respondent had engaged in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and
(3) and Section '2 (6) and (7) of the Act, but making no finding in
regard to a violation of Section 8 (2).
The Intermediate Report was served on the parties on September
16, 1937 and no exceptions to it were filed. On September 30, 1937,
the Board issued an amendment to the complaint in order to conform
DECISIONS AND ORDERS 375
the allegations to the proof . No answer was filed to the complaint
as amended.
Upon the entire record in both cases , the Board makes the fol-
lowing :
FINDINGS OF FACT
I. TILE BUSINESS OF TIIE RESPONDENT
The respondent is a corporation organized under the laws of the
State of Maine with its principal office and place of business at Free-
port, Maine, and a branch office in Boston , Massachusetts. It is
engaged in the production , sale, and distribution of women's McKay,
women 's cemented , men's, and boys ' shoes.
The business is conducted in three factories , two of which are
physically connected and all of which are enclosed within one fence
surrounding the entire property. The respondent occupies these fac-
tories rent free, paying only taxes , maintenance , and insurance.
They are owned by the Freeport Realty Company , a corporation
organized to hold business property and to induce business to come
to Freeport. The stock of the Freeport Realty Company, which is
in the nature of a non-profit corporation although it is not organized
as such, is owned by business men of Freeport.
The officers of the respondent are: Morris Levine, president; Hy-
man Mersky, vice-president and general manager; Maurice Mersky,
treasurer. These three, together with Max Mersky, who is superin-
tendent of the factory making men's shoes, comprise the Board of
Directors of the corporation. Other members of the Levine and
Mersky families are also active in conducting the operations of the
plant, either as foremen or otherwise.
In 1936 the respondent purchased $1,447,007.65 worth of leather,
rubber, cloth, fiberboard, nails, thread, and other raw materials used
in the manufacture of shoes. In the period from January through
June 1937, its raw material purchases amounted to $583,306.35. Prac-
tically all of the raw materials are purchased outside of the State of
Maine and shipped by truck, rail, express, and parcel post to the
respondent 's plant in Freeport , Maine.
In 1936 the respondent, which manufactures only to order, manu-
factured and sold 2,003,043 pairs of shoes, and from January through
June 193 7, it manufactured and sold 990 ,491 pairs of shoes. Prac-
tically all of the respondent 's shoes are sold and transported out of
Maine to other states of the United States. The respondent ships by
truck, rail, boat, and parcel post. The average time between the
receipt of the raw material by the respondent and the shipment of
the shoes made therefr"om is four weeks.
67573-S8-vol iv-25
376 NATIONAL LABOR RELATIONS BOARD
The respondent employs five salesmen with headquarters at the
respondent 's branch office in Boston who travel to all parts of the
United States.
On June 4, 1937 , the respondent had 656 employees , and on June
25th it had 800.
H. THE UNIONS
The United Shoe Workers of America, affiliated with the Com-
mittee for Industrial Organization, is a labor organization admitting
workers in the shoe industry to membership either as members at
large or in local unions. On July 27, 1937, Local No. 145 was char-
tered with jurisdiction over shoe workers in Freeport , Maine.
The Boot and Shoe Workers' Union , affiliated with the American
Federation of Labor, is a labor organization which admits workers
in the shoe industry to membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
On April 20, 1937, one Roland Dodge, an employee of the respond-
ent, went to Lewiston , Maine, to seek assistance from the U. S. W. in
organizing the respondent 's plant. No organizers were available at
the time. On May 1st Dodge again went to Lewiston, and this time
he returned with about 75 application cards for the U. S. W. but
without further assistance for an organization campaign among the
respondent 's employees . Dodge passed these cards out among the
respondent 's employees and many of them were signed and returned
to him . He took the cards , which were returned to the U. S. W.
office in Lewiston.
On May 24, 1937 , Walter Brown , an employee of the respondent,
approached Russell Dorr , also one of the respondent 's employees, and
asked him to try to enlist the help of the U . S. W. in Lewiston in
organizing a local of the U. S. W. among the respondent's employees:
in Freeport . Through his stepfather , Sergius Boulay, Dorr got in
touch with Dominic Charpentier , financial secretary of Local No. 114
of the U. S. W ., in Lewiston.
On May 31st Charpentier came to Dorr's home in Freeport and
brought 550 U. S. W. application cards. Four employees of the
respondent , Delton Cook , George Smith , Boulay, and Dorr, were
present at the time. On June 1, 1937, Dorr, Smith , and Cook started
passing out these cards among the employees . Many of the cards
were signed and returned.
During May 1937, Hyman, Maurice, and Max Mersky had been
talking about a union in their plant to various people in Freeport.
In those conversations they had always expressed themselves in
DECISIONS AND ORDERS 377
favor of a so-called independent union and opposed to a national
union of any sort. Thus Hyman Mersky said on one occasion that
they had been dodging national unions for ten years and they would
never recognize one in Freeport but would move to a shoe center
to do that. The Merskys seem to be on very familiar terms with
their employees, and the record shows several discussions of unions
with various individual employees. The respondent opposed any
national union until the beginning of June, after which its antipathy
seems to have been directed against the U. S. W. and the Committee,
for Industrial Organization.
On the morning of June 2, 1937, four of the Merskys went to the
Freeport hospital to see Dr. Harvey Howard, president of the local
Chamber of Commerce. Several local business men were present.
The Merskys told them that they should decide whether the plant
should be organized by the Committee for Industrial Organization,
the American Federation of Labor, or an independent union. That
afternoon Paul Powers, it Freeport attorney who had been at the
meeting at the hospital, %vent to Lewiston to find out how to organize
an independent union.
When Powers returned that evening he went to Dr. Howard's
office, where the meeting of that morning had reconvened without the
Merskys. Powers explained the methods of organizing an independ-
ent union. Leslie B. Bailey, the chief of police and secretary of the
Chamber of Commerce, then announced that there were two A. F.
of L. organizers outside who were waiting to talk to the meeting.
Bailey said he had found them on the street and talked to them and
that they seemed to be a "pretty clean outfit." 1 The two organ-
izers, Douglas and Ford, were then brought in. They explained their
method of organizing and said that after.they arrived in Freeport
they found that another union had started organizing at the re-
spondent's plant and that they would leave if the townspeople
wanted them to. They also stated that they would appreciate any
help the businessmen would give them in organizing the respondent's
plant. The meeting decided that Powers and Howard should call a
meeting of the shoe workers in Freeport for some time the following
week.
The next day, at the suggestion of Hyman Mersky, Powers called
the presidents of the Chamber of Commerce and Freeport Realty
Company, and a meeting of the directors of the organizations was
arranged for that afternoon. The meeting was held in the Women's
Club. The Merskys and their attorney, Bernstein, were present. The
' E J. Hayes , the station agent at Freeport , is reported to have said , when presiding
at the first B & S W U. meeting in the town hall, that he had written to the B. &
S. W. U at the request of some of the respondent ' s employees and asked them to send
organizers to Freepoit
378 NATIONAL LABOR RELATIONS BOARD
Merskys refused to speak, and Bernstein spoke for them. Bernstein
stated that the respondent was losing orders because of threats of
labor trouble in its plant and that it was up to the townspeople to
choose among the Committee for Industrial Organization, the Ameri-
can Federation of Labor, and an independent union. Douglas and
Ford, the B. & S. W. U. organizers, then appeared, and the Merskys
and Bernstein left. After listening to Douglas and Ford, the meet-
ing decided to draw up a letter to the respondent's employees recom-
mending that they join the B. & S. W. U. That letter was drawn
up the same evening in Powers' office by a committee appointed for
that purpose.
On June 4th this letter 2 from the Chamber of Commerce and
the directors of the Realty Company was circulated in the re-
spondent's plant.3 It bore the names of the leading business men of
Freeport. At least one of the respondent's employees, Mary Coffin,
was told by Ida Smith 4 that those merchants had agreed not to
extend credit to anyone who did not join the B. & S. W. U.
That same afternoon a meeting of the employees of the respondent
was called in the cutting room of the men's shop. The power in the
plant was shut off by Myer Levine, one of the foremen, and the
workers were told by their foremen to go to the meeting. Three
B. & S. W. U. organizers, Kennedy, Douglas, and Ford, were pres-
ent and spoke. Kennedy said that the Merskys had chosen the
B. & S. W. U. in preference to the U. S. W. as the lesser of two evils.
All of them spoke generally of the advantages of the B. & S. W. U.
and said that the B. & S. W. U. knew how to handle employers of
the Mersky type. Ford requested signatures to a petition asking
that the B. & S. W. U. be recognized as the bargaining agency for
the employees. Max and Hyman Mersky stood immediately outside
of the opening of the cutting room in the stitching room where they
could see and hear everything that went on.
Immediately after this meeting Bill Hindley, a cutter in respond-
ent's plant, went through the cutting room asking, employees to
sign B. & S. W. U. cards. One of the Merskys was always near him,
in such position that he could see what was happening. The organ-
izers helped Hindley by talking to various people at their machines.
Although Hindley had been working as a cutter he did not return
to his cutting bench between June 4th and June 28th because he
was busy circulating cards and organizing for the B. & S. W. U.
2 Board's Exhibit No 20 and No 26 Exhibit No 26 bears more names because Hayes
had taken it around to the merchants not at the meeting and they had authorized adding
their names to it Both appear to have been circulated in the plant
3 The record does not reveal who had charge of circulating the letter . Ida Smith,
one of the r espondent ' s production employees without supervisory duties , showed it to
Mary Coffin . In general , it just seems to have been handed from person to person
4 Ida Smith is the woman employee who was chosen to solicit membership in the
B & S. W U on company time She is non-supervisory
DECISIONS AND ORDERS 379
On June 7th at about nine o'clock in the morning, Ernest Wash-
burn, an employee in the "making room" at the respondent's plant,
overheard Max Mersky giving detailed instructions to Hindley about
solicitation for B. & S. W. U. in the "making room". Mersky told
Handley to start at one end of the room where the younger people
were and to tell them either to join the B. & S. W. U. or to get out
of the factory. Mersky and Hindley apparently thought they might
have some trouble with some of the older employees there and dis-
cussed them individually. Among the men so discussed were Dodge,
Williams, and Washburn. Mersky instructed Hindley to tell Dodge
and Williams that they could sign or not as they wished, but in-
sisted, over Hindley's objection, that Washburn be told either to
sign or get out. Washburn followed Hindley upstairs to the "mak-
ing room" after this conversation and watched him follow Max
Mersky's instructions.
When Hindley came to Washburn he asked him to sign a B. &
S. W. U. card. Upon Washburn's refusal, Hindley told him that he
either would have to sign one or get out. Washburn refused to sign
and also refused to give up his job. Hindley moved on to Williams,
who worked next to Washburn. Williams was asked to sign but was
told that it was optional with him, that he could either sign or not as
he wished. Hindley talked to everyone in the "making room" that
morning.
At noon on June 7th, Russell Dorr, who had been very active in
starting the U. S. W. and in soliciting membership in it, was dis-
charged. The facts surrounding his discharge are discussed below.
At about 2:30 in the afternoon of June 7th, there was a meet-
ing of the employees, called by the management, in the yard at
the respondent's plant. The back of one of the respondent's trucks
was used as a platform and from it Hyman Mersky and two of the
respondent's salesmen, Hurd and Walker, talked to the employees.
Hyman Mersky spoke first and said that unless the employees chose
the right agency to represent them, the respondent was going to leave
Freeport. After he had finished, Hurd and Walker spoke and urged
the employees to choose the American Federation of Labor because
that was best for them.
That evening, June 7th, the B. & S. W. U. had a mass meeting in
the town hall. E. J. Hayes, the station agent and a member of the
Chamber of Commerce, presided, and Kennedy, Douglas, and two
women shoe workers from Haverhill, Massachusetts, spoke. After
the meeting four of the Merskys-Hyman, Louis, Max and Maurice-
came into the hall and talked to the organizers and several of the
respondent's employees. The meeting was well attended but was not
very orderly, since some of the audience were opposed to the B. &
S. W. U.
380
NATIONAL LABOR RELATIONS BOARD
On June 8th the U. S. W. held a meeting at the Nordica Theater
in Freeport, the town hall being no longer available for meetings
because the selectmen objected to its use by "outsiders." Walker, the
respondent's salesman who had spoken at the meeting in the respond-
ent's yard the day before, went to this meeting and refused to leave
even when requested to do so by the police. At that meeting an
organization committee was appointed and applications passed out,
signed, and returned.
On June 9th the B. & S. W. U. sent a list of its members among
the respondent's employees to the respondent, stating that it repre-
sented more than 65 per cent of the employees. The respondent did
not check this list against its pay roll or even count the number of
names on the list. On the basis of this representation the respondent,
on the same day, entered into a closed shop contract with the
B.&S.W.U.
The respondent and the B. & S. W. U. made no immediate attempt
to put this contract into effect. In fact its terms do not appear to
have been revealed to any of the respondent's employees until June
29, 1937.
James B. Hill and Mary Coffin were discharged by the respondent
on June 17 and June 25, 1937, respectively, under circumstances
discussed below.
On the afternoon of June 28th a committee of the U. S. W. called
on the respondent to discuss the discharge of Mary Coffin. The com-
mittee started to talk to Hyman, Louis and Maurice Mersky. As
soon as the committee stated whom they represented, Hyman and
Maurice left. The committee then asked Louis Mersky to reinstate,
Mary Coffin and not to discriminate further against the U. S. W.
After listening to their demands, Louis Mersky stated that the re-
spondent was not interested and left the office. The committee went
out into the factory and called a sit-down strike. Mary Coffin, who
had gone to see the Merskys with the committee, was escorted out
of the factory by the Chief of Police and started picketing the gates
of the plant. The sit-clown strike lasted only the rest of the after-
noon. The employees then left the plant.
When the employees of the respondent reported for work on
Tuesday, June 29th, they were met at the gates by city police and
special deputies, who admitted them in groups of six or seven. Some
of those admitted returned saying that they were told that they had
to sign a B. & S. W. U. card in order to go to work. Upon receiving
this information, the U. S. W. resumed the strike and established a
picket line.
While the strike of the U. S. W. continued, those who wished to
work passed in and out through the picket line every day and there
was no violence. The key men who would provide the work for the
DECISIONS AND ORDERS • 381
rest of the factory refused to go through the picket line. On July
15th the president of the Freeport Local of the B. & S. W. U. spoke
to `the Freeport Chamber of 'Commerce and the directors of the Free-
port Realty Company, stating that the men in the factory were be-
coming very angry because there was not enough work and that there
would be violence if the picket line remained around the plant. The
B. & S. W. U. wanted the city or county officials to take some action
to break up the picket line and get the employees back to work.
Nothing of that nature was done, apparently because the officials
could find no ground for interference so long as the picketing was
peaceful. On July 21st the picket line was abandoned by agreement
between the parties.
The facts set forth above show that the respondent interfered with,
restrained, and coerced its employees in the exercise of their right to
self-organization by seeking to influence them to join the B. &. S. W. U.
in preference to the U. S. W. This was accomplished by meetings for
the purposes of organization on company time and company property,
at one of which organizers for the B. & S. W. U. were present and
spoke. These meetings clearly indicated to the employees the re-
spondent's preference for the B. & S. W. U. The meeting which
the respondent called in its yard on June 7th and at which Hyman
Mersky, Hurd, and Walker spoke was clearly an attempt on the
part of the respondent to coerce and intimidate its employees into
joining the B. & S. W. U.
The action of the Chamber of Commerce and the directors of the
Realty Company was induced by the respondent's request to those
groups to meet and decide what labor organization the respondent's
employees should belong to, and as such is clearly intimidation and
coercion by the respondent. The Chamber of Commerce is vitally
interested in keeping respondent in' Freeport. The threats of the
officers of the respondent to move, in view of the fact that the re-
spondent has no investment in Freeport, were sufficient to arouse the
Chamber of Commerce to act. This is what the respondent clearly
intended.
The fact that Max Mersky instructed Hindley as to what to say
to persons in the "making room" who refused to sign B. & S. W. U.
cards further shows the respondent's attempt to take part in the
choice of a union by its employees and is another instance of inter-
ference by the respondent with their organization.
The respondent's actions in signing the closed shop contract with
the B. & S. W. U. after practically no negotiation and without count-
ing the names on the membership list submitted or checking those
names against its pay roll are, under the circumstances, further
indication of its desire to create the B. & S. W. U. as the spokesman
for its employees and to reinforce this partnership by concluding a
382 NATIONAL LABOR RELATIONS BOARD
contract which would force employees into the union so favored.
These actions of the respondent, together with the discharges of
Russell Dorr, James B. Hill, and Mary Coffin which showed that the
respondent was willing to enforce its wishes by discharges if neces-
sary, clearly constitute interference, restraint, and coercion of em-
ployees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purpose of collective bargaining or other mutual
aid or protection, and we so find.
B. The Discharges
Russell Dorr. Dorr had worked for the respondent for approxi-
mately three years prior to his discharge on June 17, 1937. He was
employed as a stitcher until December 25, 1936, but was then trans-
ferred to vamping, which work he was engaged in at the time of his
discharge. Dorr agreed to learn vamping, which was a new job to
him and which required special skill, at the respondent's request.
For the first few months that he was on vamping,'his work was
watched closely and he was not given the more difficult jobs. How-
ever, as time went on and his work seemed satisfactory, his work was
not watched and he took the general run of work as it came through.
The testimony clearly shows that it requires about a year's experience
for one to become an expert vamper and that Dorr could not be ex-
pected to turn out flawless work on all types of shoes in his sixth
month on the job. The evidence is undisputed that Dorr was not
watched by anyone after he had been vamping for a few months.
On June 1st Dorr became extremely active in passing out the
U. S. W. cards. Much of this.was done in spare moments at the
factory and there is no doubt that the respondent, whose officers were
on familiar terms with the employees, heard of this activity at once.
On June 2nd Max Mersky, superintendent of the men's factory,
began to keep a eery close watch bn Dorr. Max Mersky watched
Dorr for 15 or 20 minutes at a time, three or four times a day. This
was much more attention than Max paid to any other employee in
the factory and was more than had ever been given to Dorr even in
his early days on vamping. On one occasion Max criticized his work
and told him that it was not any good and that he had better be care-
ful because the Merskys did not want him in the factory, a clear
indication that the respondent was looking for a pretext upon which
to discharge Dorr. Later in the same day, June 2nd, Max brought
back a shoe which he said Dorr had vamped incorrectly. Dorr con-
sulted Chase, who worked next to him and who had been vamping
intermittently for 25 years and was considered an expert, and they
DECISIONS AND ORDERS 383
decided that the mistake lay in the next operation, not in the vamp-
ing. After the next operation was redone the shoe was sent through
and passed inspection.
Dorr was at the B. & S. W. U. meeting in the cutting room on
Friday, June 4th, and objected when Ford asked the employees to
sign the petition. He asked that the employees be given a day or
two to think the matter over before being asked to sign. His request
was not granted.
On Monday, June 7th, Max Mersky resumed his close supervision
of Dorr's work. During the morning he approached Dorr and in-
formed him that he had spoiled a case of suede bals 6 through im-
proper vamping. Dorr offered to pay for any damage attributable
to him and Mersky said that they did not do business that way.
That noon Dorr was discharged.
Emory Chase, who had been vamping for the respondent for two
years, testified that it was quite usual for a vamper to pay for work
he had spoiled, that he and three or four other vampers had paid the
respondent for work they had spoiled, and that he knew of no vamper,
aside from Dorr, ever discharged by the respondent without being
accorded an opportunity to pay for spoiled work. This evidence,
which was not denied by the respondent, clearly shows that Dorr was
not discharged for spoiling the suede bals. When we consider that
although Dorr was a new man at vamping, lie was considered efficient
enough not to be watched closely by his foreman for some months
before his discharge, and that it was not until after he became active
in organizing the U. S. W. that the respondent began to be worried
about the quality of his work, we cannot escape the conclusion that
inefficient work was the pretext adopted by the officers of the respond-
ent to rid themselves of an employee who was active in organizing his
fellows. This conclusion became increasingly obvious when we real-
ize that it was not Dorr's foreman whb watched his work and sought
to. correct him on it, but the factory superintendent. It is beyond
credence that the superintendent of the factory would devote such an
amount of time to watching each employee whose work he suspected
might not be quite up to standard. The conclusion that Dorr was
discharged because of his activity in organizing the U. S. W. is
inescapable.
We find that the respondent discharged Russell Dorr on June 7,
1937 and discriminated against him with respect to hire and tenure
of employment under the circumstances set forth above, thereby
discouraging membership in the U. S. W.
5 A type of . shoe most difficult to vamp . Dorr had worked on the samples for
that type of shoe , and they had passed inspection , but aside from that had not done any
work on suede bals.
384 NATIONAL LABOR RELATIONS BOARD
James B. Hill. Hill started to work for the respondent on Feb-
ruary 15, 1937. For a few days he helped his wife on her treeing
jack,c but he soon was put on a treeing jack of his own. On April
27, 1937, Hill was laid off, but he was reemployed three weeks later.
On June 1st Hill joined the U. S. W. He was made a member of
a committee at the meeting of the U. S. W. at the Nordica Theater
on June 8th which was attended by Walker, one of the respondent's
salesmen who spoke at the meeting of Jude 7th called by the respond-
ent. From June 1st on, Hill had application cards and passed them
out in the factory. He testified that he would give them to people
in the smoking room and to people who came to his machine to talk
to him. The respondent made no effort to stop these activities.
On June 15th, Ida Smith 7 came around the finishing room with
application cards for the B. & S. W. U. When she came to Hill she
asked him whether he was in favor of the U. S. W. or the B. & S.
W. U. Hill replied that he belonged "to the only organization in
the world". Hill meant, and she understood him to refer to, the
U. S. W. Ida Smith passed on to the next employees and found
that the next two also belonged to the U. S. W. She made some
remark Hill resented; so he shouted, "It's Town Hall tonight, boys,
with the C. I. 0., and let's all go". Ida Smith came back to him
then and called him by name and swore at him. Hill answered in
kind. Morris Levine, superintendent and foreman, came up. Ida
Smith went off with him. They stood about 30 feet away and talked
for some time.
That evening Hill addressed a mass meeting ofthe U. S. W. On
the way home he was involved in an automobile accident which
necessitated his absence from work- the next day.8 Homer Jellison,
one of respondent's employees who had been with Hill in the acci-
dent, informed the superintendent and Hill's foreman that Hill could
not come to work that day because of the accident. When Jellison
was going home that night, Levine, the superintendent in that divi-
sion, called him aside and asked him if he still favored the U. S. W.
Upon Jellison's stating that he did, Levine said, "Your friend, Mr.
Hill, was discharged . . . today for talking C. I. 0."
When Hill reported to work on June 17th he found another man
on his jack and his foreman told him that he had been ordered to
hire people to fill all jacks the day before. Hill tried to talk to
Levine, but Levine would not see him. The foreman could not get
any information from Levine, except that Hill was through at the
plant. Hill's work had always been satisfactory.
6 The operator of a treeing jack puts the shoes on the jack, cleans them, prepares them
for the repairers and for the packers.
' See footnote No 4
Hill had to appear in court on June 16th
DECISIONS AND ORDERS 385
Considering these facts in the light of the respondent 's attitude
toward the U. S. W., as discussed in Section III, A , above, it is
apparent that the respondent seized upon Hill's temporary absence
as an excuse for replacing him.
We find that the respondent discharged James B. Hill on June 17,
1937 and discriminated against him with respect to hire and tenure
of employment under the circumstances set forth above, thereby
discouraging membership in the U. S. W.
Mary Coffin. Mary Coffin had been employed by the respondent
as a floor girl,, for three years. On June 1, 1937, she joined the
U. S. W. and on June 3rd refused to sign a B. & S. W. U. card.
On Friday , June 4th, she attended a U. S. W . meeting. On June 7th,
the following Monday, while she was singing at her work , Morris
Levine asked her if she sang at the U. S. W. meeting , and told her to
"stop singing and get to work."
On June 11th Coffin attended another U . S. W. meeting, and on
the following Monday, June 14th , Hyman Mersky and Louis Mersky
in turn questioned her as to what occurred at that meeting. She
refused to tell them anything about it. Later the same day Maurice
Mersky also questioned her about the meeting and asked her why she
wanted the U. S. W., and what she would do if they had a closed
• shop and she had to join the B. & S. W. U. Coffin said that she wanted
the U. S. W. because it was a better union for the employees than
the B . & S. W. U. and that if the factory . were a B. & S. W. U. closed
shop, there would be more people outside than inside. Maurice
stated that it would be a closed shop before long.
On June 14th Coffin talked to her old foreman, Pete,10 in the compo
shop, and he told her he would be wanting her to return soon because
a great deal of work was coming in.
On June 25th , when Maurice Mersky told Coffin there was no more
work for her , she tried to find Pete in the compo shop but he had
gone home. Coffin went to the C. I. O. office next and was told to
report to work on Monday, June 28th , and to come back to them if
she was not put to work there.
On June 28th , Coffin reported at the factory and could not find her
time card. She went to see Pete, who told her he had work but that
he had orders not to put her on. Coffin then went to see Maurice
Mersky , who told her his nephew was taking her place. Mersky
would not talk about work in the compo shop. Coffin then returned
o Floor girl seems to designate a sort of jack -of-all-trades who is used at unskilled
work wherever needed in the factory and is shifted around from department to depart-
ment
11 Last name not in the record.
386 NATIONAL LABOR RELATIONS BOARD ,
to the U. S. W. office and the events described in Section III, A,
occurred.
On the basis of the above facts it is apparent that Mary Coffin was
discharged because of her membership and activities in the U. S. W.
We find that the respondent discharged Mary Coffin on June 25,
1937 and discriminated against her with respect to hire and tenure
of employment under the circumstances set forth above, thereby
discouraging membership in the U. S. W.
C. The closed shop contract with the B. cfi S. W. U.
Under the circumstances discussed under III, A, above , the re-
spondent entered into a closed shop contract with the B, & S, W. U.
on June 9, 1937.
Section 8 (3) of the Act provides:
. . . Nothing in this Act . . . shall preclude an employer
from making an agreement with a labor organization (not
established , maintained , or assisted by any action defined in this
Act as an unfair labor practice ) to require as,a condition of
employment membership therein, if such labor organization is
the representative of the employees as provided in Section 9 (a)
in the appropriate collective bargaining unit covered by such-
agreement when made.
Under this provision and in view of our findings under III, A,
above, the contract here in question is clearly invalid. The B. &
S. W. U. was not , on the date on which the contract was signed, the
free choice of a majority of the respondent 's employees and was a
labor organization which had been assisted by unfair labor practices.
The B. & S. W. U. therefore is within the proviso to Section 8 (3)
of the Act quoted above , and the June 9, 1937 contract between it and
the respondent is void and of no effect . Of course , this does not
mean that the B. & S. W. U. may not hereafter negotiate a new
contract with the respondent should it subsequently be certified by
the Board as the exclusive representative of the respondent's
employees. 0
Since the contract is void and of no effect , it cannot operate
as a defense to the discharges of Hill and Coffin.
IV. THE QUESTION CONCERNING REPRESENTATION
The U. S. W. started organizing in the respondent 's plant on or
about June 1, 1937. On June 4, 1937 , the U. S. W. held an organiza-
tion meeting in the Town Hall at Freeport, and applications were
taken for membership . The presiding officers at that meeting claim
that 297 signed application cards were turned over to them that
DECISIONS AND ORDERS 387
night and that their total membership in the respondent's plant at
that time was 331. Membership increased from that time on, until
on June 24, 1937, when the U. S. W. application cards were counted
under the supervision of the Regional Director for the First Region,,
there were 519. Of these 249 were undated. On the basis of this
membership the U. S. W. asks recognition as the exclusive representa-
tive of all of the respondent's employees.
The B. & S. W. U. introduced no evidence of its membership on-
different dates, but on June 24, 1937, when the B. & S. W. U. applica-
tion cards were counted under the supervision of the Regional Direc-
tor, there were 384 B. & S. W. U. signed cards. The B. & S. W. U.
claimed to have more cards which were not then available. On June
8, 1937, the B. & S. W. U. wrote to the respondent claiming to repre-
sent more than 65 per cent of its employees and the respondent
recognized the B. & S. W. U. as the exclusive representative of all of
its employees. Such membership was, as we have found in Section
III, A, above, influenced by the respondent's unfair labor practices.
The respondent stipulated that on June 4, 1937, it had 656 em-
ployees, and that on June 25, 1937, it had 800 employees. We find
that a question has arisen concerning the representation of employees
of the respondent.
\'. THE APPROPRIATE UNIT FOR COLLECTIVE BARGAINING
The petition for investigation and certification of representatives
alleged that all of the production employees of the respondent con-
stitute an appropriate unit for collective bargaining . The respond-
ent operates three factories , two of which are physically connected
and all of which are enclosed within one fence surrounding the entire
property . Although separate production records are kept for each
factory, all are operated through one office 'as a unit and the cor-
respondence, ledger accounts , and purchasing are handled through
that office as if the whole were one factory . Employees are often
transferred from one department to another and from one factory
to another.
Both the U. S. W. and the B. & S. W. U . admit to membership
all of the production employees of the respondent . Neither the
B. & S. W. U. nor the respondent object to the designation of the
production employees as the appropriate unit for collective
bargaining.
In order to insure to the employees of the respondent the full bene-
fit of their right to self-organization and to collective bargaining, and
otherwise to effectuate the policies of the Act, we find that the pro-
duction employees of the respondent , exclusive of foremen and
supervisory employees , constitute a unit appropriate for the purposes
388 NATIONAL LABOR RELATIONS BOARD
of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
VI. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES AND OF THE QUESTION
CONCERNING REPRESENTATION ON COMMERCE
The activities of the respondent set forth in Section III, above,
and the question concerning representation which has arisen, occur-
ring in connection with the operations of the 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 commerce and the
free flow of commerce.
VII. THE REMEDY
The actions of the respondent described in Section III, A, above,
,culminated in a strike on June 29, 1937. That strike was called to
protest against the respondent's interference with, restraint, and coer-
cion of its employees in the exercise of their rights guaranteed in
Section 7 of the Act. The strike is still in progress and is a current
labor dispute within the meaning of Section 2 (9) of the iAct. A per-
son whose work has ceased in connection with a current labor dispute
remains an employee under Section 2 (3) of the Act, so long as he
does not obtain regular and substantially equivalent employment
elsewhere. Nothing in the record shows that any of the persons who
struck on June 29, 1937, has obtained regular and substantially equiva-
lent employment elsewhere since that time. Those persons, there-
fore, never lost their status as employees of the respondent. In order
to restore the situation existing before the unfair labor practices, and
since the strike was caused by unfair labor practices, we shall order
the respondent upon application to reinstate those employees who
struck on June 29, 1937, to their former positions, discharging, if
necessary, any employees hired since that time.
Since the contract discussed under III, C, above, was with an
organization which had been assisted by an unfair labor practice and
is therefore void and of no effect, we shall order the respondent not
to give it effect, and we shall also order the respondent not to recog-
nize the B. & S. W. U. as the exclusive representative of its employees
unless and until the B. & S. W. U. has been certified by the Board
as the exclusive representative of its employees.
VIII. THE DETERMINATION OF REPRESENTATIVES
For the reasons stated above we find that in order to determine the
question of representation which has arisen, an election is necessary.
- On June' 29, 1937, the U. S. W. called a strike at the respondent's
DECISIONS AND ORDERS 389
plant which was still in progress at the time of the hearing. Because
of the strike a substantial number of the respondent's employees are
not working. Those employees who are not now working because of
the strike are entitled to return to their jobs upon application and
are entitled to have a voice in choosing their bargaining agent. We,
therefore, direct that all employees in the appropriate unit on the
last pay roll of the respondent preceding June 29, 1937, shall be eli-
gible to vote in the election.
Russell Dorr, James B. Hill, and Mary Coffin, who have been found
to have been discriminatorily discharged and who will be ordered
reinstated, shall also be permitted to vote in the election.
We shall not at this time set the date for holding an election but
shall direct that the election be delayed until such time as the Board
is satisfied that there has been sufficient compliance With its order to
dissipate the effects of the unfair labor practices of the respondent
and to permit an election uninfluenced by the respondent's conduct.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the entire
record in both cases, the Board snakes the following conclusions of
law :
1. United Shoe Workers of America, affiliated with the Committee
for Industrial Organization, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. Boot and Shoe Workers' Union, affiliated with the American
Federation of Labor, is a labor organization Within the meaning of
Section 2 (5) of the Act.
3. Russell Dorr, James B. Hill, and Mary Coffin were employees
of the respondent, within the meaning of Section 2 (3) of the Act,
at the time of their respective discharges and at all times thereafter.
4. The respondent, by discriminating in regard to the hire and
tenure of employment of Russell Dorr, James B. Hill, and Mary
Coffin, and each of them, and thereby discouraging membership in
United Shoe Workers of America, has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of
the Act.
5. The strike of the employees of the respondent, beginning on
June 29, 1937, is a labor dispute within the meaning of Section
2 (9) of the Act.
6. The employees of the respondent who struck on June 29, 1937,
lost their employment as a consequence of the respondent's unfair
labor practices within the meaning of Section 2 (3) of the Act.
7. The employees of the respondent who struck on June 29, 1937
are employees of the ' respondent, within the meaning of Section
2 (3) of the Act.
390 NATIONAL LABOR RELATIONS BOARD
- 8. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the right to self-organization, to
form, join, and assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities, for the purpose of collective bargaining or other
mutual aid or protection has engaged and is engaging in unfair
labor practices within the meaning of Section 8 (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7)
of the Act.
10. A question affecting commerce has arisen concerning the rep-
resentation of employees of the respondent, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
11. All production employees of the respondent, excluding fore-
men and supervisory employees, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) 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 respond-
ent, Lenox Shoe Company, Inc., its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
a. Discouraging membership in United Shoe Workers of America
or any other labor organization of its employees, or encouraging
membership in Boot and Shoe Workers' Union of America or any
other labor organization of its employees, by discharging or refusing
o reinstate any of its employees or in any other manner discrimi-
nating in regard to their hire and tenure of employment or any term
or condition of their employment because of membership or activity
in connection with any such labor organization ;
b. Urging, persuading, warning, or coercing its employees to join
Boot and Shoe Workers' Union, or any other labor organization of
its employees, or threatening them with discharge if they fail to
join any such labor organization;
c. Permitting organizers for Boot and Shoe' Workers' Union or any
other labor organization to engage in activities among its employees
in behalf of such labor organization during working hours or on
the respondent's property, unless similar privileges are granted to
United Shoe Workers of America and all other' labor organizations of
its employees;
d. Giving effect to its June 9, 1937 contract with Boot and Shoe
Workers' Union, providing however that nothing in this order shall
preclude the employer from hereafter making an agreement 'with
DECISIONS AND ORDERS 391
Boot and Shoe Workers' Union or any labor organization (not estab-
lished, maintained, or assisted by any action defined in the National
Labor Relations Act as an unfair labor practice) requiring, as a:
condition of employment, membership therein, if such labor organi-
zation is the representative of the employees as provided in Section
9 (a) of said Act;
e. Recognizing Boot and Shoe Workers' Union as the exclusive
representative of its employees unless and until Boot and Shoe
Workers' Union is certified as such by the Board;
f. In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities, for the purposes of collective bargaining or other
mutual aid or protection.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
a. Offer to Russell Dorr, James B. Hill, and Mary Coffin immediate
and full reinstatement to their former positions without prejudice
to their seniority and other rights and privileges;
b. Make whole Russell Dorr, James B. Hill, and Mary Coffin, and
each of them, for any loss of pay they have suffered by reason of
their respective discharges, by payment to each of them of a sum
equal to the amount which each would normally have earned as wages
during the period from the date of their respective discharges to the
date of such offer of reinstatement, less any amount earned by each
during such period;
c. Upon application offer to those employees who were on the last
pay roll prior to June 29, 1937, and went on strike on June 29, 1937,
and who have not obtained regular and substantially equivalent em-
ployment elsewhere, immediate and full reinstatement to their former
positions, without prejudice to their seniority and other rights or
privileges, dismissing if necessary, all persons hired for the first time
since June 29, 1937 to perform the work of such employees; and place
those for whom employment is not available on a preferred list to be
offered employment as it arises on the basis of seniority by classifica-
tions before any other persons are hired;
d. Make whole all employees who were on the last pay roll prior
to June 29, 1937, and went on strike on June 29, 1937, for any losses
they may suffer by reason of any refusal of their application for
reinstatement in accordance with paragraph 2c herein, by payment
to each of them, respectively, a sum equal to that which each of them
would normally have earned as wages during the period from the
date of any such refusal of their application to the date of reinstate-
ment, less the amount, if any, -which each, respectively, earned during
such period;
67573-38-vol iv-26
.392 NATIONAL LABOR RELATIONS BOARD
e. Immediately post notices to all its employees in conspicuous
places in each of its three factories in Freeport, Maine, stating : (1)
That the respondent will cease and desist in the manner aforesaid; (2)
that the respondent's employees are free to join or assist any labor
organization for the purpose of collective bargaining with the re-
spondent; (3) that the respondent will bargain collectively with any
labor organization entitled thereto; (4) that the respondent will not
discharge, or in any manner discriminate against members of United
Shoe Workers of America or any other labor organization of their
,employees, or any person assisting such organizations , by reason of
such membership or assistance ; (5) that the respondent will not dis-
,charge, or in any manner discriminate against any employee for
refusal or failure to join or assist Boot and Shoe Workers' Union or
any other labor organization of their employees; (6) that such
notices will remain posted for a period of at least thirty ( 30) consec-
utive days from the date of posting;
f. Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act , 49 Stat. 449 , and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, it is hereby
DIRECTED that, as part of the investigation directed by the Board
to ascertain representatives for the purposes of collective bargain-
ing with Lenox Shoe Company, Inc., Freeport, Maine, an election
by secret ballot shall be conducted at such time as the Board shall
hereafter direct as stated in Section VIII of the above decision, under
the direction and supervision of the Regional Director for the First
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among the production employees of Lenox Shoe
Company, Inc., at its Freeport, Maine, plant whose names appear on
the pay roll of said Company next preceding June 29, 1936, ex-
clusive of foremen and supervisory employees and those who have
obtained regular and substantially equivalent employment elsewhere,
to determine whether they desire to be represented by United Shoe
Workers of America, affiliated with the Committee for Industrial
Organization, or by Boot and Shoe Workers' Union, affiliated with
the American Federation of Labor, for the purposes of collective
bargaining, or by neither.