Old Town Shoe Co.

National Labor Relations Board - Board Decisions

Sep 15, 1950

91 N.L.R.B. 240 (N.L.R.B. 1950)

In the Matter of OLD TOWN SHOE COMPANY and UNITED SHOE:
WORKERS OF AMERICA, CIO
In the Matter Of PENOBSCOT SHOE COMPANY and UNITED SHOE
WORKERS OF AMERICA, CIO
Cases Nos. 1-CA-409 and 1-CA-491.Decided September 15, 1950
DECISION AND ORDER
On March 31,1950, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents, the
General Counsel, and the Union filed exceptions to the Intermediate
Report and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the.Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as they are consistent with this
Decision and Order.2
1. We agree with the Trial Examiner that there was no refusal to
bargain on the part of the Respondents before the strike. We also
agree with the Trial Examiner that both Respondents had failed and
refused to bargain with the Union during and after the strike. The
Trial Examiner, however, found a refusal to bargain only on and after
1 The request for oral argument by the Respondents is hereby denied as the record and
the briefs, in our opinion , adequately present the issues and the positions of the parties.
2 The Respondents move to dismiss the complaints on the ground that the Board had no
jurisdiction to issue the complaints in this case because the charges pursuant to which
the complaints were issued , were filed by a labor organization affiliated with the Congress-
of Industrial Organizations which at that time was not in compliance with Section 9.(h)
of the amended Act. For the reasons stated in J. H. Rutter-Rex Manufacturing Company,
Inc., 90 NLRB 130, this motion is denied . See also (Pest Texas Utilities Co., Inc., 184
F. 2d 233 (C..A. D. C.):
91 NLRB No. 35.
240
OLD TOWN SHOE COMPANY 241
July'21, 194.9. We cannot agree with this conclusion, for the follow-
ing reasons :
As is fully detailed in the Intermediate Report, the Union and the
Respondents had been negotiating for a collective bargaining agree-
ment between March and June of 1949. On June 14, following an
impasse on the subject of union security, the employees of both Re-
spondents went out on strike. On the following day, the Respondents'
attorney was quoted in the Bangor Daily News as stating, "We won't
negotiate on the question of a union shop or anything else unless they
call off the strike." (Emphasis added.) On June 17, 1949, in. "An
Open Letter to Our Employees and Citizens of Old Town," signed by
the Respondents, and inserted in the pay envelopes of some of the
employees, the Respondents stated, "We are definitely committed not
to meet with the CIO until this unlawful strike is called off by the
organizers in recognition of their grave error. Only then will we
resume negotiations." (Emphasis added.) On the same day, the
Penobscot Times quoted a statement by one of the Respondents'
owners, made during an interview on June 15, that the Respondents
would not negotiate until the strikers had returned to work. State-
ments similar to the ones described appeared thereafter in local news-
papers, either in the form of interviews or as a paid advertisement.
The Respondents contend that despite these statements, there can be
no refusal to bargain in violation of Section 8 (a) (5) of the Act in
the absence of a prior request by the Union for the resumption of
negotiations after the commencement of the strike. It is conceded
that no such request was made during the first several. weeks of the
strike. Although it is true that normally a prior request to bargain
is a condition precedent to a finding of refusal to bargain,' it seems
clear that in the face of the Respondents' publicly stated policy not
to bargain on anything during the strike, any request by the Union
would have been a useless gesture. Present in this case, therefore, are
specific circumstances which take it out of the general rule.4
That the announced policy of the Respondents not to bargain during
the strike was not a mere outburst or expression of pique provoked by
the calling of the strike and thought better of soon thereafter,5 is made
manifest by the continued repetition of these statements throughout
the course of the strike and the Respondents' entire conduct both dur-
ing and after the strike. Indeed, not only were the statements in
question made, but, as the Trial Examiner found, the Respondents
3 N. L. R. B. v. Columbian Enameling and Stamping Company, 306 U. S. 292.
4 See Norfolk Southern Bus Corporation , 66 NLRB 1165 , 1176; The Burke Machine Toot
Company, 36 NLRB 1329 , 1341-1342.
e Cf. The Fafnir Bearing Company, 73 NLRB 1008 , 1011-10,12.
.242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
showed no disposition to meet with the Union even when the latter
through intermediaries, at a subsequent stage of the strike, explicitly
requested such meeting, and reduced its demands in order to make
further negotiations more feasible; 6 the Respondents solicited indi-
vidual strikers to return to work in derogation of the collective bar-
gaining representative; and they sought to avoid any meeting with
the Union after the strike, resorting to dilatory tactics to that end.
Under the circumstances thus described, we find that the Respond-
ents by their statements and conduct commencing with the inception
of the strike, made it unequivocably clear to the Union that they did
not intend to bargain with it; that in the light thereof a specific request
by the Union to resume negotiations would have been futile; 7 and that
the Respondents, by such statements and conduct, had failed and re-
fused to bargain with the Union in violation of Section 8 (a) (5) of
the Act.$ Specifically, we find that the Respondents' refusal to bargain
dates from June 17, 1949, as it was on that date that the policy of the
Respondents not to bargain was clearly and forcibly brought to the
attention of the Union by the insertion of the "Open Letter" in the
pay envelopes of some of the striking employees who, although on
strike, returned to the plant to pick up their pay for the period pre-
ceding the strike.
U Like the Trial Examiner, we find that the Union, toward the end of July 1949, author-
ized the Citizens ' Committee to submit concrete proposals to the Respondents , including
a concession on union security in the form of a maintenance -of-membership clause, that
these proposals were communicated to the Respondents, and that the Respondents never-
theless remained adamant in their position that the strikers return to work before they
(the Respondents ) would resume negotiations with the Union . However, we do not agree
with the Trial Examiner that Dufour 's intercession on or about July . 21, 1949 , constituted
a request for the resumption of bargaining on the part of the Union , as it is not clear from
his testimony that he was authorized to speak for the Union or that he had any authority
other than a suggestion from one of the strikers to "do something." Nor do we agree
with the Trial Examiner that during the chance meeting between Pilot and Fecteau,
Fecteau ' s remarks could be interpreted as "tantamount to a request."
'We have reached a similar result in connection with the question of whether strikers
are required to make an unconditional request for reinstatement where the employer by
his statements and conduct has made such request futile . See The Ellis Canning Company,
76 NLRB 99 ; David Hamm Drayage Company, 84 NLRB 475.
9 As their reason for refusing to meet and negotiate with the Union during the strike,
the Respondents contended that the strike was for union security ; that a strike for union
security was illegal under Maine common law, and that as the union-security clause pro-
posed by the Union contained no proviso making it inoperative until after a certification
following a union -authorization election under Section 9 (e) of the amended Act, the
strike was unlawful as a strike to compel the Respondents to accede to an illegal union-
security clause. As the Trial Examiner found , however , the Union did not insist, as a
condition precedent , that the agreement omit any proviso for a Section 9 (e) election, and
negotiations were not stalemated over the issue of whether the contract would include
such a clause , for the Respondents never agreed to a union -security clause, with or without
the suspension provision . The Trial Examiner also found that the strike was not in
violation of Maine . common law . However , it should be noted that as the Respondents'
position is that they were under no obligation to bargain on any issues during the strike,
this case does not present the question of whether an employer may refuse to bargain with
respect to union security until there has been a union-authorization election. See General
Armature & Manufacturing Co., 89 NLRB 654.
OLD TOWN SHOE COMPANY 243
In addition to finding a violation of Section 8 (a) (5), we find, as
did the Trial Examiner, that these statements made on and after the
commencement of the strike, expressing a fixed determination not to
bargain, were reasonably calculated to influence the employees to aban-
don their concerted activity and to undermine the Union, thereby inde-
pendently constituting interference, restraint, and coercion in the
exercise of the rights of employees guaranteed in Section 7, in violation
of Section 8 (a) (1) of the Act.
2. Having found a refusal to bargain by the Respondents in viola-
tion of Section 8 (a) (5) of the Act dating from June 17, 1949, and also
independent violations by them of Section 8 (a) (1) of the Act, based
on the same statements and conduct, we find that the strike, which
originated as an economic strike was on that date converted to an
unfair labor practice strike. In this connection the Board has held
that the duty to bargain is not suspended during a lawful strike ; s
indeed, the fulfillment of the obligation to bargain becomes doubly im-
portant during a strike. Under the circumstances, the Respondents'
fixed policy not to bargain would tend to discourage any attempts by
the Union to seek a peaceful resolution of the differences that caused
the strike. As the Trial Examiner states, although it is not certain
that a meeting would have resulted in such resolution, it is certain
that no resolution of differences could result while one of the parties
deliberately remained unavailable for discussion. For that reason, we
find that the Respondents' unfair labor practices tended to prolong
the strike, thus converting it to an unfair labor practice strike.
It follows, therefore, that on June 17, 1949, the date on which the
strike became an unfair labor practice strike, the Respondents foc-
feited the right permanently to replace the strikers.10 As a number of
strikers who applied unconditionally for reinstatement at the termina-
tion of the strike were not reinstated, we find, as did the Trial Exam-
iner, that the Respondents thereby discriminated as to the strikers'
hire and tenure of employment in violation of Section 8 (a) (3) of
the Act.1'
9 N. L. R. B. v. Highland Shoe, Inc., 119 F. 2d 218, 222 ; Cathey Lumber Company, 86
NLRB 157; The American Laundry Machine Co., 76 NLRB 981.
10 Vogue-Wright Studios, Inc., 76 NLRB 773, 776.
11 At a meeting held on August 12, 1949, under the auspices of the State Board of Arbitra-
tion and Conciliation , the State Board proposed to the Union, after being authorized to
do so by the Respondents , that if the Union would call off the strike immediately, the
Respondents would agree to reinstate all except three named strikers as soon as jobs
became available. The Union acquiesced, and on August 15, 1949, called off the strike.
The Respondents rely on this so-called strike settlement agreement as justification for
reinstating a number of strikers on that basis . The Trial Examiner found that, as the
strike became an unfair labor practice strike, this course was not justified . We agree.
The Board has held that . a union cannot waive the strikers ' reinstatement rights. See
Kansas Milling Company, 86 NLRB 925; N. L. R. B. v. Poultrymen 's Service Corp., 138
F. 2d 204 ( C. A. 3) enforcing 44 NLRB 444.
917572-51-v 1.91-17
244: DECISIONS OF. NATIONAL - LABOR RELATIONS BOARD
3.:;Like:the Trial Examiner, and for 'the reasons stated ;by him,. we
find that: the, discharge of Joseph A. Robichaud by Respondent Old;
Towns was, discriminatory in violation of Section 8 (a) (3) of the,Act,
and the.layoff of Andrew Poirier more than 2 months before the.'strike
was not discriminatory, and Respondent Old.Town was therefore not
obliged to reinstate him'at,the conclusion of the strike.
4. We,disagree' with, and reverse, the Trial Examiner's finding that
Laurence Daigle was entitled to reinstatement. Daigle was convicted
of breaking windows in' the house of a nonstriker during the strike and
sentenced to serve, 6 months in jail. He applied for reinstatement at,
the end:.of the strike and was turned down because of, his conduct. In
our,opinion,''the evidence does not support the Trial Examiner's con-
clusion ;that; Daigle's strike conduct was merely a pretext, disguising
an antiunion motivation in the, refusal to reinstate him. Moreover,
even if.the,Trial Examiner is correct, in this conclusion, and assuming
that•Daigle's discharge was discriminatory,12 we nevertheless find that
Daigle's conduct rendered him ineligible for reinstatement 13
The Trial Examiner found that Maurice Duplissis was properly.
denied reinstatement. As no exception was filed with respect to this
finding, we shall adopt it.
5. We, agree with the Trial Examiner's findings of independent vio-,
lations of Section 8(a) (1) of the Act in the interrogation of Robi-
chaud and in the solicitation of individual employees to return to work
during the strike. However, we do not agree with the reasons given by
the Trial Examiner, insofar as he relies on the Mylan-Sparta case,''
in'his:refusal to find a violation of Section 8 (a) (1) as to the state-
ments made by Greenleaf to Robichaud ; however, as no exceptions
were taken to the Trial Examiner's failure to find this conduct viola-
tive of the Act, we shall make no finding with respect to this allegation.,
The Remedy
Having found that the Respondents discriminatorily denied rein-
statement to some of the strikers, we find it necessary to order their
reinstatement with back pay.. We shall order the Respondents to
offer to the employees listed in Appendixes C and D reinstatement to
their former or substantially equivalent positions, without prejudice
to their. seniority or other rights and privileges, dismissing, if neces-
sary any employees hired since June 17, 1949, to replace them. If,
after such dismissal, there are insufficient positions remaining for all
12 See Atlantic Stages, 78 NLRB 553.
S3 E. A. Laboratories , Inc., 86 NLRB 711 ; Porto Rico Container Corporation, 89 NLRB
570...• . .
11 Mylan-Sparta Company, Inc., 78 NLRB 1144. -
OLD TOWN SHOE COMPANY 245
these employees, the available positions shall be distributed among
them, without discrimination because of their- union membership,
activity, or participation in the strike, following such system of
seniority or other nondiscriminatory practice as heretofore has been
applied in the conduct of the Respondents' business. Those strikers
for whom no employment is immediately available after such dis-
tribution shall be placed upon a preferential hiring list with priority
determined among them by such system of seniority or other non-
discriminatory practice as heretofore has been applied in the conduct
of the Respondents' business and thereafter, in accordance with such
list, shall be offered reinstatement as positions become available, and
before other persons are hired for such work. We shall also order the
Respondents to reimburse these employees, in the manner herein-
after described, for any loss of pay they may have suffered as a result
of the Respondents' discrimination from the date of their application
for reinstatement to the date of the respective Respondents' offer of
reinstatement.
Having also found that the Respondents, since the date of the ter-
mination of the strike (August 16, 1949), either offered reinstatement
or actually reemployed a number of others among the strikers, we
shall, as recommended by the Trial Examiner, order the Respondents
to make whole the employees listed in Appendix B, in the manner
hereinafter described, for their losses in pay, if any, in earnings be-
tween the date of their request for reinstatement and the offer of
the respective Respondent to reinstate them.
Since the issuance of the Trial Examiner's Intermediate Report,
the Board has adopted a method of computing back pay different
from that prescribed by the Trial Examiner.15 Consistent with the
new policy, we shall order that the loss of pay be computed on the
basis of each separate calendar quarter or portion thereof during the
period from the Respondents' discriminatory actions to the date of
a proper offer of reinstatement. The quarterly periods hereinafter
called "quarters," shall begin with the first day of January, April,
July, and October. Loss of pay shall be determined by deducting
from a sum equal to that which the employee would normally have
earned for each quarter or portion thereof, his net earnings,1e if any,
in other employment during that period. Earnings in one particular
quarter shall have no effect upon the back-pay liability for any other
quarter.17
15 F. W. Woolworth Company, 90 NLRB 289.
^u Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
"This method of computing back pay shall also be applied in connection with the back
pay due to employee Joseph A. Robichaud.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall also order the Respondents to make available to the Board
upon request payroll and other records to facilitate the checking of
the amount of back pay due.l8
ORDER
Upon the entire record in this case, and pursuant to Secttion 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Old Town Shoe
Company and Penobscot Shoe Company, Old Town, Maine, their
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Shoe. Workers
of America, CIO, as the exclusive representative of all the employees
in the following appropriate units : All production and maintenance
employees at the shoe factory of Respondent Old Town in Old Town,
Maine, including employees in the stitching department who work in
Bangor, Maine, but excluding clerical employees, and supervisors; all
production and maintenance employees of the Respondent Penobscot
in Old Town, Maine, but excluding executives, foremen, office and
clerical employees, guards, professional employees, and supervisors;
(b) Discouraging membership in United Shoe Workers of America,
CIO, or in any other labor organization of their employees, by dis-
charging, laying off, or refusing to reinstate any of their employees
or by discriminating in any other manner in regard to their hire or
tenure of employment, or any term or condition of employment;
(c) Interrogating their employees concerning their union activities
or in any other manner interfering with, restraining, or coercing their
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Shoe Workers of America,
CIO, or any other labor organization, 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, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Shoe Workers
of America, CIO, as the exclusive representative of their employees
18 F. W. Woolworth Company, supra.
OLD TOWN1 SHOE COMPANY 247
in the above-described appropriate units, and if an agreement is
reached, embody such understanding in a signed agreement;
(b) Respondent Old Town shall offer to Joseph A. Robichaud
immediate and full reinstatement to his former or substantially equiva-
lent position, without prejudice to his seniority or other rights and
privileges, and make him whole, in the manner set forth in the section
entitled "The Remedy," for any loss of pay he may have suffered
by reason of Respondent Old Town's discriminatory discharge on
January 4, 1949;
(c) Make whole each of the employees named in Appendix B
who have already been reinstated or offered reinstatement in the
manner described in the section entitled "The Remedy," above;
(d) Offer to their respective employees listed in Appendices C
and D, if they have not already been reinstated or offered reinstate-
ment, immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or
other rights and privileges, and make each of them whole in the
manner described in the section entitled "The Remedy," above;
(e) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due and the right
of reinstatement under the terms of this Order;
(f) Post at their plants in Old Town, Maine, and, if any of the
employees in the appropriate units are presently employed in Bangor,
Maine, then at their Bangor, Maine, plant also, copies of the notice
attached hereto marked Appendix A.1' Copies of said notice, to be
furnished by the Regional Director for the First Region (Boston,
Massachusetts), shall, after being duly signed by the Respondents'
respective representatives, be posted by the Respondents immediately
upon receipt thereof, and maintained by them for sixty (60) consecu-
tive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices are not altered,
defaced, or covered by any other material;
(g) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply therewith.
IT Is rURTHER ORDERED that the complaint against the respective
Respondents be dismissed insofar as they allege that the Respondents
19 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "Decision and Order" the words , "Decree of the
United States Court of Appeals Enforcing."
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminated in regard to the hire and tenure of employment of
Andrew Poirier, Maurice Duplissis, Dorothy Bushey, Alfreda Dou-
cette, Clara Dubay, Mary Madore, James Pelletier, Louis Philip La
Marre, Antoinette Lajoie, Louise La Belle, and Laurence Daigle.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE To ALL EMPLOYEES
.
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees
that :
WE WILL NOT in any manner interfere with, restrain, or co-
erce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist UNITED SHOE
WORKERS OF AMERICA, CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any and all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the National Labor Relations Act.
WE WILL OFFER Joseph Robichaud and the employees named
in Appendices C and D immediate and full reinstatement to their
former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously en-
joyed, and make them, and the employees in Appendix B, whole
for any loss of pay suffered as a result of the discrimination.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining units described herein with respect to rates of
pay, hours of employment or other conditions of employment, and
if an understanding is reached, embody such understanding in a
signed agreement. The bargaining units are :
All production and maintenance employees of the Old
Town Shoe Company's factory in Old Town, Maine, includ-
ing employees, if any, in stitching department who work in
Bangor, Maine, but excluding clerical employees and
supervisors.
OLD TOWN1 SHOE ' COMPANY .249
All production and maintenance employees of the Penobscot
Shoe Company, Old Town, Maine, but excluding executives,
foremen, office and clerical employees, guards, professional
employees, and supervisors.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named union or any other
labor organization, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
National Labor Relations Act. We will not discriminate in regard
to hire or tenure of employment or any terms or conditions of em-
ployment against any employee because of membership in or activity
on behalf of any such labor organization.
OLD TOWN SHOE COMPANY,
PENOBSCOT SHOE COMPANY,
Employer.
Dated------------------- By--------------------------------
(Representative ) (Title)
NoTE.-Any of the above-named employees presently serving in the
Armed Forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
Employees already reinstated or offered reinstatement who are en-
titled to be made whole for any loss of pay from dates of their respec-
tive offers to return to work to the date they were reinstated or offered
reinstatement :
Old Town Employees
Doris Borgen
Minerva Burr
Beatrice Cote
Mildred Doucette
Francis Dubay
Louis Dubay
Juliette Dupuis
Romeo Dupuis
Rita Gallant
Dorothy Hersom
Charles Hotham
Cecile Lancaster
Edward Landry, Jr.
Gloria M. LeBreton
Edward LeVasseur
Napoleon LeVasseur
Ralph McPheters
Arthur Mercier
Benoit Mischaud (Michaud)
Melvin Neptune
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Old Town Employees-Continued
Francis Poirier
Ruby Perkins
Antoinette Pollard
Ralph Smart
David Sopiel
Peter Taylor
Clarence Witherbee
(Weatherbee)
Linwood Buxton
Girard Cote
Clare Cates
Wallace Cote
Clarence Daigle
Raymond Duplessis
Lorraine Duplessis
Francis Gilbert
Winfield Jordan
Ralph McDonald
Albert Michaud
Bessie O'Hara
Eva Ouelette
Charlotte White
Penobscot
Mildred Ashe
Helen Baker
Alice Bouchard
Frederick Brilliant
Theresa Brodeur
Doris Brouillette
Doris Comeau
Gladys Cyr
Selima Dunphy
Laura Dunn
Charles R. Dutton
Dot Doore
Beulah Eldridge
Beatrice Fadrigon
Joseph D. Girard
Evelyn Jarvis
Louis King
Albertina Lavoie
Evelyn Lavoie
Shirley LaVasseur
Helen Marquis
Thelma Martin
Modeste Michaud
Anita Myers
Albert Raymond
Marie Raymond
Francis Richard
Rose Robichaud
Employees
Muriel Madore
Roland (Ronald) J. Quellete
Florence Ouelette
Warren Rand
Adrien Roy
Stella Trembley
Jennie Pelkey
Leon Willey
Walter Wright
Madeline Roy
Madeline St. Louis
Rudolph St. Pierre(St. Peter)
Randolph Seymour
Helen Smart
Yvonne Smart
Patrick St. Louis
Rosaria Therrien
Frederick Treadwell
Robert Trembley
Margaret Waye
Bernice Willey
Madeline Rand
Clara Belanger
Ruth Belanger
Lucille Bradford
Theresa Costigan
Leona Cote
Pearline Cote
OLD TOWN SHOE COMPAN'Y' 251
Penobscot Employees-Continued
Cathleen Beaulieu
Eugena Hamall
Florence Hammel
Mildred Kitchen
Bernice Leavitt
Geraldine Landry
Sylvia Lagoss
Vina Lounsbery
Margaret Messier
Frank Miles
Beatrice Salisbury
Rudolph St. Peter
Mildred Sirois
Alice Smart
Odella St. Louis
Florence Sullivan
Denise Pelkey
Estelle Young
APPENDIX C
Old Town employees to be offered
whole for any loss of pay :
Dora Gilbert
Buddy Gould
Margaret Haggarty
Lee Hoxie
Roland LaPlant
Earl McIntosh
reinstatement and to be made
Carlton Schofield
Urban Dupuis
Marvette Davis
Georgiana LaPlant
Julia Pinkham
APPENDIX D
Penobscot employees to be offered
whole for any loss of pay :
William Guy Arbing
Carlton Agrell
John Bonneau
Evelyn Chase-
George Cormier
Loretta Cote
Lillian Cox
Evalyn Desgerdin
Beatrice Dubay
Ernest Dubay
Francis Duplissis
Edith Engstrom
Richard Griffith
Shirley Jipson
Gertrude L. Johnston
Cecile Lagasse
reinstatement and to be made
Maurice Lavallee
Kenneth Mitchell
Clara E. McGowan
Earl Martin
John Dionne
Raymond J. Martin
Arnold McKenzie
Maurice Morin
Edmund Parent
Amelia Parent
Denise Pelletier
Nelson Pelletier
Robert Pelletier
Deaulah Robichaud
Cecile Ruest
Richard St. Louis
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX D-Continued
Ralph Shirland Velma Treadwell
Walter Seymour Eleanor Wickett
Kenneth Taylor Erma Dubay
Louise Theriault Vera Michaud
INTERMEDIATE REPORT
Sidney A. Coven, for the General Counsel.
Maurice Epstein, of Gordon and Epstein, of Boston, Mass., and Michael Pilot
of Bangor, Maine, for the Respondents.
Frederick Cohen, of Boston, Mass., for the Union.
STATEMENT OF THE CASE
Upon a first amended charge in Case No. 1-CA-409 and upon a second amended
charge in Case No. 1-CA-492, both filed on September 14, 1949, by United Shoe
Workers of America, CIO, herein called the Union, the General Counsel for the
National Labor Relations Board, herein respectively called General Counsel
and the Board, issued complaints both dated September 16, 1949, against Old
Town Shoe Company and Penobscot Shoe Company; herein called the Respond-
ents when referred to together and called Old Town and Penobscot when
referred to individually, alleging that the Respondents had engaged in, and were
engaging in, unfair labor practices within the meaning of Section 8 (a) (1),
(3), and (5) and Section 2 (6) and (7) of the National Labor Relations'Act as
amended, 61 Stat. 136, herein called the Act. Copies of the original and amended
charges in both cases, as well as the second amended charge in Case No.
1-CA-492, and copies of the complaints were served upon the respective
Respondents.
With respect to the unfair labor practices the complaint in the Old Town case
alleges in substance that on December 28, 1948, Old Town discharged Joseph A.
Robichaud because he joined and assisted the Union and engaged in other
concerted activities for the purposes of collective bargaining and other mutual
aid and protection and thereafter refused to reinstate him; that although
the Union was certified by the Regional Director as the- exclusive bargaining
representative of all the employees in an appropriate unit, and although the
Union requested Old Town on about May 17, 1949, and at various times there-
after to bargain collectively with it, the Old Town refused and failed to do so;
that on about June 14, 1949, substantially all the employees of Old Town in
the bargaining unit went on strike because of Old Town's refusal to bargain,
that the strike continued until August 16, 1949, because of Old Town's continued
refusal to bargain, that on about August 16, 1949, employees listed in an appendix
to the complaint made unconditional application to Old Town for reinstatement
to their former or substantially equivalent employment, but that Old Town
refused to reinstate them because they had participated in the strike and/or
because of their membership in and activities in behalf of the Union, and/or
because each of them engaged in concerted activities for their mutual aid
and protection ; and that at numerous times beginning on or about October 12,
1948, and continuing thereafter, to the date of the issuance of the complaint,
Old Town interfered with, restrained, and coerced its employees in the exercise
OLD TOWN SHOE COMPANY 253
of the rights guaranteed in Section 7 of the Act by various acts, including
questioning employees regarding their union activities and threatening employees
with loss of employment if the Union was successful in its organizational
efforts.
The complaint in the Penobscot case alleges in substance that on December
29, 1948, the Union was certified by the Board as the exclusive bargaining agent
for all Penobscot's employees in an appropriate unit, that on or about June 21,
1949, although previously requested to do so by the Union, Penobscot refused
and failed to bargain collectively in good faith with the Union ; that on June 14,
1949, substantially all Penobscot's employees in the bargaining unit went on
strike until August 16, 1949, and that Penobscot's refusal to bargain, as
alleged, prolonged the strike. This complaint likewise lists a number of em-
ployees who made and allegedly were denied reinstatement at the end of the
strike on about August 16, 1949.
The answer of Old Town, filed September 30, 1949, denies the allegation of
unfair labor practices and affirmatively alleges in substance that it did, after
May 17, 1949, to wit, on June 1 and 10, 1949, negotiate with the Union ; that
the Union itself failed to bargain and broke off negotiations, and that from
June 14, the date of the commencement of the strike to the date of the answer
the Union at no time requested Old Town to bargain ; that before the strike
was officially called off by the Union on about August 15, 1949, it was agreed
between Old Town and the Union that any employee hired by Old Town
during the strike would not be discharged and that all applications by striking
employees would be acted upon by the Respondent as work was available, with-
out consideration of seniority or former type of employment.
The answer of Penobscot also filed on September 30, 1949, likewise in sub-
stance denies the commission of unfair labor practices and affirmatively pleads
the same matters as those contained in the Old Town answer.
On September 16, 1949, the Regional Director for the First Region of the
Board issued an order consolidating these two cases and giving notice of hearing
on the consolidated cases. Such order and notice were duly served on the
Respondents and on the Union. Pursuant thereto a hearing was held in Bangor,
Maine, from October 5 to 25 (both inclusive), 1949, before the undersigned
Trial Examiner, duly designated by the Chief Trial Examiner. The General
Counsel, the Respondents, and the Union were represented by counsel. Counsel
for the Union was not present throughout the hearing. All parties participated
in the hearing and were afforded full apportunity to be heard, to examine -and
cross-examine witnesses, and to introduce evidence bearing on the issues.
At the opening of the hearing the Respondents' counsel moved for a con-
tinuance on the grounds (1) that one of the Respondents' two attorneys came
into the case so recently that he was not familiar with the case and (2) that
Max Kagan, the Respondents' principal officer, was unable to be present because
of illness. The motion was denied, without prejudice, however, to the Re-
spondents' right to make motions for recesses during the General Counsel's case
when consultation with Kagan might be necessary and, if the General Counsel
finished his case that day, the right to make a motion for continuance. After
the formal papers were marked for identification, Respondents' counsel moved
to dismiss the complaints for lack of proof of service. As the only documents
for which there was not formal proof of service were the complaints and as
answers had previously been filed to each complaint, showing that there must
II
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been receipt of such complaints, the motion was denied. Respondents'
counsel then moved to dismiss the charges and complaints on the ground that
they contained general allegations without particulars or facts. The motion was
denied. Respondents' counsel then submitted a written motion designated a
motion for continuance and for bill of particulars. The motion for continuance
was denied. The motion for a bill of particulars was granted in part and
denied in part. Following the latter motion, General Counsel's counsel, here-
inafter called G. C. counsel, moved to amend the complaint in the Penobscot case,
based on a third amended charge filed on September 23, 1949, and duly served on
Penobscot on September 26, 1949, by adding an allegation in substance that
Penobscot on or about March 30, 1949, discharged Andrew J. Poirier and there-
after refused to reinstate him because he joined or assisted the Union and
engaged in concerted activities for the purpose of collective bargaining or
other mutual aid and protection. The motion was granted. On the second
day of the hearing Respondents' counsel moved for a continuance "insofar
as the trial of the issue as to what caused the strike is involved" on the grounds
that on that day the Respondents had filed charges against the Union which
might result in a further consolidation of cases. The motion was denied. On
the third day of the hearing, upon a fourth amended charge in the Penobscot
case and upon a second amended charge in the Old Town case, both filed on
October 6, 1949, G. C. counsel moved to amend the complaints by adding addi-
tional names to the list of names of those allegedly denied reinstatement dis-
criminatorily after the end of the strike. The motion was granted. On October
13, 1949, the Respondents moved to amend their respective answers by adding
allegations in defense of the charge of refusal to bargain, in substance, (1)
that in contract negotiations the Union consistently demanded inclusion of a
union-security clause in the contract although it had never complied with the
procedure set forth in Section 8, (a) (3) of the Act; (2) that the Union con-
ducted a strike to enforce the foregoing demand from about June 14, 1949, to
August 15, 1949; (3) that the Union at all times referred to in the complaint
failed and refused to bargain collectively in good faith with the Respondents;
and (4) that in the course of the strike, through and by its members and agents,
the Union coerced or restrained employees of the Respondents by illegal
acts and unfair labor practices. The motion was granted as to the first three
allegations but was denied as to the fourth. During the course of the General
Counsel's case, G. C. counsel moved to correct errors in the complaint in the
spelling of names of certain employees on the list of those allegedly denied
reinstatement discriminatorily at the end of the strike. The motion was
granted. At the same time Respondents' counsel moved to dismiss the Penob-
scot complaint as to Ella Arbing, listed in the complaint as an employee dis-
criminatorily denied reinstatement at the end of the strike, on evidentiary
grounds. The motion was denied without prejudice to the right to make such a
motion at the conclusion of the General Counsel's case. On a later date dur-
ing the General Counsel's case, G. C. counsel moved to amend the Penobscot
complaint to change the date of the alleged refusal to bargain from June 21,
1949, to June 14, 1949, the first day of the strike. The motion was granted.
Near the close of the General Counsel's case, G. C. counsel moved to amend
the Penobscot complaint further by adding a paragraph alleging in substance
that between June 14 and August 15, 1949, Penobscot interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act by inducing or attempting to induce employees individually to re-
OLD TOWN SHOE COMPANY 255
turn to work during the strike. The motion was granted. At the close of the
General Counsel's case, counsel for the Respondents made motions to dismiss
the complaints as to certain named employees and as to all employees listed in
certain exhibits (employees allegedly denied reinstatement discriminatorily),
who were shown thereby to have returned to work on August 16, 17, 18, or 19,
1949. This motion was granted as to those shown to have returned to work on
August 16, 1949, and ruling was reserved as to the rest. Counsel for the Re-
spondents moved to dismiss the Penobscot complaint as to Andrew Poirier,
alleged to have been discriminatorily discharged, for failure of the proof. The
motion was denied without prejudice to the right to renew the motion at the
close of the hearing. Counsel for the Respondents then moved to dismiss both
complaints as to the alleged refusal to the Respondents to bargain on the ground
that the Union had refused to bargain in good faith. This motion was similarly
denied without prejudice to the right to renew it at the close of the hearing.
At the close of the hearing counsel for the Respondents moved to strike the
Penobscot complaint as to the refusal to bargain on the ground that there was
no proof of a request to bargain on June 21, 1949, or thereafter. Ruling thereon
was reserved as dependent upon findings of fact and conclusions of law and is
therefore disposed of in accordance with the findings and conclusions herein-
after made. G. C. counsel then moved to amend the pleadings to conform to
the proof as to all minor matters. Counsel for the Respondents asked to include
their pleadings in the motion of G. C. counsel and the motion was accordingly
granted.
The parties waived oral argument before the Trial Examiner, but General
Counsel and Respondent both stated their intentions to file briefs. Thereafter
briefs were duly received from both.
Upon the entire record and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Penobscot Shoe Company is a Maine corporation, having its principal
office and place of business at Old Town, Maine, where it is engaged in the
business of manufacturing men's and women's sport shoes. Its principal raw
materials are leather and shoe findings. It purchases annually raw materials
of a value in excess of $50,000, of which more than 50 percent is purchased from
outside the State of Maine. Its annual sales exceed the sum of $50,000 and
more than 50 percent thereof is shipped to points outside the State of Maine.
The Old Town Shoe Company is a Maine corporation, having its principal
office and place of business in Old Town, Maine, where it is engaged in the
manufacture of sport shoes. Its principal raw materials are leather and shoe
findings. Its annual purchases are in excess of $50,000, of which more than
50 percent is purchased from outside the State of Maine. Its annual sales
exceed the sum of $50,000, and more than 50 percent thereof is shipped to points
outside the State of Maine.
II. THE ORGANIZATION INVOLVED
United Shoe Workers of America, CIO, is a labor organization admitting to
membership employees of the Respondents.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate units
The complaints allege and the answers admit and the undersigned accordingly
finds that :
At Penobscot's plant, all production and maintenance employees of the Re-
spondent, but excluding executives, foremen, office and clerical employees, guards,
professional employees, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
At Old Town's plant, all production and maintenance employees at the factory
in Old Town, Maine, including employees in the stitching department who work
in Bangor, Maine, but excluding clerical employees and supervisors, constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
2. The Union's majority in the appropriate units
Following the filing of a petition for investigation and certification of rep-
representatives, Penobscot and the Union entered into a "Stipulation for Certifica-
tion upon Consent Election" and an election was conducted on December 17,
1948, in accordance with said stipulation, under the auspices of the Board,
in which a majority of the employees. in the Penobscot appropriate unit cast
ballots in favor of the Union. On December 29, 1948, the Board formally cer-
tified the Union as the exclusive representative of all employees in said appro-
priate unit. It is accordingly found that on December 17, 1948, and at all times
material thereafter the Union was the exclusive representative of all the em-
ployees in the appropriate unit first described above for the purposes of collec-
tive bargaining in accordance with Section 9 (a) of the Act.
Upon a petition duly filed, the Board on March 1, 1949, ordered an election
to be conducted among employees in the Old Town appropriate unit. Pursuant
thereto an election was conducted on March 31, 1949, among said employees
and a majority thereof cast ballots in favor of the Union. On April 8, 1949, the
Regional Director on behalf of the Board certified the Union as the exclusive
representative of all the employees in the appropriate unit second described
above for the purposes of collective bargaining in accordance with Section 9
(a) of the Act. It is accordingly found that on March 31, 1949, and at all
times material thereafter, the Union was the exclusive representative of all the
employees in the appropriate unit secondly described above for the purposes of
collective bargaining in accordance with Section 9 (a) of the Act.
3. The bargaining history before the strike
a. Operations and ownership of the Respondents
Old Town and Penobscot occupy one long building separated by a wall in
which there are connecting doors. Old Town is engaged in the manufacture of
hand-sewn loafers, a moccasin type shoe, while Penobscot makes loafers by
machine. They have several stockholders in common, the principal ones being
Max Kagan and Philip Lown. Kagan is general manager of both.
OLD TOWN SHOE COMPANY 257
b. Early attempts of the Union to bargain
The Union began its organizing of both plants in August 1948. On Septem-
ber 13 of that year the Union wrote to Penobscot and on September 22 to Old
Town claiming to represent the employees and requesting a meeting to establish
the Union as bargaining agent. After waiting a few days, during which time
no reply was received from either Respondent, the Union petitioned the Board
for an election' After a hearing in the Penobscot case and before an election,
Penobscot entered into a consent election agreement, but Old Town insisted
on a hearing. As previously stated, the Union won the Penobscot election
and was certified on December 29, 1948.
On January 11, 1949, the Union wrote to Penobscot requesting a bargaining
conference. Having received no reply, the Union filed a charge of refusal to.bar-
gain on January 27, 1949. Later after a couple of bargaining conferences, this
charge was withdrawn. Sometime in January or February 1949, George Fecteau,
the Union's territorial representative, while at an airport during. his travels,
was introduced to one Rubin, an official of Penobscot. Rubin suggested that, as
the Union was having difficulty in getting together with Kagan, Fecteau speak.
to Lown. Sometime in February 1949, Fecteau contacted Lown and had a meet-
ing with him in Lewiston, Maine, to lay the ground work for bargaining. con-
ferences. When Fecteau explained the difficulty the Union was having, Lown
said it was difficult to get his people together. Fecteau said that he could not
understand that, as Kagan, the manager of,the factory, was at the plant and
he could not understand why Kagan could not meet with the. Union: Lown
said that Kagan 'was an excitable individual and that if he were to sit down
io bargain with the Union the whole thing might blow up and that the Union
would be better off to wait until they could get the people together to negotiate.
c. The bargaining conferences
The first conference between the Union and Penobscot representatives took
place on March 17, 1949 . It was held in an office at the plant and was attended
by Lown and Pilot, Respondents ' attorney , for Penobscot , and by Fecteau,
Elphege Bergeron , an organizer for the Union , and a committee of three of the
employees of the Penobscot plant for the Union . The Union orally presented
its demands , including union shop and check -off of dues , a 15-cent wage
increase , elimination of inequities in wage rates , holidays with pay, vacations
with pay, hospitalization insurance , grievance procedure , and hours of employ-
ment. Fecteau stated that if the union shop was agreed to it would not be put
into effect until after a union -shop election . Most of these demands were briefly
discussed or commented on. Lown expressed opposition to the union -shop, check-
off, and wage increase demands. The meeting, which started at about 4: 30
p. in. broke up at 6: 30 D. in. with Lown 's request that Fecteau submit a pro-
posed contract . Fecteau promised to do so and thereafter did send copies of.
the Union 's proposed contract to Lown and Pilot.
The next bargaining conference was arranged to be held on April 5, 1949. In
the meantime , on March 31 , 1949, at an election at the Old Town plant, a majority
of the employees chose the Union as their bargaining representative . The April 5
1 The Union lacked the requisite number of cards when it first petitioned for an election
in the Old Town case (No[1-RC-706) on September 27, 1948, and it subsequently withdrew
its petition. The second petition (in Case No. 1-RC-792) was filed on November 15, 1948.
Hearing is that case was held on January 10, 1949.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting was attended by Lown , Kagan, and Pilot for the Respondent and by
Fecteau, Bergeron , and John Dionne, an employee member of the bargaining
committee, for the Union. Fecteau opened the meeting by saying that the Union
bad won the Old Town election and that, although the Union had not yet been
certified, he proposed that they negotiate jointly for Old Town and Penobscot as
the Union's demands would be approximately the same and as both companies
were commonly owned ; and he stressed the necessity of saving time. On the
reply to this proposal depends the General Counsel's claim that Old Town refused
to bargain with the Union. The witnesses disagreed as to what the reply was,
and, because of the importance of the finding, the testimony will be related in
some detail. According to Fecteau, his proposal was met with a flat refusal, but
be added that Pilot or Lown had said that "if we could get together on the
Penobscot and clean up a contract there, that perhaps we wouldn't have too much
difficulty in agreeing to a contract in the Old Town Shoe Company." Bergeron
testified that "the Company said no, they wouldn't talk contract for the Old Town
Shoe, they would talk about that at a different time." Pilot testified that after
Fecteau's proposal to discuss contracts for both Penobscot and Old Town at the
same time, Lown retorted, "I don't see how one thing has anything to do with the
other"; that he (Pilot) intervened and said, "Just a moment, Mr. Lown. Isn't it
fair to say that whatever contract is written for the Penobscot Shoe Company
will he written for Old Town Shoe Company,' especially in view of the fact that
you have always told me that the basic principles between the two Companies
have always been the same, in other words, they have always given one Company
the same thing they did the other Company" ; that Kagan commented, "That's
logical"; that Lown said, "Well, that's right" ; and that Pilot then turned to
Fecteau and said, "Isn't that all right?" and that Fecteau had answered, "Yes."
Lown testified that after Fecteau had made his preliminary statement and pro-
posal, he turned to Pilot and asked the significance of certification ; that Pilot
replied it was a mere formality, "but inasmuch as it is the same management and
inasmuch as your practice has always been to extend the same terms to both
companies, don't you think that whatever we negotiate, that it could apply to
both companies?" Lown testified that he replied, "Yes. While there may be
minor matters, differences due to the different types of shoes that we make, never-
theless the basic terms could apply to both." Kagan testified that after Fecteau
made his proposal, Lown commented, "They are not certified," that Pilot inter-
rupted to say "Now, Mr. Lown, you always have the policy of taking both factories
alike. I can't see why we shouldn't negotiate both factories together" ; that he
(Kagan) said, "It's logical" ; that Lown said, "All right" ; and that Fecteau
nodded his head.
From the testimony related and all the evidence aiding in its interpretation,
Z find that Old Town took the position that, on matters concerning which Kagan
and Lown had no reason for differentiating between the two plants, the terms
agreed upon for Penobscot would be assented to by negotiators for Old Town
when they got around to negotiating the Old Town contract, but that the other
terms, particularly wage rates,. would have to be worked out at the later time
rather than at the bargaining conferences being held for Penobscot. Fecteau
did not, however, at the April 5 meeting assert that he would consider Old Town's
2 On cross-examination Pilot quoted himself as saying , "wouldn 't it be fair to say that
whatever contract we write for Penobscot Shoe Company will be a similar contract on basic
principles for Old Town Shoe Company, excepting perhaps on wage scales and things of
that nature about which I know nothing and which you gentlemen can work out.".
OLD TOWN SHOE COMPANY 259
reply to be a refusal to bargain, and on April 11, when the Union filed its original
charge against Old Town, it did not include a charge of refusal to bargain. I
infer that the Union was at that time agreeable to the proposal made by Pilot
and Lown.
The balance of the'meeting of April 5 was devoted to a discussion of the clauses
of the proposed contract. Although no clear agreement was reached on major
subjects it developed that differences in some matters could be resolved, but
management negotiators strongly opposed the wage increase and the union-shop
demands. At about 6:30 p. in. after the meeting had been in session for about
2 hours, Lown terminated it. Fecteau objected to the shortness of the sessions.
Lown said that Pilot had time enough and that they would turn the matter over
to him and let Fecteau and Pilot arrange their meetings. Fecteau concurred.
Pursuant to arrangement, Pilot met Fecteau at the union headquarters in
Boston on about April 23, 1949. The three major issues, wages, union shop, and
checkoff, were discussed, but most of the time was devoted to the topic of union
security. Fecteau indicated that they should have no difficulty in adjusting
wages on a basis comparable to other shoe factories in the vicinity if they could
get together on union security. In the course of the discussion Pilot asked why
Fecteau had not included in the proposed contract a provision that the union-shop
clause would not become effective until after an election. Fecteau explained,
according to Pilot, that the Union did not like to include it in the contract because
employees, seeing that an election was a condition to the contract might turn the
Union down in an election but that the Union would give a separate letter stat-
ing that the clause would not be binding on the Respondent until it was authorized
by a union-shop election. Pilot asked what would happen if they could not get
together on a union shop, and according to Pilot, Fecteau answered that there
would be a strike. When it appeared that no agreement could be reached, Fec-
teau said he was going to call in it conciliator. Fecteau testified, and Pilot
denied, that Fecteau "tried to convince Mr. Pilot that it would be better to carry
on negotiations for both Old Town and Penobscot jointly ; and, there again, Mr.
Pilot told me that his client's Company could not agree to that at that time."
Such conflict in testimony of two witnesses who were testifying to the best
of their respective recollections can be explained only on the basis of a confusion
of recollection. I conclude that Fecteau was mistaken and that it was at a later
meeting that he raised the point.
Fecteau procured the appointment of a Federal conciliator, Commissioner Smith,
who in turn arranged for the next meeting to be held at the Penobscot Hotel in
Bangor, Maine, on May 17. Fecteau had requested him to arrange for a meet-
ing away from the plant, for a longer meeting, and for Old Town-Penobscot
joint bargaining. On that date, while waiting for Fecteau to arrive, Commis-
sioner Smith asked Pilot if they were bargaining for both companies and, ac-
cording to Pilot's credited testimony, he replied, "Certainly." At the meeting
Pilot alone represented management. Fecteau, Bergeron, and a committee of
Penobscot employees represented the Union.3 Fecteau testified that at this meet-
ing he again raised the question of bargaining for Old Town as well as Penobscot.
Pilot again denied this. Bergeron was not sure whether it was raised at this
meeting or the next, and Andrew Poirier of the union committee, although con-
firming Fecteau, was obviously confused, as he quoted Lown and Kagan who
3 This committee consisted of John Dionne , Fern Willey , and Andrew Poirier, the latter
having, after his layoff on April 8, been elected temporary president of the Penobscot
branch of the Union.
917572-51-vol. 91-18
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not present at this meeting. There was indication that Fecteau also con-
fused the meetings. I find that it was at the next meeting rather than at this
one.when the subject was raised for the second time. At the beginning of the
meeting, Fecteau outlined the Union's demands and argued vigorously for the
union shop. Pilot stated his client's position on a general wage increase, on
union shop, and on checkoff of dues and explained that he had no authority to
change that position. Fecteau testified that Pilot made a "feeler" recommenda-
tion of a form of union security which he stated he would first have to submit to
his clients for approval, and that the Union countered with a proposal for mainte-
nance of membership. Pilot denied that he had made a feeler recommendation
or that there was any talk of compromising on the union-shop demand at this
meeting. In view of Fecteau's confusion on other matters at the meetings
about this time, I find that there was as yet no talk of compromise. In view
of this finding, the record does not disclose an offer by the Union for mainte-
nance of membership until August. At the conclusion of the meeting Commis-
sioner Smith said that, in view of Pilot's statement that he had no authority to
deviate from the position he expressed on union security, another meeting should
be held with company officials present. All concurred.
The next meeting was held at the same place on June 1. Commissioner Smith
brought with him a Commissioner Cushman. For the Respondents there were
Pilot, Lown, and Kagan ; for the Union Fecteau, Bergeron, and the same com-
mittee as was present at the May 17 meeting. Smith announced that the con-
ference was between the Union and the Penobscot and Old Town Shoe Companies.
Fecteau said they bad not yet negotiated on the Old Town contract. Lown
protested that he was surprised, that they had talked about that at the April 5
meeting and it was understood that whatever they did for Penobscot would
be done for Old Town. Each of the witnesses who testified to this matter quoted
Lown differently. From all the testimony, I conclude that Lown in effect
reiterated what he and Pilot had said at the April 5 meeting. Fecteau appar-
ently did not protest further. The greater part of the meeting appears to have
been devoted to the conciliators' efforts to effect a compromise on the issue of
union security. The parties were put in different rooms for part of the time.
Through the conciliator the Union offered to reduce its wage demand in an effort
to get union security. The Respondents offered a modified union-shop proposal
which the Union rejected as no better than an open shop., No agreement was
reached.
On June 8, 1949, Facteau telephoned Pilot, told him the situation was serious,
and asked for another meeting. Pilot arranged with Lown and Kagan for a
meeting that night, but through a misunderstanding Fecteau was not notified.
After the omission was discovered arrangements were made to hold a meeting
at Bangor for an hour the next morning before Lown left town.
At 7: 30 a. in. on June 9, Lown, Kagan, and Pilot met at the hotel in Bangor
with Fecteau, Bergeron, and the same committee of employees as before. At
this meeting Fecteau said that the employees were becoming impatient. Briefly
the parties discussed the subject of union security and check-off. Lown said,
according to Fecteau, that the Respondents would grant only the type of union
security which it already offered and which the Union had already rejected,
4 The proposed clause would have given the Respondent the right to retain an employee
who failed to maintain his membership unless the Union tendered a substitute of equal
ability. Fecteau testified that the Union countered with an offer for maintenance of mem-
bership. At first he placed this on May 17 but later admitted it might have been at the
June 1 meeting.
OLD TOWN SHOE COMPANY 261
and he indicated that if the Union did not accept that there was no use in further
discussion. In the lobby of the hotel as they were leaving, Pilot told Fecteau
that Kagan felt more strongly about union security than Lown, but that the
night before, while he and Lown and Kagan were together, he was convinced
that they had persuaded Kagan to give a modified union-security clause along
the line proposed by the conciliator at the June 1 meeting, and he said he felt
that if Fecteau would meet with Kagan alone they could resolve their differences.
Fecteau said it was not his custom to meet without the union committee and
that, if Kagan wished, he and the committee would talk with him while they
were still at the hotel. But Pilot said that Kagan wanted to meet him in his
office in Old Town. Fecteau said he was not interested. That morning Lown
and Fecteau left town on the same plane, and Lown also asked Fecteau to meet
Kagan alone. Fecteau refused, but Lown persisted, and finally Fecteau said he
would think about it 6 He never did, however, meet with Kagan alone. Between
June 9 and his return to Old Town on June 13, Fecteau telephoned Commissioner
Smith to tell him of the results of the last meeting, and Smith said he would
try to arrange another meeting. No meeting resulted, however.
4. The strike and succeeding events
On June 13, at a meeting in Old Town, the Respondents' employees voted to
strike. The strike began the next day, June 14, and lasted until August 15.
On June 15, the day after the commencement of the strike, the Bangor Daily
News e carried a news story quoting Pilot as saying for the Respondents, "We
won't negotiate on. the question of a union shop or anything unless they call off
the strike." This statement in substance was reiterated by the Respondents
throughout the period of the strike. It appeared in an open letter over the
name of the Respondents addressed to "Our Employees and Citizens of Old
Town" ° which appeared in the pay envelopes of some of the employees on June
17; it was made by Kagan in an interview with the editor and copublisher of the
Penobscot Times, an Old Town weekly newspaper, on about the first day of the
strike, and the interview was published in the June 17 and June 24 issues of
that newspaper ; it appeared in an advertisement in the Penobscot Times on
July 1, addressed to "Our Employees" and subscribed by Lown and Kagan for
the Respondents ; it was repeated by Lown about July 15 and by Kagan about
August 5 in interviews with the Penobscot Times editor, and they were quoted
in the issues of that paper on those dates ; and finally it was made by Pilot on
August 12 in a written statement which he prepared and handed to the State
Board of Conciliation and Arbitration at a meeting called by that board on
that date in an effort to settle the strike. The reason given in most of these
instances for the statement that the Respondents would not bargain with the
Union was that the strike was illegal.
During the strike the Union made no effort to contact the Respondents except
through intermediaries for the purpose of resuming negotiations, but on about
5 Lown testified that Fecteau agreed to meet with Kagan when he returned to Old Town
on the following Monday. He may have received that impression from the fact that
Fecteau seemed to weaken a little.
0It claims to he Maine 's largest daily newspaper with a circulation of more than 66,000.
7 The leaflet gave the Respondents' version of the bargaining before the strike. The final
paragraph read : "We are definitely committed not to meet with the CIO until this un-
lawful strike is called off by the organizers in recognition of their grave error. Only then
will be resume negotiations."
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 1 Pilot encountered Fecteau on the street near the plant, and a conver-
sation ensued in which Fecteau said that it was too bad they had been unable
to get together and that he thought they should be able to get together through
the efforts of "the State Department of Labor Conciliations."' Pilot replied, ac-
cording to Fecteau, that it was impossible, that the company would not agree to
negotiations.
Although the Union had no direct communication with the Respondents during
the strike, it did make efforts through intermediaries. During the latter part
of July 1949 an effort was made by a disinterested person and by a "citizens'
committee" to bring the parties together or find a basis for ending the strike.
Around July 21, before the citizens' committee started to function, a few
strikers asked Paul Dufour, a city councilman of Old Town, to see if he
could do something. Dufour went to see Kagan, and asked if he was willing
to talk with "these fellows." Kagan replied, according to Dufour that the
door was open and they could come in any time. Dufour's testimony tended
to be elliptical in expression of ideas, but from the balance of Dufour's testi-
mony I deduce and find that Kagan told him that if the employees returned
to work he would talk with them, thus implementing the Respondents' pre-
viously avowed position of refusing to bargain with the Union while the strike
continued. That evening Dufour related to the Union's strike committee what
Kagan had said. That committee said it did not think the employees would
return to work before negotiating but expressed itself as agreeable to talking
with Kagan if he wanted to do so. The next day Dufour returned to Kagan's
office to try to arrange a meeting. Lown, who was present, took over the talking,
according to Dufour's testimony, and spoke so continuously for an hour and
a quarter that Dufour had no opportunity to request a meeting with the Union.
Lown testified that Dufour did ask for a meeting and that he expressed willing-
ness, but if he did he did not make himself understood, because Dufour appar-
ently left in the belief that his time had been futilely spent. Dufour did nothing
further before the citizens' committee made its attempt to bring the parties
together.
The citizens' committee was composed of Stanley Needham, the city attorney
of Old Town, Robert Palmer, the city manager, and two members of the city
council. This committee met with . Kagan to inform him of their neutrality and
their desire to bring about a reconciliation of differences between the Respond-
ents and the Union. Kagan informed the citizens' committee that the men
should go back to work before negotiations would be resumed. Later the same
day the citizens' committee met with Bergeron and the union committee, which
indicated that it would be available for further discussions. A little later,
Needham telephoned Pilot who suggested that he get some concrete proposals
from the union committee. The citizens' committee on July 28 got the Union's
proposals, including proposals for maintenance of membership instead of union
shop, elimination of the request for check-off of dues, and a reduction in the
amount of wage increase demand. The citizens' committee was given authority
to present these proposals to the Respondents. On Friday, July 29, Needham
repeated the proposals to Pilot on the telephone. Pilot gave no answer at that
time. On August 1, after Pilot had had the conversation on the street with
Fecteau related above, he again spoke with Needham on the telephone and said
9 Pilot denied that Fecteau at this time or any other time during the strike asked for a
meeting. I conclude that Pilot did not interpret Fecteau's expression of regret and hope
as a request. Under all the circumstances I find that it was tantamount to a request.
OLD TOWN.. SHOE COMPANY 263
that there had been "turbulence" at the plant that day and.gave Needham to
understand that further conversation would not be worthwhile. Pilot testi-
fied that he asked Needham if the union people he was dealing with were
people who could bind the Union and that Needham was unable to assure him
that they were. Pilot conducted the cross-examination of Needham but did
not ask him any questions concerning the authorization of the union repre-
sentatives with whom the citizens' committee was dealing; he did ask Needham
if Daigle or Poirier, both members of the bargaining committee, had made
certain statements to him, and he asked if the union committee had on it
representatives of both factories, but he did not ask Needham if he, him-
self, had, on August 1, questioned the authority of the union committee. I
find that on August 1 Pilot was in no serious doubt about the authority of
the union committee and that the Respondents' rejection of the Union's pro-
posals and its refusal to meet with the Union was not based on any doubt as
to the authority of those with whom the citizens committee was dealing.
On the first day of the strike, while Eugene Shorey, foreman of the Old
Town hand-sewing room was sitting in his car outside the plant, at lunch time,
several striking hand sewers came to his car, and he asked them why they did
not come back and go to work. On about August 8, 1949, Foreman Owen Graham
of the Penobscot making room was handed for his signature several postal
cards by someone from the office. These postal cards, addressed to strikers,
bore the typed message in each case the same except for the name of the person
addressed :
DEAR ALBERT. You have been loafing for eight weeks now and you must
know that the promises made by the outside organizers are nothing but
lies. You also know that the walkout has been lost and there is no longer
any reason for you to continue losing your wages.
Production is now up to where we must put an operator on your machine.
We would prefer that you come back and be with us but in any case we can't
keep your machine open any longer.
Joseph Couillard, foreman of the Penobscot lasting room, denied that he had
sent out any such cards but he testified that he knew some had been sent out
in his name.
In the first part of August, Fecteau sought, through Marion Martin, State
commissioner of labor, to bring about a resumption of negotiations. Martin
spoke with Pilot and with Kagan. No meeting resulted. Thereafter the State
Board of Arbitration and Conciliation called a meeting for August 12, 1949,
at Old Town. On that day Fecteau and a committee of strikers from both
factories met with the three-man board in one room. Pilot appeared and was,
for the first part of the session, put in a separate room. Later they were
brought together in one room. At the outset Pilot handed the State Board the
following statement which he had prepared in advance :
Our position is, and remains, that the strikes against both shoe com-
panies, Penobscot Shoe Company and Old Town Shoe Company, were un-
lawfully initiated and are being unlawfully maintained.
The only dispute in negotiating with the CIO, Shoe Workers Union, arose
from what we call a closed shop, under the Taft-Hartley Act, and what
the union calls union security and maintenance of membership.
In these circumstances, our position remains the same. We cannot, and
will not, negotiate with this union until the strikes are officially called off,
and those workers who are on a strike return to work, as work is available.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We appreciate the good offices of the Commissioner of Labor, of Maine,
to attempt to bring the parties together, however, in the light of existing
facts, we have no alternative.'
At some point in the meeting Kagan was requested to come over from the
office. Kagan came and he and,Pilot discussed with the State Board ways and
means for terminating the strike. That board proposed to the Union, as pur-
porting to come from the Respondents, that if the Union would call off the
strike immediately the Respondents would agree to reinstate all the strikers
as soon as possible and that the Respondents would resume negotiations. The
Union at first refused to accept this and there was considerable discussion on
the subject of reinstatement of strikers. However, when the State Board told
the Union that if they did not accept it, the State Board would find the Union
responsible for continuing the strike, the Union said it would recommend to the
membership that the strike be called off "on the condition that the Company
immediately resume negotiations.... " Concerning reinstatement of strik-
ers, the Respondent took the position that they would not discharge anyone hired
during the strike to replace a striker and would rehire strikers only as jobs were
available. And the Respondents stated that they would refuse to take back
three named strikers for the following reasons : Andrew Poirier, because he had
been laid off before the strike and was not an employee at that time ; Laurence
Daigle, because "he was a criminal" ; 10 and Maurice Duplissis because he had
made a disparaging remark about Kagan.
At a union meeting held on Sunday, August 14, Fecteau told the employees
of the proposal for settling the strike, saying that they had the assurance of
Pilot and the State Board that the strikers would be rehired just as soon as
they possibly could be, work being available, and that negotiations would be
resumed immediately. Decision was deferred until the next day. On August
15 Fecteau and Bergeron called on Pilot and asked him when negotiations would
be resumed if the strike was called off. Pilot said that he would want a delay
because he was tired." That night the Union voted to terminate the strike,
and on August 16 many of them went to the plant and made personal application
for reinstatement. On August 17, the Union wrote to the Respondents request-
ing reinstatement of all the strikers. Under date of August 18 many of those
who had been strikers made written application for reinstatement personally.
Some of the strikers have been reemployed on various dates from August 16 on.
Others have not yet been reemployed.
On about August 19, 1949, Commissioner John O'Reilly of the Federal Medi-
ation and Conciliation Service, taking the place of Commissioner Smith, tele-
phoned Pilot to arrange a date for resumption of negotiations. Pilot, who ad-
mitted that he was irritable with O'Reilly, asked him how he happened to come
into the matter and asked him why he was rushing him so. O'Reilly was "put
out" with Pilot, the latter testified. Pilot told O'Reilly to write him a letter
"and tell me what you want to do and how you want to arrange things." O'Reilly
' In view of the fact that Pilot handed this to a member of the State Board and that
Fecteau received a copy from one of the members of that board, I find no merit in the
contention in the Respondents ' brief that this statement was never issued.
10 Daigle had been convicted of malicious mischief on June 29, 1949.
11 Bergeron quoted Pilot as saying that he would need at least a few days before renewing
negotiations. Pilot quoted himself as saying, "I told you up here at the august 12 hearing
before the [ State] board that the resumption of negotiations would start but that I wanted
at least up to two weeks. . . .
OLD TOWN SHOE COMPANY 265
wrote on August 20, 1949, explaining his position in the matter, requesting a
conference date as soon as possible on or after August 23, and requesting noti-
fication "in the event your client refuses to meet with this Service." Pilot
testified that he got over his "beef" and wrote to O'Reilly, without consulting
either Kagan or Lown, arranging for a bargaining conference for August 31,
1949; but on August 23 Pilot wrote to O'Reilly saying that the date fixed "ap-
parently is impossible-not so far as I am concerned, but both Mr. Kagan and
Mr. Lown wish to be present at this meeting and both have advised me that I
should not have arranged a date without consulting them about it." He went
on to say that Kagan and Lown would be unavailable until the week of Sep-
tember 12. Pilot testified that he had heard from O'Reilly since August 23,
1949, but that no bargaining meeting had been held after the end of the strike.
5. Contentions of the parties; conclusion respecting refusal to bargain
As to Old Town, the complaint alleges that there was a refusal to bargain on
May 17, 1949. The Respondents in their brief contend that it was agreed
on April 5 that negotiations were to apply to both Respondents and that
this understanding remained in effect throughout the period of negotiations.
Only at the April 5 and June 1 conferences was anything said by the Union
about bargaining for Old Town. If there was any refusal it was on one or both
of those dates and not independently on May 17. The only reference to bargain-
ing for Old Town which was made on May 17 was that made before the meeting
while the group was awaiting Fecteau's arrival when the conciliator questioned
Pilot as to whether they were bargaining for both companies and Pilot gave
an affirmative reply. In support of his contention that there was a refusal to
bargain as to Old Town, G. C. counsel in his brief points to evidence supporting
the Union's understanding that they were not bargaining for Old Town to the
effect that at none of the bargaining meetings was a committee of the Old Town
employees present ; and, when the conciliation service was asked to intervene, it
was asked only for Penobscot 12 On the other hand, it may be pointed out that
the Union, even if it entertained the belief that bargaining was for Penobscot
only, did not demand separate bargaining, did not insist on the presence of the
Union's Old Town bargaining committee at joint conferences, did not accuse Old
Town of an unfair labor practice at any bargaining conference before the strike,
and did not in any other way put Old Town on notice that it was treating the
replies made by Pilot and Lown as a refusal to bargain for Old Town. Instead,
after the commencement of the June 1 meeting, the Union dropped any further
mention of the subject until it filed its amended charge. A proper inference
may be drawn that, if the Union did not understand that negotiations were being
conducted for both Respondents it at least was agreeable to postponement of
separate negotiations for Old Town in the expectation that most of the terms
agreed on for Penobscot would also be agreed on for Old Town. I have already
found that there was no complete refusal to bargain for Old Town ; there was
at most a postponement of negotiations. And if the Union was not actually willing
thus to postpone Old Town negotiations, its conduct was such as to lead the
Respondents to believe that it acquiesced. Under these circumstances I find
that there was no refusal to bargain for Old Town before the strike.
14 If intervention was asked originally for Penobscot only , the Union enlarged upon its
request later. If this were not so, the conciliator would not have alluded to Old Town bar-
gaining at the opening of the June 1 meeting.
.266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whatever differentiation may have been made between the Respondents before
the strike , none was made by either party after the beginning of the strike.
Both plants were struck . The Respondents adopted the same attitude of refusal
to negotiate before the strikers returned to work. All efforts to settle the strike
were made on behalf of both. There will be no further occasion , therefore, to
deal with the Respondents separately on the issue of refusal to bargain. G. C.
counsel urges that the strike at Penobscot , although economic in its beginning,
became almost at once an unfair labor practice strike as a result of that
Respondent 's "open and public refusal to deal with the Union until the strike
should be terminated ." As there is no reason for differentiating between the
Respondents for the period following the strike , I shall consider this argument
as applicable to both Respondents.
The Respondents , to meet this claim of the General Counsel , argue that the
strike was illegal and that the Respondents were not obliged to bargain with it
during an illegal strike ; that the Union was the one who refused to bargain
on June 13 and therefore it was not incumbent on the Respondents to bargain ;
and that in any event there could be no refusal to bargain until the Union made
a request to bargain and that the Union made no such request.
The Respondents argue that a strike for union security is illegal under the
common law of the State of Maine ( citing Keith Theatre v. Vachon et al., 134
Me. 392 ) and that the strike in the instant case was illegal under the Act also
because the purpose of the strike was "to coerce the respondents to accede to an
illegal union security clause. " The last argument was predicated on the fact
that the Union had not been authorized to make a union-security agreement
pursuant to Section 9 (e) as required under Section 8 (a) (3). The Respondents'
argue that , admitting that the contract would have been legal if it had contained
a provision therein making the union -shop clause effective only after an election
as required by the Act ,13 still the Union did not wish to include such a provision
in the contract , and a separate letter postponing the effectiveness of the union-
shop clause until after election would not have validated the contract ( citing
Roosevelt Oil and Refinery Corporation , 85 NLRB 965).
The laws of Maine are not claimed to outlaw union-security provisions in labor
agreements . It is only a strike to obtain a union -security provision which is
claimed by the Respondents to be illegal . However they cite only the Keith
Theatre case , decided in 1936, in support of this contention . A careful reading of
the court 's opinion in that case discloses that the Supreme Court of Maine was
not called upon to decide the validity of a strike by employees of the struck
employer to enforce a union -security clause. That case involved a question of
the use of an injunction against stranger picketing . The court decided that
stranger picketing to unionize an employer is illegal when his employees are not
on strike and have no grievance against their employer. Although the court
indulged in dicta concerning the legality of a strike for a closed shop, it expressly
stated that it was not passing on the legality of a strike by employees for a
closed shop , and it did not touch upon other forms of union security . I find no
authority for the Respondents ' claim that the strike in the instant case was
illegal under the common law of Maine. On May 13, 1947, the State of Maine
enacted a statute banning the closed shop but expressly excepting the so -called
union shop ." This law was defeated in a referendum held on September 13,
13 It has been held by the Board that it is legal under such condition . Wyckoff Steel Co.,
86 NLRB 1318 ; Schaeffer Body, Inc., 85 NLRB 195; Hazel-Atlas G lass Co. and Clarksburg
Paper Co., 85 NLRB 1305.
14 Chapter 395, L. 1947.
OLD TOWN SHOE COMPANY 267
1948." Such expression of public policy convincingly establishes that the union
shop was not unlawful in the State of Maine at the time of the strike.
The. Respondents, in the argument in their brief that the strike was illegal
under the Act, do not suggest that the Union violated any specific provision of
Section 8 (b) of the Act in striking "to coerce the respondents to accede to an
illegal union security clause." But the illegality, if any, presumably would arise
under Section 8 (b) (1) from attempting to compel the employer to agree to a
union-shop clause with no proviso in the proposed contract that the union-shop
clause should be operative only if authorized by an election under Section
9 (e) (1) of the Act" And the Respondents assert that Fecteau "did not want
such a provision in the contract" and that a separate letter by the Union to the
Respondents would not substitute for such a proviso in the contract (citing
Roosevelt Oil and Refining Corporation, 85 NLRB 965). It is true that Focteau
showed a disposition to utilize a separate letter rather than a proviso in the
contract itself to make the effectiveness of the union-security clause dependent
upon a prior election, but it does not appear that the strike was caused by a
disagreement over the manner of expressing such condition. Fecteau testified
that the Union had expressed such a condition in three ways in dealing with
employers : By a clause in the contract, by a separate letter, and by an oral
agreement. If the Respondents had insisted on its appearing in the contract,
the Union might very well have agreed to that." But matters did not reach the
issue of how to express the agreement, as no agreement for union security was
ever reached. There is no basis, therefore, for finding that the strike was to
compel the Respondents to include in the contract a union-security clause with
no proviso for a Section 9 (e) election. The mere fact that the union-security
demand was one of the issues giving rise to the strike or even the principal issue
in no way renders the strike illegal. The Act does not require a Section 9 (e)
election before bargaining on the subject may take place. The Act requires such
an election only as a condition precedent to the making of an agreement requiring
union membership as a condition of employment "
The Respondents also contend that the Union refused to bargain when Fecteau
failed to meet with Kagan alone on June 13 and instead led the employees to
strike. I have found that Fecteau did not make a definite appointment to
15 23 L. R. R. M. 3040.
16 Presumably it would not be contended that there would be a violation of Section 8 (b)
(2), because the Union did not seek to enforce a union-shop clause before an election under
Section 9 (e).
17 Andrew Poirier, temporary chairman of the Union's Penobscot committee, testified that
they had asked Kagan if he would accept a union shop if the employees voted in favor of
it and that Kagan's answer had been, "No." It would appear, therefore, that the Union
was not seeking a union shop before an election , but that it did not ask for a union-shop
election because it would have brought the parties no nearer to an agreement.
18 The Respondents at the hearing, as well as in their brief, contended that they were
not obliged to bargain with the Union during the strike on the "unclean hands" doctrine
because the Union conducted the strike in an unlawful manner, as by mass picketing, etc.
The Trial Examiner excluded such evidence when offered as a defense to the alleged refusal
to bargain. See Consumers Lumber & Veneer Company, 63 NLRB 17 (footnote 17 on p. 25).
The evidence was not excluded on the ground that unlawful conduct is to be condoned
but rather on the ground that this matter was more in the nature of a counterclaim than
a defense . However, the Respondents announced their determination not to bargain with
the Union almost at the outset of the strike and before they were aware that there would
be any mass picketing or other alleged unlawful conduct. The Respondents ' determination
not to bargain , therefore , was made independently of any alleged unlawful conduct of the
Union.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meet Kagan. In fact, the course of events prove that it would have been useless
to do so. Pilot and Lown claim to have "softened" Kagan up on June 8 to a
point where he would have compromised on union security if Fecteau would have
done so. Yet, although Kagan was present at the meeting of June 9, he made
no overtures toward reaching a compromise. It was apparent at that time
that an impasse had been reached, and Fecteau cannot be blamed for a refusal
to meet Kagan alone, without the union committee. Fecteau's offer to meet
Kagan immediately after the meeting of June 9 while Kagan and the union
committee were still present was rejected by Pilot who said Kagan wanted to
meet Fecteau in his office. I find under these circumstances no such refusal by
the Union to bargain as would excuse the Respondents thereafter from its duty
to bargain. At this point the Union chose to strike for the purpose of gaining
that which it had been unsuccessful in getting by means of bargaining. For
a union to strike when an impasse has been reached is not in itself a refusal to
bargain, nor does that extinguish the duty of the employer to bargain during
the strike." The Respondents cite a number of cases in support of their con-
tention that a failure by the union to bargain in good faith precludes a finding
that the employer refused to bargain in good faith. Those cases, most of them
involving demands for the now illegal closed shop, do not support the Respond-
ents' contentions that the Union in this case refused to bargain. For example,
in 2Vational Maritime Union of America, 78 NLRB 971, which the Respondents
cite, the Board rejected a Trial Examiner's finding that an adamant position
on a demand for a hiring-hall provision, was proof of a refusal to bargain in
good faith. The Board said, "An employer's intransigence on a particular issue
has been found to evidence bad faith in bargaining where the record as a
whole has indicated that such intransigence reflected an intention to avoid
coming to any agreement." Although the Board there found that the union
had refused to bargain, this finding stemmed not from the stubborn position
of the union, but from its "insistence, as a condition precedent to entering into
a collective bargaining agreement, that the other party to the negotiations agree
to a provision or take some action which is unlawful or inconsistent with the
basic policy of the Act." The record in this case does not indicate that the
Union was insisting upon a union shop as a means of avoiding the reaching of
any agreement, the union-shop demand was not in itself illegal or inconsistent
with the basic policy of the Act ; and the record does not establish that the Union
insisted, as a condition precedent to the reaching of an agreement, that the
contract omit any proviso for a Section 9 (e) election. The refusal to grant
concessions and the reaching of an impasse in this case do not reflect on the
good faith of the bargaining.
The Respondents' next argument is that during the strike the Union failed
to request the Respondents to bargain and that therefore there was no duty
on their part to bargain. G. C. counsel argues that a request would have been
a useless gesture in the face of the Respondents' avowed policy, "forcibly brought
to the attention of the Union and the strikers," not to bargain during the strike.
It is unnecessary to decide whether or not the General Counsel's contention that
a request was excused is correct because I find that the Union indicated its
'A Craddock Terry Shoe Corp., 73 NLRB 1339; Jeffery-DeTVitt Insulator Co. v. N . L. R. B.,
91 F. 2d 134 , 139 (C. A. 4 ) ; The American Laundry Machinery Company, 76 NLRP. 981,
enfd. in 174 F. 2d 124 ( C. A. 6) ; N. L. B. 'B. v. Reed & Prince Mfg. Co., 118 F. 2d 874
(C. A. 1).
OLD TOWNS SHOE' COMPANY 269
desire to negotiate by its efforts through various intermediaries 20 in July and
August, and more particularly by Fecteau in his conversation with Pilot on
August 1; I find that the Respondents were not in any doubt as to the desire
of the Union to meet for further negotiations ; and I find that, in the face of
the Respondents' public declarations of intention not to bargain with the Union
during the strike, a more formal request was not necessary, particularly where,
as here, the Respondents had already recognized and bargained with the Union
before the impasse was reached. Meetings are seldom, if ever, sought to be
arranged by conciliation services unless one of the parties has requested inter-
cession by such service. Although the Respondents could have entertained no
doubt of the Union's desire for a meeting by August 12, on that date the Re-
spondents notified the State Board in writing that they would not bargain until
the strike was 'terminated.
At the meeting of August 12 the Respondents agreed to meet the Union and
continue bargaining, but their good faith in so agreeing is open to question in
view of all the evidence, including subsequent events. Pilot first postponed
setting a bargaining date by pleading fatigue. Fatigue, not illness, might
possibly justify a delay of a day or even a few days, but unless fatigue is of such a
character as to require medical attention, which was not shown here, a refusal
for 2 weeks to meet with the Union gives rise to doubts as to the Respondents' earn-
estness in having Pilot conduct negotiations. Kagan knew that one condition
to the termination of the strike was the resumption of negotiations. If he did
not intend that negotiations should be left in Pilot's hands, it was incumbent upon
him to notify Pilot to set a meeting for a time when he could be present. Pilot's
first question would then normally be, "Is there any time which would not be
convenient for you?" In the absence of any instruction to Pilot to the contrary,
I would infer that Pilot had implied authority to arrange for a bargaining con-
ference. Lown testified, without mentioning dates, that after the strike Pilot
told him that the conciliator had asked him for a certain date. "I believe," Lown
testified, "it was during Labor Day week and I told Mr. Pilot that we have a
leather show during that week, and I suggested the following week." August 31,
the date set by agreement between Pilot and the conciliator, was, however, 5 days
before Labor bay in 1949. Neither Lown nor Kagan testified that they were
unable to attend on August 31 and neither mentioned anything which occurred
on that date that would have interfered with their attendance. The Respond-
ents' cancellation of the August 31 bargaining conference, after having postponed
it for that long, under all the circumstances of this case appears to have been a
dilatory tactic inconsistent with a good faith intent to bargain. Even subsequent
communications between the conciliator and Pilot produced no bargaining con-
ference. On all the evidence, I conclude and find that the Respondents sought to
avoid any meeting with the Union after the strike and resorted to dilatory tactics
to that end. It follows that the Respondents have failed and refused to bargain
with the Union during and after the strike in violation of Section 8 (a) (5) of
the Act.
B. Discrimination in regard to hire and tenure of employment
1. Failure to reinstate strikers
The Respondents contend that the strike was an economic strike and that it
was their obligation only to reinstate strikers if their positions had not already
20 The fact that the request to bargain did not come from Fecteau or Bergeron but from
the union committee through authorized third persons I deem immaterial . See Valley
Broadcasting Co., 87 NLRB 1144.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been filled. Replying on Anchor Rome Mills, Inc., 86 NLRB 1120, they contend
that no casual relation was shown between the alleged unfair labor practices and
the continuance of the strike. On that authority it may be found that the few
instances of individual solicitation did not prolong the strike in this case. But a
refusal to bargain during a strike is on a different plane. A strike is resorted
to by a union in an effort to strengthen its collective bargaining position. But a
strike looks not to a termination of all bargaining; it looks rather toward an
eventual reconciliation and a settlement of differences. Hence the duty to bargain
during a strike is not extinguished. But the employer's fixed policy not to
bargain would discourage any inclination on the part of the union to make
overtures to resume bargaining. It is in effect notice to the union that concilia-
tion will be rejected and that it must win or lose by the strike. The natural
result of this attitude would be to prolong the strike. Although it is not cer-
tain that a meeting would have resulted in a resolution of differences; it is
certain that no resolution of differences could result while the parties were
estranged. It is obvious that in this case the Union felt itself rebuffed and dis-
couraged from making any direct request for a meeting. I conclude that a
casual connection is shown between the Respondents' refusal to bargain and
the prolongation of the strike.
The strike, economic in its inception, became an unfair labor practice strike.
The General Counsel's position was that the strike became an unfair labor prac-
tice strike as soon as the Respondents publicly issued their statement of fixed
policy not to bargain during the strike. But the Respondents claim that their
statements of refusal to bargain during the strike were privileged free speech
under Section 8 (c) of the Act because they contained no threat of reprisal or
force or promise of benefit and that there was no refusal to bargain because the
Union did not request it. They cite S. 117. Evans & Son, 81 NLRB 161. The
Board there held that an employer's statement that it did not intend to bargain
with a certified union because it felt the decision of the Board was wrong in
certifying a union which had received only 57 votes out of 176 employees and
that it would not abide by the Board's decision unless ordered to do so by the
United States court was not in itself a violation of Section 8 (a) (1) of the Act.
In that case the Board found a refusal to bargain, and the question of whether
the posting of a notice of refusal to bargain was an independent violation of
Section 8 (a) (1) of the Act was more in the nature of an academic problem,
as there was at the same time a violation of Section 8 (a) (5). As I construe
the Evans decision, it decided only that it was not, independently of the violation
of Section 8 (a) (5) in that case an unfair labor practice for an employer to tell
his employees that he disagreed with a decision by the Board and that he
intended to await a decision by the court either reversing or affirming that
decision. The statement of repudiation of the duty to bargain here made was
made after the Union had been recognized and bargaining had taken place but
before the Union had requested renewed negotiations. There was no question
here of the Union's representative status as there was in the Evans case. An
open repudiation of the principle of collective bargaining during a strike, when
collective bargaining needs to be encouraged more than ever, necessarily has the
effect of undermining the Union .2' I have already found that the Union made a
sufficient request and that there was an actual refusal to bargain beginning with
July 21, 1949. But as the right to strike is a recognized incident to the employees'
right to organize and to engage in concerted activities, a threat, even before
. 21 See Pacific Gamble-Robinson Company, 88 NLRB 482.
OLD TOWN SHOE COMPANY 271
July 21, to deprive the employees of bargaining rights because they engaged in
lawful concerted activity would be as effective a weapon in undermining the
chosen representative of the employees as the actual deprivation of such rights.
Under the circumstances of this case, therefore, I consider it immaterial, for
the purpose of determining when the strike became an unfair labor practice
strike, whether or not the Union had sought to reopen bargaining negotiations
at the time when the Respondents first announced their fixed policy, unless the
anticipatory repudiation is protected free speech under Section 8 (c) of the Act.
In International Typographical Union, 86 NLRB 951, the Board, referring to
publications of the Respondent Union in that case said, in part:
. . . These documents include official publications concerning the adoption
of the collective bargaining Policy here in issue, and post card bulletins and
other statements interpreting, construing, and directing the enforcement of
the established Policy in a particular manner. All of the documents con-
sidered by us report the official position of the Respondents with respect to
a collective bargaining Policy which they were empowered to interpret and
enforce and which was actually followed and enforced in negotiations with
employers.
On the basis of the legislative history of Section 8 (c),n we are entirely
satisfied that these publications were not expressions of "views, argument or
opinion" privileged by that section. .. .
17 See Matter of Amalgamated Meat Cutters ( The Great Atlantic and Pacific Tea
Co. Case), 81 NLRB 1052.
Here, too, the Respondents' statements of refusal to bargain during the strike were
statements of fixed policy rather than expressions of views, arguments, or
opinions.
In the Amalgamated Meat Cutters case cited by the Board (supra), the Board
found that the Union there did not raise the issue of jurisdiction in good faith,
where it claimed that it believed the company was not subject to the Board's
jurisdiction, in view of the many prior decisions of the Board in similar cases.
The reliance of the Respondents here upon the Keith Theatre case to justify their
claimed belief that the strike was illegal is just as tenuous as was the belief of
the Meat Cutters. As pointed out before, the Keith Theatre case did not deal
with a strike for a union shop or, for that matter, any other strike; it dealt
with the question of the legality of stranger picketing.22 At best, therefore, the
Respondents were relying on dictum of a 1936 decision of the Maine Supreme
Court. If the Respondents had genuinely placed reliance on the Keith Theatre
case, they might easily have put it to a test by seeking an injunction of all
picketing. The Respondents do not contend that they did this. In view of the
decision in the Swing case and of the closed-shop statute and its rejection on
referendum in Maine, there should have been no doubt by the Respondents that
the laws of Maine did not render the strike here illegal. On all the evidence 1
find that the Respondents announced their determination not to bargain, not
merely for the purpose of expressing their views, but to influence the employees
to abandon their concerted activity and to undercut the Union. I find this
conduct was a violation of Section 8 (a) (1) of the Act.
The Respondents seem to have assumed that, as long as the Union persisted
in a demand for the kind of union security which they were unwilling to give,
22 Even the decision of the Maine court could not have been relied on after the. decision
of the United States Supreme Court in American Federation of Labor v . Swing, 312 U. S.
321.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was nothing to be gained by bargaining. But the Union did propose,
through the citizens' committee, a maintenance-of-membership provision instead
of a union shop. This may still have been more than the Respondents were
willing to give, but it indicated a conciliatory disposition on the part of the Union.
If the parties had met, it is possible that they might have reached a middle-ground,
especially through the State or Federal conciliation services. If the impasse
could not be broken, the responsibility for continuation of the strike would then
have been upon the Union. But as the Respondents rejected the principle of
bargaining, they are not in a position to say that the result of renewed bargaining
would have been another impasse or that the Union's position on union security
expressed in an offer to renew negotiations, rather than in a bargaining con-
ference, was the cause of the prolongation of the strike. I find, therefore that
the Respondents' announced policy of refusing to bargain during the strike had a
necessary tendency to interfere with efforts toward reconciliation and to prolong
the strike. It follows that the strike became an unfair labor practice strike at
the time shortly after the commencement of the strike when the Respondents
first announced their fixed policy. As this was first published on June 15, 1949, `
I find that this was the date on which the strike became an unfair labor practice
strike. On that date the Respondents forfeited the right permanently to replace
the strikers.
Between August 16 and October 4, 1949, the Respondents reinstated a majority
of the strikers. They reinstated these employees as jobs were available, on the
theory that the strike was an economic strike. The Respondents' answer appar-
ently relies on the strike settlement agreement in justification for following this
course of action. As the strike became an unfair labor practice strike, this
course was not justified.24 A number of others who applied unconditionally
for reinstatement were not reinstated. By failing to reinstate such employees
on application, the Respondents discriminated as to the strikers' hire and tenure
of employment, in violation of Section 8 (a) (3) of the Act.
The Respondents refused to reinstate three employees for whom application
had been filed, claiming justification. These are Andrew Poirier, Laurence
Daigle, and Maurice Duplissis. The refusal to reinstate Poirier will be dealt
with in connection with his layoff hereinafter.
Daigle was convicted in the Old Town Municipal Court on .June 29, 1949, of
malicious mischief. His offense apparently consisted of breaking windows in
the house of an employee who continued to work during the strike. He appealed
his conviction to the Superior Court of Penobscot County. On September 22
he was found guilty in that court, and on September 23 he was sentenced to serve
6 months in jail. The last entry shown on the docket in his case indicates that
cash bail was received by the clerk of the court on September 30. It does not
appear anywhere in the record why Daigle was released on bail. Daigle made
application for reinstatement at the end of the strike. Kagan testified that his
reason for not taking Daigle back, was that "he is a criminal. . . . He broke
windows and the people wouldn't work with him even, because he, broke windows
in the houses." Kagan did not identify the people who he claimed would not
work with Daigle.
As long as a striker maintains his status as an employee his status should be
capable of being terminated for good cause just as an employer may discharge
zc Fecteau testified that he read the story in the Bangor Daily News issue of that date.
.a4 Stewart Die Casting Company, 14 NLRB 872. 895-6, enfd . as mod. 114 F. 2d 849
(C. A. 7).
OLD TOWN SHOE COMPANY 273
an employee for cause when there is no strike . In each case it is a question
whether the cause given is the real cause or whether the real cause is union
membership or activity. In Kansas -Milling Company, 86 NLRB 136, the Board
said : "Although we have not in the past condoned, and we do not now condone,
the use of violence on the picket line or elsewhere in the course of a strike, we
think that the acts the Respondent complains of are clearly not of such a char-
acter as to render these employees unsuitable for reemployment." Where a
striker is denied reinstatement at the conclusion of a strike because of some
conduct occurring while lie was out on strike, that conduct might not in itself
render the striker unsuitable for further employment. Where it does not,
an employer's motive in terminating the employ of the striker is subject to
question. Employers do not customarily discharge employees for minor acts
of misconduct or indiscretion where such misconduct does not reflect upon the
employer. A presumption exists that when a striker is discharged for such
minor acts of misconduct, and there is no showing that a nonstriker would be
discharged under the same circumstances, the employer's real reason for the
discharge is the striker's concerted activity. In such instance the employer is
merely exercising his prejudice and is seizing the opportunity to make a dis-
criminatory discharge under the guise of a legitimate excuse. I would be
disposed to say that an employer might conscientiously and in good faith dis-
tinguish between serious, but not necessary felonious, acts of misconduct which
would or would not render an employee unsuitable for further employment by
taking into account the motivation of the striker or employee as to whether or
not the wrong is done with malice aforethought or only in the heat of temper.
No such distinction has been mentioned by the Board, however, and the examples
of misconduct enumerated by the Board in the Kansas Milling case would seem
to indicate that such differentiation was not made there. However that may be,
in the instant case I cannot find that the Respondents in good faith made such a
distinction. Greenleaf testified that, during the strike, four employees stole
shoes from one of the Respondents and were convicted therefor, but that there-
after he, himself, hired one back at Old Town. The theft of shoes from the
employer is an act much more calculated to render the offending employee
unsuitable for employment than the act of throwing stones through windows
of someone else's house. When an employer rehires the guilty nonstriking
employee in the first instance but refuses to rehire the guilty striker in the
second instance the clear inference is that the second was discriminated against
because he was a striker. Accordingly, I reject the contention that Laurence
Daigle should not be reinstated by Old Town, by whom he had been employed.
Duplissis was denied reinstatement because, during the strike he offended
Kagan by a statement he made to him. Employee John Connors testified credibly
and without contradiction that, as Duplissis walked in the picket line, he turned
to Kagan and said, "It is too bad Hitler couldn't have lasted a couple of more
years. He'd have gotten rid of all the goddam Jews." Kagan and Greenleaf
each testified to substantially the same statement . Kagan testified that Duplissis
also said to him, "You come out, and I'm going to take your bald head off."
Such statements made to an employer or boss during employment would so
clearly be cause for discharge that no reason exists to believe that such conduct
was relied on merely as an excuse to discharge a striker. Although the Board
has distinguished between name calling during strike activities and name calling
at other times,2 I believe the expressions here go beyond such as might be
25 E. A. Laboratories, Inc., 88 NLRB 673.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condoned as the result of "animal exuberance." If Penobscot were required to
reinstate Duplissis, cause for constant friction between him and Kagan would
exist. Jibes and hoots during a strike when "animal exuberance" runs high
ordinarily are easily forgotten when calm returns. The type of statement here
made indicated an undercurrent of feeling that would be likely to persist. Old
Town should not be required to reinstate Duplissis.
2. The discharge of Robichaud
Joseph Robichaud, a hand sewer of 15 years' experience, was first employed
by Old Town Shoe Company as a hand sewer in 1946 or 1947. In the first part
of August 1948 he was employed again as a hand sewer. In September 1948 an
employee of Penobscot named Dionne handed Robichaud a number of union cards.
Robichaud testified that he passed out about 90 of such cards'26 most of them in
the Old Town plant, and when they were signed Robichaud took them back to
Dionne. Some time after this an employee informed Superintendent Frank
Greenleaf of Robichaud's activities and at sometime thereafter, Greenleaf
reported what he had heard to Manager Kagan. On October 29, 1948, Kagan
called Robichaud to his office. Although the testimony of Kagan, Greenleaf,
and Robichaud agreed as to some of the things that were said on this occasion,
Robichaud's testimony differs from that of Greenleaf and Kagan, for one thing,
in that Robichaud testified that he had 3 separate conversations with Kagan,
whereas the testimony of Kagan and Greenleaf combine all the instances that
Robichaud testified to into the one conversation which was held on October 29.
Both versions will be related.
a. Robichaud's version
According to Robichaud's testimony, Greenleaf came to him on the first occa-
sion, which Robichaud remembered as being in the first part of November and
told him that he should go to Kagan's office. When Robichaud walked into
Kagan's office, Kagan said, "I understand you are the president of the Union
here." Robichaud replied that he was and he was not, that he could be if the
boys wanted him. No officers had been chosen as yet, presumably. Kagan then
said, "You are also passing cards in the shop, I understand." When Robichaud
admitted that he had, Kagan said, according to Robichaud, "I don't want you
to pass any more in the shop after this. . . . You can go to their home, go in
front of my windows, but don't pass any more in the shop." Robichaud further
quoted Kagan as saying, "What do you think you are going to gain by the
Union? Do you think they can put the whip on me and sign papers I don't want.
I don't want to sign to the Union ; I don't ever." At the conclusion of the inter-
view Kagan told Greenleaf to pay Robichaud for his time, and Robichaud
returned to work.
The Union had petitioned for an election in September 1948. Because they
lacked about 20 cards of the number required, Robichaud set to work and, he
testified, procured another 20. Robichaud testified that he was called to Kagan's
office the second time on about December 17. According to Robichaud's version,
Kagan said to him, "Mr. Robichaud, the last time you was down the office, you
26 As there were approximately 175 employees in the Old Town unit and as the Union was
compelled to get additional cards to entitle it to an election after its first petition, this
figure is either an overestimate or some of the cards were not usable for one reason or
another
OLD TOWN SHOE' COMPANY 275
told me that you wouldn 't pass any more cards , and ... we had news from
Boston ... that you petitioned for an election , and ... today I got news that
You have enough cards to petition for election . Therefore , you must have passed
some more cards. . . . You are nothing but a liar." Robichaud testified that he
admitted that he had and that that was the end of the conversation. ,
Beaulah Robichaud , Joseph Robichaud 's wife, who worked in Penobscot , testi-
fied that on that same day, December 17, 1948, she went to Kagan as he was
walking through the shop and in speaking to him she mentioned her husband.
Kagan then said , according to Mrs. Robichaud , ". . . your husband-don't talk
about your husband.... He's the head of the Union , and he is nothing but a
damned liar and a damned 2-faced bastard." That night according to Mrs.
Robichaud she told her husband what Kagan had said about him . Robichaud
testified that the next day, which was Saturday , he went to the plant , presumably
to make Kagan apologize , but he found no one there . On Monday , December 20,
according to Robichaud , he went to the office to demand an apology. Kagan at
first denied having made the statement above quoted , and Robichaud then told
him to call his wife down . Kagan told Greenleaf , who was there , to get Mrs.
Robichaud . When she arrived , Robichaud asked his wife whether or not Kagan
had called him such names , and she answered , "Yes." Robichaud testified that
after Kagan had thought it over for a minute he said , "Maybe I could have... .
I was so mad that day. I had news of a letter . . . . It made me so mad, I didn't
know where I stood.... I went upstairs and your wife came to me to ask a
.question about something and she mentioned your name . . . . I lost sight of it.
,I might have done. I am deeply sorry. . . . I want you both to take my apolo-
gize." Robichaud testified that he and his wife accepted the apology and both
returned to work.
After he had gone back to work, Superintendent Greenleaf came to his work-
bench and said , "Mr. Robichaud , you know Mr . Kagan didn 't mean that because
he is too much of a man for that. He just forgot himself . . . . I am sure he is
not half of what you think . . . . I wish you would come over to my house some
night this week . I would like to see you ." Robichaud testified that he did go
to Greenleaf 's house 2 days later on December 22, 1948, and had "a friendly
chat" in which Greenleaf told him that the reason he had called him over was
that he wanted to talk to him about the Union . He quoted Greenleaf as saying,
"You know, if the Union come in the shop, we might have to close down. You
might lose your job. I might be out of work, also . You see, it 's no good for either
one ; it's no good for nobody. I wish you go back, get the boys together, and try to
talk them out of it." Robichaud testified that Greenleaf then picked up a copy
of Esquire Magazine and showed him the picture of the Old Town Trotter, the
loafer which the Respondent Old Town manufactures, and said that that "ad"
cost the Company $50, that it was a lot of expense to run the shop, " and we
really couldn't stand it." Greenleaf asked Robichaud to think it over and see
what he could do. Robichaud testified that he told Greenleaf he would do that
and let him know within 10 days or so, that he then said goodnight , and went
home.
b. Kagan's and Greenleaf 's version
As related by Greenleaf and Kagan, during the week of October 29, 1948 (the
date being fixed by a record showing a payment to Robichaud on a time rather
than piecework basis' on 1 day that week) when Greenleaf was walking through
the hand-sewing room, Robichaud asked to speak to him and said that-his wife'
917572-51-vol. 91-19
276' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had told him' that Kagan had called him navies and he wanted to know why.
Greenleaf said that he did not 'thfnk that Kagan would say anything like that,-
but that lie would check up'on 'it and letRobichdud know. Later in the morning:
when `t{agan arrived at the plant, Greenleaf went to his office and told him what
Robichaud had said. Kagan said-that he did not remember saying that but told
Greenleaf to tiring Robichaud down to , the office. Greenleaf brought Robichaud
there and Robichaud asked Kagan, "What right have you got to call me names'in'
front of' my"wife?" - Kagan said he did not remember having used the language'
wlich ' R•oliichaud•'said his wife had told him • about and asked Greenleaf to call
Mrs. •ltohichaud' to the office . Greenleaf called the stitching room and directed
tfiatMrs. Robichaud be sent down . When she came to the office , Kagan asked
her to repeat what lie`had said to her, and she did. Kagan said that he did not
use' shish language but that ' if she said he did use it he was very sorry and
apologized . ' Kagan then told - Mrs. Robichaud to return to work and he requested.
Robichaud to remain . Kagan then told Robichaud that he • had had *a report that
he was going around the factory and passing out cards to people who were work-
ing and explaining why they should sign the cards . He quoted himself as saying;
"I don't care what you are doing up at your house or what you ' are going to do'
outside of the factory , on the street , or any place for that matter , but in the
factory, while they are working , while yoiu - are working and we need , the work,
we are not paying you , for passing around cards , and please stop doing it."
Kagan testified that in all, Robichaud was in his office - for about three -quarters
of an hour and that when Robichaud Was leaving he told Greenleaf to pay him
for his time and to give him pay for 1 hour. Kagan testified that he did not recall,
having had any occasion thereafter to talk with Robichaud about anything.
Greenleaf testified that he was informed by an employee in the latter part of
August that Robichaud was passing out cards and that he reported that to Kagan
right away . Both Kagan and Greenleaf denied that they knew of Robichaud's'
passing out cards any other time . Greenleaf was not asked ' if he had invited
Robichaud to his house nor whether Robichaud came to his house as related by'
Robichaud . He did deny having told Robichaud "in his home one night" that'
if the Union came in, he and Robichaud would both lose their jobs, and he deniedI
that he had ever asked Robichaud to work against the Union.
c. Conclusions on the conflict in testimony
Portions of Greenleaf ' s testimony impressed me as something.less than com-'
pletely frank . He appeared to me to be distorting the facts in some instances to'
make them more favorable to the Respondents ' case. Because of this and be.-
cause it is improbable that if Greenleaf had notified Kagan late in August or,
even early in September that Robichaud was passing out union cards, Kagan'
would have allowed 8 weeks to elapse before speaking to Robichaud about it if
he were going to do it at all, and on all the evidence and my observation of the
witnesses , I do.not credit Greenleaf 's testimony that he learned of Robichaud's
solicitation and that he informed Kagan about it so long before the October 29,
interview , nor his testimony that Mrs. Robichaud was called in at the October
interview . Kagan appeared to be under the impression that he had talked with
Robichaud only once because of the fact that Old Town had only one record of
liaving . paid , Robichaud on a time basis. Robichaud was normally paid on a
piecework basis and Kagan testified that . he always paid employees for their
time, when he called them to the office. -Kagan appeared to have relied princi-
pally on the latter consideration in testifying that he could remember having
OLD TOWN SHOE : dOMPA'NY 277.
talked with' Robichaud only once, and that is presumably his reason for putting
the incident when Mrs. Robichaud was in his office as on the same day that he
spoke to Robichaud about his passing out union cards. However, according to
Robichaud, he and his wife were in Kagan's office only for a few minutes at the
time when he demanded an apology. There was no contention that Mrs. Robi-
chaud was paid for her time. I would infer that payment was not made for such
brief time lost. Furthermore, it was Robichaud who requested the audience
when he sought the apology, and it was not a matter of Kagan's calling Robi-
chaud into the office to discuss some matter that he had in mind. n Robichaud
and his wife gave every indication of testifying honestly to the best of their
recollections, although mistakenly, I find, as to dates. The fact that Robichaud
was mistaken about the date of his first conference with Kagan, in that he put
it in the first part of November instead of in the last of October, does not reflect
upon the veracity of the Robichauds. One of the easiest things for any witness
to be confused on is the date when something occurred. And Robichaud was
obviously confused. He at first testified that it was on Friday, December 19, that
he was called to Kagan's office for the second time and that it was on Monday,
December 22, when he went back to demand an apology. When shown by a cal-
endar that December 19, 1948, was on a Sunday, he said that the date must have
been December 17. Later, when asked if he was called to Kagan's office the
second time the same day as the election, which at Penobscot was held on Decem-
ber 17, he replied that he was not called that day. I am convinced by all the
testimony that Robichaud was mistaken not as to days of the week or date
within the month but mistaken as to the month itself. He apparently remem-
bered the second conversation as occurring in the month following that in which
the first interview took place. As he erroneously believed the first one was in
November, he supposed the second was in December. Actually the first one was
in October. Although the 19th of December was not on a Friday, the 19th of
November was. And the 22nd of November was on Monday. As the second peti-
tion for election at Old Town was filed on November 15,. Kagan's statement to
Robichaud that he had just heard about the second petition for an election makes
it much more likely that he spoke to Robichaud on November 19 than on December
17. Mrs. Robichaud testified that she was called to Kagan's office by her fore-
man, whom she identified only as Benny. During the week of November 19 a
foreman of the stitching room named Benny Newfeld was separated from Penob-
scot. If the apology occurred on November 22 instead of December 20, as Mrs.
Robichaud testified, she would have been more likely to suppose that it was Benny
who notified her, for by December 20 she would have been accustomed to her new
foreman. On all the evidence I find that the conversations took place substan-
tially as related by Robichaud and his wife, but I find that the first one occurred
(luring the week of October 29, the second one occurred on Friday, November 19,
and the others followed on November 22 and 24. As the language used by Kagan
in directing Robichaud to cease passing.out cards differed in Robichaud's and
Kagan's version mainly in that in Kagan's he made it plain that it was only'
while Robichaud and others were working that such activity was prohibited and
as no contention was made by the General Counsel that too broad a rule was laid
down in prohibiting union activity, I accept Kagan's explanation of his instruc-
tions to Robichaud.
2' That Kagan did not refrain from initiating talk about the Union is evident from the
testimony of employee Jack Friedman , who, in response to a question on cross-examination,
testified that, before the Penobscot election , Kagan called him aside and told him not to
get too active in the Union as he did not think the Union would be good for him.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Between 8:30 and 9 a. m. on January 4 , 1949, Robichaud 's foreman , Eugene
Shorey, came to him and asked him to come to the basement to look at a case
of shoes. Robichaud went with Shorey, and Shorey showed him a case containing
18 pairs of shoes bearing stamped inside them the number of a case that
Robichaud had worked upon. Shorey told Robichaud that these were his shoes
and that they were a very poor job. Robichaud looked at some of the shoes,
admitted that they were not the best, but commented that they were as good
as others that had gone through.28 Shorey then told Robichaud that he would
have to let him go.29 Robichaud and Shorey returned to the hand-sewing room
and Robichaud said to Shorey that he knew what he was getting fired for and
that it was not for his work on the shoes. Robichaud packed his tools and went
downstairs. Before he left the plant, Robichaud spoke to Greenleaf. Robichaud's
and Greenleaf's accounts of their conversation differed slightly. Robichaud tes-
tified, and I find, that he asked Greenleaf why he had fired him and that Green-
leaf replied, "Your work is not satisfactory . . . furthermore . . . things is get-
ting slack and we got to lay you off." Shorey testified that he did not remember
having reported Robichaud's discharge to Greenleaf, although he presumed that
he had, as it was his custom to do so. The time of such report, if in fact any
was made, is unknown. However, Greenleaf testified that after Robichaud's
discharge he next discussed the discharge with Shorey in the afternoon of that
same day. Yet, according to Robichaud's testimony, Greenleaf knew of Robi-
chaud's discharge and gave reasons therefor a few minutes after its occurrence.
Furthermore, Kagan quoted Greenleaf as reporting to him within half an hour
after the discharge, "I fired Robichaud...." I am convinced and find that
Greenleaf knew before it happened that Shorey would discharge Robichaud.
This was possible only if he directed Shorey to discharge Robichaud or
criticized Shorey in some way which he knew would provoke Shorey into dis-
charging Robichaud to escape further criticism himself. In either event, I find
that it was Greenleaf's purpose to discharge Robichaud.
Two witnesses called by the General Counsel testified to having overheard
conversations between Greenleaf and Kagan relative to Robichaud's discharge.
Clarence Witherbee, a hand sewer at Old Town at the time of Robichaud's dis-
charge, testified that before Robichaud's discharge (either on the same day or
just before the plant was closed for the holidays), at about 8 or 8:30 a. m. while
he was standing behind the partition to the men's room, Kagan and Greenleaf
were conversing on the other side of the partition by the soaking tank, that
Kagan said, "We will have to let Robichaud go because he is getting quite active
in the Union," and that Greenleaf replied, "I hate to, because he's a good sewer."
Witherbee testified that he could hear no more because someone turned on the
28 Shorey testified that Robichaud said the shoes called to his attention were as good as
"some of the rest of them ." At another point in his testimony , Shorey said, "When I
showed him these shoes, he admitted they were poor shoes. Right then he said something
with the idea that them was as good as the average or as good as I would get or something
like that." Robichaud testified that when be looked at the shoes he told Shorey that he had
seen worse shoes, and although not purporting to quote himself, he testified "I couldn't see
nothing really wrong with them ; that is, I see worse go through . They were a little one
sided ." And at another place, "I will admit they are not the best of shoes, but I have seen
as bad go through."
28 On cross-examination, Robichaud testified that Shorey said "he had orders to let me
go." Robichaud, on direct examination, quoted Shorey as found in the text above, with no
reference to "orders ." In Shorey 's testimony , he, did not quote himself as using this
expression . I find that the reference to "orders " made by Robichaud in his cross -examina-
tion was the result of a deduction on his part rather than an exact quotation from memory.
l
OLD TOWN SHOE COMPANY 279
blower on the shoe drier. This conversation was denied by Kagan and Greenleaf.
I credit their denials. Even in the absence of their denials, I would not credit
Witherbee's testimony. The latter testified that he did not recognize the voices
but that he stood on his toes and looked over the partition and saw the speakers.
This was proved to be impossible. The driers are started early in the morning,
around 6: 30 o'clock, and run all day. If the parties were in the positions de-
scribed by Witherbee it would have been impossible for him to hear two people
speaking in a Conversational tone of voice while the driers were in operation.
The location between the driers and men's room is used constantly by employees
as a place to smoke and visit while waiting for more work. It is not the kind
of location that one would expect to be selected for such a confidential conversa-
tion as that testified to by Witherbee.
Dorothy Hersom, also a hand sewer at Old Town before the strike, testified
that she and her stepfather worked at a bench near the opposite end of the room
from where Witherbee testified he was when he overhead Greenleaf and Kagan.
Hersom testified that during the forenoon of January 4, 1949, Greenleaf and
Kagan came through the door of the Penobscot plant and stopped to look at a
case of shoes nearby, that she overhead Greenleaf say that "it was too bad to
fire Joe Robichaud," and that Kagan replied, "What can I do when he is for the
Union, bringing in union papers." Before the hearing, her stepfather had suf-
fered a stroke and was unable to testify. The statements which Hersom and
her stepfather gave to the Union and the affidavit which Hersom gave to the
Board's field examiner in April 1949 were introduced into evidence. Although
these statements and affidavit quote Greenleaf and Kagan in a conversation in
the same place, they make no reference therein to the Union or union papers.
On all the evidence I find that the conversation between Kagan and Greenleaf
did not take place as Hersom testified.
Greenleaf testified that his attention had been called to the case of shoes, on
account of which Robichaud was discharged, by Charles Crawford, foreman of
the .making room. Crawford testified that he called Greenleaf's attention to it
after he noticed the poor shoes in it while he was making a regular inspection
of the cases. At this time the shoes had already had the soles stitched on 30
Neither Greenleaf nor Crawford looked at all the shoes (18 pairs) in the case.
Greenleaf testified that he looked at about 9 pairs, that they were all bad,' and
that he "would not say" that so many bad shoes had gone through at one time
before or since. Shorey, on the other hand, testified that he had never had whole
cases that were bad but that he had had part cases within the previous week or
two that were bad, that he had found other cases in which half were bad, and
that he had not always discharged the hand sewer therefor. Crawford, when
first asked how many bad shoes there were in the case that he called to Green-
leaf's attention on that day, testified, "The whole case was bad, what I looked at;
I'll say I looked at a half dozen shoes, and they looked bad to me." The ones
he looked at were all together on the top shelf. It appeared to me that both
Greenleaf and Crawford were unjustifiably attempting to make it appear that
all the shoes in the case were bad when they either did not know this to be a
fact or knew it not to be a fact.
"Greenleaf testified that he did not criticize Crawford for having permitted the bad
shoes to have the soles put on. Shorey testified that practically everyone was an inspector.
81 Later he testified that lie looked at half a dozen pairs and they were all bad so he
concluded that the rest were all bad.
280 DECISIONS OF. NATIONAL . LABOR RELATIONS BOARD
Three pairs of poorly sewn shoes were removed from the case to keep as evi-
dence. This was explained by Greenleaf as being done because at about 2: 30
p. in. on the day of Robichaud's discharge some employees , whose indentity he
could not remember , told him that Robichaud had said of his discharge that he was
not worried and that he would be back . Greenleaf further explained that, not
knowing what Robichaud meant by this, he reported it to Kagan , who in turn
said he did not know what Robichaud meant but that to play safe Greenleaf
should take two or three pairs of the shoes from that case and put them to one
side. Kagan , on the other hand, testified that Greenleaf told him of Robichaud's
discharge about a half hour after it happened and that Greenleaf reported that
Robichaud had said to Shorey, "You didn't fire me for bad work. I'll be back.
. . . Well, you fired me while I was active in the Union." Kagan testified that
he then asked Greenleaf why he had discharged Robichaud and that Green-
leaf had said, "He made a couple of cases that are the rottenest ones I ever
saw." Kagan testified that he told Greenleaf to "keep a few shoes in case it
starts something." "After all," he testified , "they are going to ask us: `Where
are the shoes that are spoiled.' " That afternoon Greenleaf testified , after he had
given his report to Kagan, he told Foreman Crawford to hold a few pairs of
shoes out of the case and let the rest. go through . On cross -examination, Green-
leaf testified that those shoes were sold as seconds . . Old Town keeps no records
of shoes sold as seconds . Crawford testified that when he finds a case with bad
shoes he will put a tag on it, designating the number of, defective shoes together
with the kind of defect and that it is in the packing room that the decision is made
whether or not shoes are to be designated as seconds . He could not remember
whether or not he had marked the case that Robichaud was discharged for mak7
ing. I conclude and find that Greenleaf was not testifying from knowledge when
he testified that the rest of the shoes were sold as seconds , and find no credible.
evidence to prove whether or not they were sold as seconds.
Robichaud 's work had , before the day of his discharge , not been regarded as
below average by Shorey . Although Shorey appeared to be avoiding testifying too
favorably about Robichaud , he. testified on direct examination that Robichaud
was at least average and could be better than average . He testified that he had
critized Robichaud 's work before his discharge but could not remember when,
and he testified that the poorly made shoes . which were saved as evidence were
not of the quality expected from .the average worker nor of the quality that
Robichaud was capable of turning out. On cross -examination Shorey testified
that he tried to keep an eye on every case to see if a great many bad shoes went
through, that more bad shoes of experienced workers than of beginners and of
those who had been warned went through, and that he saw Robichaud 's work and
it went through , "appeared all right."
Robichaud was one of the more experienced workers. He had, on occasions
been given the task of sewing sample shoes , a job assigned only to the better hand
sewers. Louis Casey , a former hand sewer at Old Town , who had acted as fore-
man for the period between March and November 1947, testified that Robichaud
was then one of the six best hand sewers . There were around 80 hand sewers
altogether . Hand sewers who are paid on a piecework basis, always in a hurry,
occasionally get too fast and do "rough " work . There is ample evidence in the
record that most of the hand sewers had work returned to them from time to
time for resewing or for criticism, some of them much more than Robichaud.
Robichaud testified that. he could remember having had only 2 pairs of shoes
returned to him, 1 in 1947 and 1 in 1948. There is evidence that Robichaud had
OLD T'OWAI SHOE COMPANY 281
.shoes brought to him to have his attention called to some fault of.workmanship
but not for resewing . There is no evidence , however, that . Robichaud had .been
warned . that his work was such that he would be discharged if he .did not.im-
.prove it.
Shorey testified that when Greenleaf called his attention to poor work, as
he sometimes did, he would instruct the hand sewer to correct the fault and, "If
I had corrected the same thing on the same shoe at different times, and it kept
coming back to me, I might discharge that man for it, whoever it might be."
This answer suggests that . hand sewers were not discharged . for less than
repetitive poor work . Shorey testified that he once stopped a hand - sewer from
making men 's shoes for quite a while because of poor workmanship , but he did
not discharge him. Greenleaf , himself, testified , "We do not like to discharge
employees , and we don 't till the last resources . When we have a bad shoe here
and there that has shown up and if an operator tries to correct himself, we will
play along with him. But if it keeps showing up bad work and does not ' try to
cooperate , why, the man is discharged ." The Respondent did not attempt" to
show that its reason for discharging Robichaud was consistently poor work.
Shorey testified that Robichaud 's remark that he had seen just as good shoes pass
indicated that Robichaud did not intend to do better work. This would not have
been a fair interpretation of Robichaud 's comment in view of his"admission that
the shoes he looked at were not good.
When an active union employee is discharged for poor work , a question is
raised as to whether his poor work alone was placed in the scale to be weighed
or whether his union activity was added to dip the scale enough to result in, a
decision to discharge . If the scale would not have dropped low enough to call
for a discharge but for the added element of his union activity , the discharge
would have to be attributed to unlawful discrimination . Fault may be found
'with any employee at some time , for none is perfect . But if that employee is
`discharged for that fault when others , who have exhibited as bad or worse
faults, are not discharged , another motive for the , discharge is suggested. When
a foreman who refrains from discharging a hand sewer who does such poor
work consistently that he is taken off of that kind of work , discharges , without
advance warning , a hand sewer who has consistently done average work,,at' a
.time when fault does show up , it brings a discrimination into focus. " When
that focusing shows up the additional element of the known union activity of
the discharged employee , such union activity appears to be a factor in his dis-
charge. Although there is no direct evidence that Greenleaf knew, when he
called Shorey down to see the case of shoes, that the shoes were the work of
Robichaud , there is circumstantial evidence of that fact in Greenleaf 's knowledge
that Robichaud was discharged when the latter stopped ' to ask the reason and
in the fact that Greenleaf told Kagan that he had discharged Robichaud . Records
of which hand sewer worked on a case would have been as available to Greenleaf
as to Shorey . It would have been a simple matter for Greenleaf to watch the
records, wait for a case worked on by Robichaud, and when some poor shoes
showed up , as there was every chance of happening with hand sewers paid on a
piecework basis, causing his discharge . My conclusion that this was done is not
based on a comparison of the treatment of Robichaud with that of merely one
other employee . It is based on all the evidence , including but not limited to
evidence indicating that Old Town normally did not discharge hand sewers for
less . than . repetitive bad work . unless the employee , appeared incapable of
improving or•unless express instructions were violated ; evidence that Greenleaf
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Kagan knew of Robichaud's union- activities and looked upon him as the
principal union protagonist evidence of Kagan's antipathy for Robichaud and
the Union ; evidence of Greenleaf's unsuccessful effort to dissuade Robichaud..
from organizing the plant ; the inconsistencies in the testimony of Greenleaf,
Kagan, Shorey, and Crawford, indicating an effort on the part of one or more of
them to conceal the truth. On all the evidence and my evaluation of the honesty
and reliability of the testimony from my observation of the witnesses, I find that
but for his union activity Robichaud would not have been discharged on January
4, 1949. I find that, by such discharge, Old Town discriminated in regard to his
hire and tenure of employment in violation of Section 8 (a) (3) of the Act.
3. The layoff of Andrew Poirier
Andrew Poirier was employed by Penobscot in the latter part of July 1948 as
an antiquer. Antiquing involves a process of dyeing, treating, and polishing the
leather on shoes by one operation As it is necessary to exercise care in obtaining
an even color and avoid covering stitches, it requires a little practice before one
can do the job well and it requires somewhat longer to acquire speed, necessary
to earn the rate paid .32 I find that the job is one requiring minor skill, but that
such skill can be acquired fast enough so that the Respondents do not bother to
hire persons already skilled for the job.
Poirier took some part in union activities at the time of the union election in
December 1948. Later he was selected as steward for his department. In that
capacity he spoke several times with Superintendent Aloes and once with Kagan
about a grievance concerning poor light.
On April 8, 1949, Poirier was notified that he was laid off. His forelady told
him it was because work was slack. He asked if he was being discharged because
of the Union. She answered that it was not. He then called her attention to
the fact that on the basis of seniority there was a woman named Michaud who
was junior to him. The forelady said that Michaud had worked before.
A few days after his layoff, Poirier was elected temporary president of the
Union at Penobscot and be sat in on bargaining meetings beginning with that of
May 17,1949. At the June 1 meeting Fecteau asked Kagan if Poirier could get his
job back. Kagan said they were slow right then but suggested he come to the
plant a few days later and he would speak to Superintendent Aloes about it.
As suggested, Poirier went to the plant and spoke with Aloes. Aloes called Kagan
who said he was sorry but he could not give Poirier a job at that time.
Poirier was. chairman of the strike committees of both plants during • the
strike. At the end of the strike he made application for reinstatement with the
rest of the strikers. Old Town refused to reinstate Poirier, giving the reason
that Poirier was not an employee when the strike started.
Kagan testified that in making layoffs in unskilled (or minor) operations, the
Respondents lay employees off by seniority, whereas they lay off employees ac-
cording to ability in skilled operations. Antiquing was one of the operations on
which the seniority practice was followed. The Respondents have no practice of
recalling those who have worked on minor operations and have been laid off.
If they happen to apply when they are needed they are reemployed.
At the time Poirier was laid off, another antiquer was also laid off. The girl
mentioned by Poirier as his junior at the. time of the layoff, Modeste Michaud,
32 Kagan testified that it took only half a day to train the operator , but that it took about
'2 weeks to acquire speed. Poirier and another antiquer testified that it took 4 or 5 months
to acquire skill. The Respondents classify antiquing as a nonskilled job.
OLD TOWNI SHOE . COMPANY 283
was first employed on January 4, 1946, and was employed fora few months during
each year thereafter. Albert Weinstein, office manager of both Respondents,
explained that she was absent periodically because of chronic illness and that the
policy in such cases is to let the employees come back at their former seniority.
There was evidence that besides the two antiquers who were laid off, six other
employees were laid off on the same day and many others were laid off during
the latter part of March and the first of April.
On all the evidence, I find that Poirier was not laid off because of his union
membership and activity and, as there was no evidence that work was available
for him on the occasions when he applied for employment, I find that he was not
discriminatorily denied reemployment. As his layoff was not discriminatory,
the Respondents were not obliged to reinstate him at the end of the strike.unless
they had work available for him. It was not shown that they had.
C. Interference, restraint, and coercion
The Old Town.complaint alleged that Old Town interferred with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act by questioning employees regarding their union activities and by
threatening employees with loss of employment if the Union was successful in its
organizational efforts.
The only evidence of the former was Robichaud's testimony that Kagan ques-
tioned him in November 1948 by saying, "I understand you are president of the
Union," and questioning him about his union views. Although Kagan had no
right to question Robichaud about his union activity, he had a right to criticize
Robichaud for interrupting work to pass out cards and to instruct him not to do
so. The pleadings do not allege, and no contention is made, that Kagan laid down
a rule against solicitation which was too broad.. No finding is made that it was.
Although the form of Kagan's sentence concerning Robichaud's being president of
the Union was that of a statement rather than of a question, it was apparently
intended to and did elicit a reply. I find that this was a question and that
Kagan's questioning. constituted interference with rights of employees guaranteed
in Section 7 of the Act 33 Kagan had already been informed of Robichaud's pass-
ing out cards before he called him in to reprove him, so I do not interpret Kagan's
statement in this respect as questioning but merely as.a preliminary statement.
The only evidence that might be argued to support the allegation of a threat
of loss of employment, was Robichaud's testimony that Greenleaf told him at his
home that if the Union came into the plant they might both lose their jobs. I
deduce from Robichaud's testimony, which probably did not quote the exact words
nor all the words that Greenleaf used, that Greenleaf was making an argument
that the effect of the Union in the plant might be added expense which the Old
Town plant could not afford, and, if operations were too expensive, the plant could
not operate and would have to close down. I do not interpret this as a threat.
It is more in the nature of an opinion, which Greenleaf was privileged to ex-
press.94 I find that Old Town did not threaten its employees with loss of employ.
ment if the Union was successful in its organization.
The only allegation of interference, restraint, or coercion in the Penobscot
complaint was that of soliciting employees to return to work during the strike.
sa Standard -Coosa-Thatcher Co., 85 NLRB 1358.
34 Mylan-Sparta Company, Inc., 78 NLRB 1144.
284 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The'evidence supported this allegation. That such conduct constitutes a viola-
tion of Section 8 (a) (1) is now too well settled to require further comment's
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents as set forth in Section III, above, occurring
'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, and have prolonged, labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
As it has been found that the Respondents have engaged in unfair labor
practices, it will be recommended that the Respondents cease and desist there-
from and take certain affirmative action designed to effectuate the policies of
the Act.
I have found that the Respondents violated the Act in refusing to bargain
with the Union during and after the strike, by failing and refusing to reinstate
all strikers upon request, and that Old Town has violated the Act by questioning
Joseph Robichaud about his union activities, and by later discharging him
therefor. I am of the opinion, upon the entire record in this case, that the
commission' in the future of other unfair labor practices may be anticipated
from the Respondents' conduct. in the past. I shall, therefore, recommend that
the'. Respondent cease and desist from in any other manner infringing upon the
rights guaranteed to its employees in Section 7 of the Act.
, The Respondents reinstated some of the strikers beginning on August 16, the
day after the termination of the strike. The complaint has already been
dismissed as to them. Request. for reinstatement was made by the strikers in
three ways : In person, by personal written application, and by blanket request
by the Union. The latter was sufficient to oblige the Respondents to offer
reinstatement to all the strikers who had concertedly ceased working on June
14, 1949. The Respondents have, upon various dates after August 16, either
offered reemployment or actually reemployed a large proportion of the strikers.
Some of the exhibits in evidence, all supplied by the Respondents, show con-
flicting dates of reinstatement or offer thereof as to some employees. Other
employees may, since the hearing, have been offered reinstatement. Rather
than recommending back pay to the reinstated employees by name and to a
specific date in each individual instance, therefore, I shall recommend that the
Respondents make whole each of the strikers who has been reinstated or offered
reinstatement to this former or substantially equivalent position for any loss
suffered, by paying to each a sum of money equal to that which he would normally
have earned as wages between the date of his request for reinstatement and the
offer of the respective Respondent to reinstate him, less his net earnings during
this. period u The names of those employed just before the strike who were
reinstated before the hearing are listed in Appendix B attached hereto.a7
ae Anchor Rome Mills , Inc., 86 NLRB 1120 ; Kansas Milling Company, 86 NLRB 925;
Cincinnati Steel Casting Co., 86 NLRB 592; Olin Industries, ,Inc., 86 NLRB 203; Cathey
L'iimber Company, 86 NLRB 157; Sam 'l Bingham's .on Mfg. Co., 80. NLRB 1612; Rock-'
wood Stove Works, 63 NLRB 1297.
36 Crossett Lumber Company , 8 NLRB 440.
87 I have purposely omitted the names' of those whom the 'evidence showed aot • to be
employees on the date of the strike, because of their earlier separation.
OLD TOWNS SHOE COMPANY 285
Old Town has failed to reinstate or to offer reinstatement to about 12 strikers,
and Penobscot has failed' to reinstate or offer reinstatement to about 39
.strikers. One of these, Georgiana La Plant, an Old Town employee, was
offered and refused a job at Penobscot similar to her former job at Old Town:
An offer by Penobscot, technically, is not one by Old Town. Although in the
instant case there is such a close connection between the two plants that work-
ing in one could easily prove to be substantially equivalent to working in the
other, I believe it is better not to establish a precedent which could be mis-
understood ; so no exception will be made in La Plant's case. Actually there
should be little difference in cost to the Respondent Old Town because, unless
there was good cause for La Plant's rejection of the offer of a job at Penobscot,
her rejection thereof may be deemed to be a wilfully incurred loss and she
would not be entitled to back pay thereafter. This is a matter that can be
worked out in the compliance stage of the case. I shall, therefore, recommend
that Old Town and Penobscot, respectively, offer to each of the employees listed
in Appendix C (Old Town) and D- (Penobscot) reinstatement to his former or
substantially equivalent position", without prejudice to his seniority or other
rights and privileges, if necessary dismissing all replacements hired on or after
June 15, 1949, who were not employees of the respective Respondents on that date.
The evidence shows that the jobs of some of the strikers have been done away
with for business reasons. The evidence does not, however, show that there was
not substantially equivalent employment available for such employees. The
evidence does show that it was the custom when there was no work for an
employee doing one kind of minor operation to transfer him to another minor
operation. The existence or nonexistence of substantially equivalent jobs is
a question that may be solved in the compliance stage of these. proceedings.
The record shows that Carlton Agrell, a Penobscot employee, was in the army
at the time of the hearing. In his case it will be recommended that, upon reap-
plication by said Agrell within ninety (90) days 3' after his discharge from the
United States Army, Penobscot shall then offer him reinstatement to his former
or substantially equivalent employment as herein otherwise provided.
It will further be recommended that the Respondents make whole their
respective employees whose names are listed in Appendices C and D for any
loss they may have suffered as a result of the discrimination against them, by
payment to each of them of a sum of money equal to the amount which he
would normally have earned as wages from the date of the application for
reinstatement. made by hi or on his behalf to the date of the respective Re
spondents' offer of reins tat ment, less his net, earnings during this period.40
As it has been found the the Respondent Old Town discriminated in regard
to the hire and tenure of mployment of Joseph Robichaud, it will be recom-
mended that Old Town reinstate him to his former or substantially equivalent
position 41 without prejudice to his seniority or other rights and privileges and.
'a See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827, 829.
30 See 50 USCA App., Sees. 308 , 352, 357.
40 See footnote 34, .supra. In, the case of Agrell there shall be excluded from . the back-
pay period stated above , the period from the time he became unavailable, .for employment
because of his induction Into the army to a date five ( 5) days after his timely application
for reinstatement after his discharge from the army. There shall also be excluded the
period during which Daigle was unavailable for. employment because of his being in jail.
41 See footnote 38, supra.
2815, DECISIONS OF, NATIONAL- LABOR RELATIONS BOARD
make him whole for any loss he may have-suffered from January 4, 1949, the
date of the discrimination against him, to the date of the said Respondent's offer
of reinstatement, less his net earnings `2 during said period.
It will be further recommended that the complaints be dismissed as to Andrew
Poirier and Maurice Duplissis, whose layoff and non reinstatement, respectively,
have been dealt with above, and also as to the following employees named in the
complaints who, the evidence shows, were not employed by the Respondents at
the commencement of the strike, or were never employed : Dorothery Bushey
(never employed), listed as an Old Town employee; and Alfreda Doucette and
Clara Dubay (both shown to have been terminated on June 9, 1949), Mary Madore
(terminated April 21, 1949), James Pelletier (not employed), Louis Philip
LaMarre (terminated April 22, 1949), Antoinette Lajoie (never employed), Louise
La Belle (never employed), all listed in the complaint as Penobscot employees.
As it has been found that-the Respondents have refused to bargain with the
Union after July 21, 1949, it will be recommended that the Respondents bargain
with the Union on request, and if an agreement is reached, embody such under-
standing in a signed contract.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CoNCLusIons of LAw
1. United Shoe Workers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. All production and maintenance employees at the shoe factory of the Re-
spondent Old Town in Old Town, Maine, including employees in the stitching
department who work in Bangor, Maine, but excluding clerical employees and
supervisors, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
3. All production and maintenance employees of the Respondent Penobscot,
but excluding executives, foremen, office, and clerical employees, guards, pro-
fessional employees and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
4. United Shoe Workers of America, CIO, was on March 31, 1949, and at all
times thereafter has been, the exclusive representative of all the employees in the
appropriate unit described in paragraph 2 of these conclusions for the purposes
of collective bargaining within the meaning of Section 9 (a) of the Act.
5. United Shoe Workers of America, CIO, was on December 17, 1948, and at
all times thereafter has been, the exclusive representative of all the employees
in the appropriate unit described in paragraph 3 of these conclusions for the
purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
6. By refusing on and after July 21, 1949, and at all times thereafter to bar-
gain collectively with United Shoe Workers of America, CIO, as the exclusive
representative of their employees in the above-described appropriate units, the
Respondents have engaged in, and are engaging in, unfair labor practices, within
the meaning of Section 8 (a) (5) of the Act.
7. By discriminating in regard to the hire and tenure of employment of Joseph
Robichaud and of the employees listed in Appendices B, C, and D, thereby dis-
42 See footnote 36, supra.
OLD TOWNS SHOE COMPANY 287'
couraging membership in a labor organization , the Respondents have engaged
in, and are engaging in, unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
-8. By the foregoing unfair labor practices and by interfering with, restrain-
ing, and coercing their employees in the exercise of the rights guaranteed in
Section 7 of the Act , the Respondents have engaged in and are engaging in unfar
labor practices within the meaning of Section 8 ( a) (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. The Respondents have not discriminatedin regard to the hire and tenure
of employment of Andrew Poirier, Maurice Duplissis , Dorothy Bushey , Alfreda
Doucette , Clara Dubay, Mary Madore, James Pelletier , Louis Philip LaMarre,
Antoinette Lajoie, and Louise LaBelle.
[Recommended Order omitted from publication in this volume.]