Russell Heel Co.

National Labor Relations Board - Board Decisions

May 21, 1941

31 N.L.R.B. 1179 (N.L.R.B. 1941)

In the Matter of SERVICE WOOD HEEL COMPANY, INC., DOING BUSINESS
UNDER STYLE AND TRADE NAME OF RUSSELL HEEL COMPANY and
WOOD HEEL TURNERS LOCAL 12A, UNITED SHOE WORKERS OF
AMERICA (C. I. 0. )
Case No. C-1833 .-Decided May , 01, 1941
Jurisdiction : wood heel manufacturing industry.
Unfair Labor Practices '
Company-Dominated Union: inside union which had its inception in employer
action prior to the enactment date of Act continued to operate thereafter under
'employer domination and control-organization held not to have purged itself
of employer-domination and control by resignation of employer representa-
tives after validation of Act where it continued to function in all other respects
as before with the continued support and assistance of the employer and
without change in its organization or activities-illegal assistance and support
as result of the manner in which an "insurance plan" was instigated and
administered.
Collective Bargaining: designation of majority by membership cards authorizing
union to act as bargaining agent-refusal to meet and negotiate : employer
who retained sole authority to recognize and deal with union, delegated that
'task to his attorney who admittedly had no authority to bargain with the
union.
Remedial Orders : employer ordered to bargain collectively; order requiring
disestablishment,of dominated organization not to affect group insurance plan
except in so far as it will be necessary to modify plan in light of said order.
Mr. Benjamin F. Gordon, for the Board.
Mr. Walter M. Espovich, of Haverhill, Mass., for the respondent.
Mr. John J. Ryan, Jr., of Haverhill', Mass., for the Association.
Mr. Theodore W. Kh.eel, of counsel to the Board.
DECISION
F AND
ORDER,
STATEMENT OF THE CASE
Upon charges and amended charges 1 duly filed by Wood Heel
Turners Local 12A, United Shoe Workers of America (C. 1. 0.), herein
called the Union, the National Labor Relations Board, herein called
1 The original charge and the amended chIrges were received by the Board on the follow-
ing dates, respectively : March 16, March 28, April 24, July 26, and November 22, 1940.
31 N. L. R. B., No. 179.
1179
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board, issued its complaint dated November 21, 1940, against
Service Wood Heel Company, Inc., doing business under style and
trade name of Russell Heel Company, herein called the respondent,
alleging that -the respondent had engaged in and was engaging in un-
fair labor practices affecting commerce, within the meaning of Section
8 (1), (2), and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the com-
plaint, accompanied by notices of hearing, were duly served on the
respondent, the Union, and Russell Employees Association, herein
called the Association.
Concerning the unfair labor practices, the complaint alleged in
substance (a) that the respondent at its Plaistow, New Hampshire,
plant, dominated and interfered with the formation and administra-
tion of the Association and contributed support thereto; and (b) that
the respondent at its Malden, Massachusetts, plant on March 16, April
6, and June 12, 1940, and at all times between said dates and thereafter,
refused to bargain collectively with the Union, although the Union
at all such, times was the exclusive representative of the respondent's
employees in a unit appropriate for the purposes of collective bar-
gaining; and (c) that the respondent, by such acts, by questioning
employees as to membership in the Union, by making statements to
discourage membership in the Union, and by other acts, 'interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On November 29, 1940, the respondent filed its answer in which it
denied that it had engaged in the unfair labor practices alleged in the
complaint.
Pursuant to notice, a hearing was held in Haverhill, Massachusetts,
from January 9 through January 11, 1941, before James C. Batten,
the Trial Examiner duly designated by the Chief Trial Examiner. At
the commencement of the hearing, the Association moved for leave to
intervene in the proceeding. , The Trial Examiner granted the motion.
The Board, the respondent, and the Association were represented by
counsel and all participated in the hearing. Full opportunity to be
heard, 'to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. At the close of
the Board's case, the respondent moved to dismiss the entire complaint
and the Association moved to dismiss the complaint in so far as it
alleged that the respondent dominated and interfered with the forma-
tion. and administration of, and contributed support to, the Associa-
tion. These motions were denied by the Trial Examiner. The above
motions"by the respondent and the Association were 'renewed at the
close of the hearing and the Trial Examiner reserved decision thereon.
During the hearing the respondent moved to strike certain testimony
SERVICE WOOD HEEL COMPANY, INC. 1181
by Fred G. Hutchins, an employee, with respect to in alleged anti-
union statement made to him by Arthur B. Ball, superintendent at the
Malden plant. The Trial Examiner reserved ruling on the motion.
At the close of the hearing, counsel for the respondent moved, in sub
stance, to dismiss the allegations of the complaint concerning a group
insurance plan in effect at the respondent's Plaistow plant. Decision
thereon was reserved by the Trial Examiner. At the close of the hear-
ing, counsel for the Board moved to conform the pleadings to the
proof. The motion was granted. During the course of the hearing,
the Trial Examiner, made various rulings on other motions and on
objections to the admission of evidence. The Board has reviewed
these rulings and finds that no prejudicial errors were made. The
rulings are hereby affirmed.
Oh February 25, 1941, the Trial Examiner filed his Intermediate
Report, finding that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce within the meaning
of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act,
and recommending that the respondent cease and desist therefrom
and take certain specified affirmative action. Accordingly, the Trial
Examiner denied the respondent's motion to dismiss the entire com-
plaint and the Association's motion, to dismiss the allegations per-
taining to it, on which motions he had reserved rulings • during the
hearing. However, he granted the respondent's motion to strike the
testimony of Fred G. Hutchins relating to an alleged anti-union state-
ment made to him by Arthur B. Ball, superintendent at the Malden
plant, and its motion to dismiss the allegations of the complaint con-
cerning a group insurance plan in effect, at its Plaistow plant, on
which motions he had also reserved rulings during the hearing. These
rulings, with the exception of the ruling regarding the group insur-
ance plan, are hereby affirmed. The group insurance plan is
considered below. ,
On March 26, 1941, the respondent filed exceptions to the Inter-
mediate Report. None of the parties requested oral argument, or
filed briefs with the Board. The, Board has considered the excep-
tions to the Intermediate Report and, in so far as they are inconsistent
with the findings, conclusions, and order set forth below, finds them
to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Massachusetts corporation engaged in the
manufacture' ands sale of wood heels. • Its operations are conducted
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at three plants located, respectively , at Plaistow , New Hampshire;
and Malden and Lawrence, Massachusetts . The Plaistow and Malden
plants, at which the unfair labor practices occurred , are turning plants
and accordingly produce unfinished wood heel blocks, while the
Lawrence plant is not only a turning plant, but also a finishing plant,
and produces wood heels in a finished condition.
During the fiscal year 1940, the respondent purchased for use' at
its Plaistow plant approximately 1,500,000 feet of lumber , valued at
about $75,000 , and purchased for use at its Malden plant approxi-
mately 800 ,000 feet of lumber, at a 'cost of about $40,000. All such
lumber was purchased by the respondent at points outside the State
of New Hampshire and the Commonwealth of Massachusetts and
transported by it in interstate commerce to the Plaistow and Malden
plants. I
During the same year, the respondent produced at its Plaistow
plant approximately 600,000 dozen wood heel blocks, valued at about
$200,000, and at its Malden plant approximately 200,000 dozen wood
heel blocks with a value of about $100 ,000. All the wood heel blocks
produced at the Plaistow plant were shipped by the respondent to its
plant at Lawrence , Massachusetts , while the wood heel blocks pro-
duced at the Malden plant were shipped by the respondent to various
points in Massachusetts , including the respondent 's Lawrence plant.
In addition , during 1940 , the respondent purchased for use at its
Lawrence plant raw material valued at approximately $350,000, of
which $250 ,000 represented materials purchased by the respondent
outside the Commonwealth of Massachusetts and transported to the
Lawrence plant. In the same year, the respondent produced at its
Lawrence plant wood heels valued at $850,000 , about 50 per cent of
which products were sold and transported to customers outside the,
Commonwealth of Massachusetts.
The Plaistow and Malden plants are under the management of
Robert H. Goldbaum, the respondent 's treasurer , who, together with
his wife, May A . Goldbaum , owns 50 per cent of the stock of the
respondent . Goldbaum has been engaged in the wood heel business,
since 1927 , at which time he owned 25 per cent of the stock of Fashion
Wood Heel Corporation . This company was then engaged in making
wood heels at Amesbury , Massachusetts . In 1929, Goldbaum acquired
all the stock of the above -named corporation . Subsequently , in 1933,
Fashion Wood Heel Corporation sold its turning room operations to
Russell Heel Company, a Massachusetts corporation , of which Gold-
baum was the sole stockholder . Thereafter in November 1935, these
operations were moved from Amesbury to the present location at
Plaistow . There they were conducted by the Russell Heel Company
until 1937 , at which time the respondent was organized and Russell
,SERVICE WOOD HEEL COMPANY, INC. 1183
Heel Company transferred the' ownership of the Plaistow plant to the
respondent. During the entire period from 1929 to the date of the hear-
ing, Goldbaum has been the "controlling supervisor or director" of
first the Amesbury and later the Plaistow plant, and, in addition, the
employee personnel, including the supervisory staff connected with the
turning room operations, continued without substantial change during
such period. Likewise, in 1937, the respondent purchased the,Malden
plant from the Gregory-Reed Shoe Company which is also under the
management and supervision of Goldbaum.
The respondent admitted at the hearing that it is engaged in inter-
state commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Wood Heel Turners Local 12A, United Shoe Workers of America,
is a labor organization affiliated with the 'Congress of Industrial
Organizations, admitting to membership employees of the respondent
engaged in the manufacture of wood heels.
Russell Employees Association is a non-affiliated labor organization,
admitting to membership all the employees working in the respond-
ent's plant at Plaistow, New Hampshire.
III. THE UNFAIR LABOR PRACTICES
A. Interference with, and domination and support
of the Association
1. History of Association; the respondent's
relations with it
Prior to 1933, a number of the employees at the Amesbury plant
were members of a labor organization called the Shoe Workers Pro-
tective Union. In 1933 the Shoe Workers Protective Union called a
strike at the Amesbury plant which lasted for several weeks.
After the employees had returned to work at the end of the strike, a
number of employees, including Joseph Francis, George Ayer, and
Joseph Dauphinais, Jr., discussed the advisability of organizing an
independent union during the months of January, February, and
March 1934.' Ayer stated at the hearing that " . . . we wanted to
3 The Association has had a continuous existence from on or about February 1934 to date.
Consequently , although the employer 's conduct occurring prior to July 5, 1935 , the effective
date of the Act, does not constitute unfair labor practices , such conduct aids in determining
the significance of the employer 's acts occurring after the effective date of the Act A7a-
ttional Labor Relations Board v. Pennsylvania Greyhound Lines, et al ., 303 U. S . 261, rev g
91 F. (2d ) 178 (C. C. A. 3 ) and enf 'g Matter of Pennsylvania Greyhound Lines , Inc, et al.,
and Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway,
and Motor Coach Employees of America, 1 N. L. R. B. 1.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
start one of our own, having no particular interest in unions, and we
spent considerable time talking it over." There were several discus-
sions by these three persons with one another and also other employees
during the noon hour.
At about the same time George Ayer and Joseph Francis talked
with Goldbaum about the matter of forming an independent union.
Goldbaum told them that an association would be a good thing for all
of them, and advised them that he would • obtain some information
about the formation of employee associations and report back to them.
Accordingly, Goldbaum interviewed an unidentified person connected
with the Milchen Shoe Company of Lawrence, Massachusetts, and
found that a Mr. Rooney was president of an independent association
in that plant. Goldbaum invited Rooney to come over to Amesbury
and speak to the respondent's employees, and he agreed to do so. Soon
thereafter, a meeting was held in the turning room of the plant and,
Goldbaum introduced Rooney, advising the employees that Rooney
had something to say that would interest them. Rooney then described
the unaffiliated union at the Milchen Shoe Company plant. It ap-
pears from the testimony that the employees were not satisfied with
Rooney's suggestions and proceeded, without his assistance, to form
an organization of their own.
Accordingly, a number of employees began to hold meetings to
discuss the formation of an inside organization. Goldbaum attended
one of the first meetings of the group and discussed the formation of
an association with the employees. Also, at one of the early meetings,
,Goldbaum suggested the employment of an attorney, Walter M. Espo-
vich, to draw up the bylaws for the Association. Espovich was then
employed as attornery for- the respondent and this fact was known
to the members of the Association. Subsequently, on March 9, 1934,
Goldbaum appeared at a meeting of the Association and introduced
Espovich. It was then agreed that Espovich should draw up a set
of bylaws and present them to the Association, and Goldbaum con-
tributed $50 to the Association for the purpose of paying Espovich's
fee. After the preparation of the bylaws, Espovich presented them
to the Association, and they were adopted. He did not again
represent the Association.
Except on one or two occasions, all meetings of the Association,
while the plant was located at Amesbury, were held in the turning
room. On at least one occasion, the power was shut off at the Ames-
bury plant so that the night shift could attend a meeting of the
Association. After the plant was moved to Plaistow in 1935, meetings
continued to be held in the plant, and at the time of the hearing were
being held in the shipping room of such plant. In addition, from the
beginning the board of directors and the grievance committee have
SERVICE WOOD HEEL COMPANY, IN C. 1185
met and continue to meet in the plant, and, on occasion, on company
time. When such meetings are held during working hours no de-
ductions are made from the pay of the participants for the time lost
in attending, such meetings. -
From the beginning the dues for the Association were and continue
to be collected every week in Foreman Bishop's office, where a repre-
sentative of the Association stations himself at the time clock and
collects the dues as employees punch out, after receiving their pay.
Shortly after the organization 'of the Association, Goldbaum was
made an honorary life member, attending many of its meetings and
participating in its activities until he also resigned. On one occasion
on July 30, 1934, Goldbaum was appointed a committee of one to
arrange for opening a bank account for the Association. On several
occasions, Goldbaum was called upon by the chairman of the Associa-
tion meeting to explain to new members the purpose of the Association.
Beginning in 1934, the Association has been permitted by Goldbaum
to collect a fee from the lunch concessionaire in the plant for such
concession.
In August or September 1936, the respondent and the Associa-
tion entered into a plan for group accident and health insurance
with The Travelers Insurance Company. Greenbaum testified that
an insurance agent who handled "some" of his insurance business
first suggested this group insurance plan to him and indicated how
the Association "would fit in with the mechanics" of handling this
plant. Greenbaum, in turn, advised the agent to take the matter
up with the Association; eventually an arrangement satisfactory
to the respondent and the Association was worked out. Under this
arrangement, the Association collected 30 cents in dues each week
and paid over 24 cents of this amount to the respondent. The re-
spondent then added an agreed upon sum and paid the premiums
to the insurance company. The respondent contended, and it was
undenied, that employees were not required to belong to the Associa-
tion in order to qualify for the benefits of the plan. At the hear-
ing, however, Greenbaum was asked if any employees covered by the
plan were not members of the Association. He replied : "I don't
know." He was then asked to state the amount the respondent had
paid in premiums since the inception of the plan and testified as
follows : "The total cost of the premium to date has been $4,259.10,
of which there was received from the Association as its part $3,353.36,
leaving a balance of $905.74, which represents the sum of money con-
tributed by the Russell Heel Company." Since the contributions
of the respondent and the Association equal the amount of premiums
paid under the plan, it would follow that the Association and its
members have been the only users of the plan. And at least one
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee believed that membership in the Association was necessary
for 'participation in the plan for he wrote to a representative of the
Association to advise that "I am not coming back [to work] but I
still want to belong to the Russell Wood Heel Association" and
inquired "Does it cover my insurance?"
Harry Bishop, a foreman, joined the Association in 1934, and
continued as a paid-up member until April 1937.' During this period
he took an active part in the Association and on several occasions
during that period served on committees conducting Association af-
fairs. Fred Cust, another foreman, became a member of the Associa-
tion in December 1935 and continued his membership until April
1937.
Goldbaum, Cust, and Bishop resigned from the Association in
April 1937, and the minutes of the meeting indicate that their resig-
nation was a 'result of the Supreme Court decisions upholding the
constitutionality of the Act.3 The minutes of the meeting of June
28, 1937, discloses that the Association accepted the recommendation
of the grievance board that all the financial aid from Goldbaum from
the time of the passage of the Act be returned. However, nothing
was done by the Association to carry out this motion.
The association, which was formally organized in March 1934,
continued to function in the Amesbury plant until November 1935
when the plant was moved with substantially the same personnel, to
Plaistow, New Hampshire. The record clearly shows that after the
transfer, no change was made in the organization, membership, and
activities of the Association and that it continued to function in
the same manner after such removal as before.
Also, Murray Barton, an officer of the Association, testified that
he knew of no change in the operations of the Association after the
validation of the Act in 1937, other than the resignation of Gold-
baum, Bishop, and Cust. The evidence clearly indicates and we
find that the only change made in the Association after the Supreme
Court decisions of April 12, 1937, was the resignation of these in-
dividuals. Otherwise the Association continued to function in all
material respects after that date as it had since its inception in 1934.
As set forth in Section I above, the respondent was incorporated in
1937 and at that time acquired ownership of the Plaistow plant from
Russell Heel Company. Managerial control remained in Goldbaum,
however, and the supervisory and employee personnel of the plant
remained unchanged. Accordingly, the record shows that the rela-
tions between the respondent and the Association were the same as
those which had existed between its predecessor, Russell Heel Com-
3 Yational Labor Relations Board v. Jones & Laughlin Steel Corp , 301 U. S. 1, and com-
panion cases.
SERVICE , WOOD HEEL COMPANY, INC. 1187
pany, and the Association , the respondent merely assuming the posi-
tion of the Russell Heel Company with relation to the Association.
The Association continued to operate under the salve name , with the
same membership and organization as before . It continued to meet
on company property , to engage in activities on company time and
property , and to receive financial aid in the form of contributions
from Goldbaum for outings and other activities . The respondent
continued to accord it recognition , and to meet with its grievance
committee and discuss grievances with it. I
In December 1938 a paper was prepared - by the Association and all
members were asked by, the officers of the Association to sign. The
paper contained a pledge ,in the form of the oath to continue member-
ship in the Association. The signatures to the petition were obtained
by posting or passing the petition around the plant.
Although presenting a number of "grievances " to the employer
from time to time, the Association bas-never sought or obtained a
collective bargaining agreement.
2. Conclusions regarding the Association
-It is plain that the Association had its inception in employer action
and has continued to operate under employer domination and control.
Goldbaum, the managing director of the respondent and its prede-
cessors, assisted in the formation of the Association, selected the
attorney to draw the bylaws, and furnished the necessary funds for
the payment of the attorney. When the Association was successfully
launched, Goldbaum immediately become an honorary life member.
Bishop and Cust, foremen , also became members of the Association
at that time and attended its meetings regularly. During its entire
existence Association meetings and other activities of the Association
have been conducted on company property . In 1936, when an insur-
ance agent indicated to Goldbaum how the Association "would' fit
in with the mechanics " of handling a group insurance plan, he im-
mediately referred the agent to the Association and eventually en-
tered into an arrangement with the Association whereby it turned
over the major portion of the dues it collected to the respondent; the
respondent , in turn, added a substantial sum and paid the premiums
of the group insurance plan. While the plan did not specifically limit
participation to members of the Association , in fact all employees
covered by the plan were members of the Association. We disagree
with the Trial Examiner and we find that the Association was il-
legally assisted and supported by the respondent as a result of the
manner in which the plan was initiated and subsequently administered.
Upon passage of the Act in 1935 no change was made in membership
or operation of the Association , and it continued to be subject to
441843-42-vol. 31-76
1188 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same employer' restraint, control, and support as before, constitut-
ing a continuing obstacle to genuine collective bargaining and self-
organization among the employees. In 1937 when the Supreme Court
validated the Act, Goldbaum, Bishop, and Cust resigned from the
Association. Otherwise, the Association continued as theretofore,
and the serious handicap to self-organization and collective bargain-
ing resultant from the employer's domination continued.
Nor was there any change in the relationship with the Association
when the respondent acquired ownership of the plant from Russell
Heel Company in 1937. Under the continuing management of Gold-
baum, who never relinquished control of the plant and of labor
relations during the existence of the Association, the respondent, as
pointed out above, continued the domination and control exercised
by its predecessor over the Association, and the Association continued
to function as an instrumentality of the respondent as it had previ-
ously functioned as an instrumentality of the Russell Heel Company,
its predecessor 4 _
As the Trial Examiner reported, the attorney for the Association
stated in oral argument before him that there was no controversy
concerning the formation and administration of the Association,
that the only question involved was whether, as a legal matter, the
Association could and did purge itself of the employer domination
and control which existed prior to the resignation of thel employer
representatives. It is evident that the Association did not purge
itself of such domination. Although Goldbaum and other super-
visors resigned in 1937 and ceased their active participation in the
affairs of the Association, the latter continued to function in all
other respects as before, with the continued support and assistance
of the employer and without other changes in its organization,
membership, or activities. Under such circumstances, it is plain
that the effects of the employer's domination of the Association over
a period of several years have not been dissipated and that the
Association has continued to operate as a bar to the freedom of self-
organization guaranteed by the Act.5
See National Labor Relations Board v Kiddie Kover Manufacturing Company, 105 F.
(2d) 179 (C. C A. 6), enf'g Matter of Arthur L. Colten, at at, doing business as Kiddie
Kover Manufacturing Company and Amalgamated Clothing Workers of America, 6 N. L.
R. B 355, in which the Court said :
It is the employing industry that is sought to be regulated and brought within the
corrective and remedial provisions of the Act in the interest of industrial peace.
See also Matter of Keystone Freight Lines and International Brotherhood of Teamsters,
Chauffeurs, Stablemen and Helpers, Local 523, 24 N L R B 1153
i National Labor Relations Board v. Newport News Shipbuilding and Dry Dock Company,
308 U. S. 241, rev'g 101 F. (2d) 841 (C. C. A 4) and enf'g Matter of Newport News Ship-
building & Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers
of America, 8 N. L. It. B. 866; National Labor Relations Board v. Link-Belt Company, et at.,
decided by the Supreme Court on January 6, 1941, rev'g 110 F. (2d) 506 (C. C. A. 7), and
enf'g Matter of Link-Belt Company and Lodge 1604 of Amalgamated Association of Iron,
SERVICE WOOD HEEL COMPANY, INC. 1189
We find that the respondent has dominated, and interfered with
the administration` of the Association, and contributed financial and
other support to it; and that by these acts, the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
B. The refusal to bargain
1. The appropriate unit
The Trial Examiner concluded in his Intermediate Report, as
claimed by the Union, that the production employees of the respondent
in its Malden plant, excluding executives, supervisory employees,
clerical employees, yard employees, the janitor and clean-up man, the
repairman, and the sample maker, constitute a unit appropriate for
the purposes of collective bargaining. He also ruled that Louis
Daginais, who was not working in March 1940 because of illness, and
William Cynker, who was out with an injured hand, should be, since
they were regular employees temporarily on leave of absence, included
within the appropriate- unit. The respondent has not excepted to_
any of these findings.
We have examined the evidence in the record and find, as did
the Trial Examiner, that the production employees of the respondent
in its Malden plant, excluding executives, supervisory employees,
clerical employees, yard employees, the janitor and, clean-up man,
the repairman, and the sample maker, at all times material herein
constituted and now constitute a unit appropriate for the purposes
of collective bargaining with respect to the rates of pay, wages, hours
of employment, and other conditions of employment, and that such
a unit insures to the employees of the respondent the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in'the appropriate unit
At the hearing, counsel for the Board introduced in evidence a
list, prepared by the respondent, containing the names of the em-
ployees, excluding supervisory and clerical employees, employed at
the Malden plant at the time of the alleged refusal to bargain.
Steel and Tin Workers of North America, through the Steel Workers Organizing Committee
affiliated with the Committee for Industrial Organization , 12 N L R. B 854, Westinghouse
Electric & Manufacturing Companay v National Labor Relations Board , decided by the
Supreme Court on March 10, 1941, aff 'g 112 F. ( 2d) 657 (C. C A 2), enf'g as mod Matter
of Westinghouse Electric & Manufacturing Company and United Electrical Radio & Machine
Workers of America, Local # 410, 18 N L R B. 300; see International Association of
Machinists, Tool and Die Makers Lodge No. 35, etc, v National Labor Relations Board,
decided by the Supreme Court on November 12, 1940 , aff'g 110 F. ( 2d) 29 (C. A for D C.),
enf'g Matter of The Serriclc Corporation and International Union, United Automobile Work-
ers of America , Local 459 , 8 N. L R B 621.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the list, there were 67 persons employed at the plant
on March 1, 1940.
This number included six employees listed as lumber helpers, or
yard men. The Union- also claimed that Alfred Chadwick , Ernest
Bourke, and Thomas Ryan, three other employees classified as lumber
helpers are , in fact, production employees. Ball , the respondent's
superintendent , testified, however, that - all the lumber helpers, or yard
men, worked on machines at times, but that unless they were perma-
nently assigned to production work, they remained on an hourly
rate and were not regarded as production employees . Consequently,
we find that the employees listed as lumber helpers are yard em-
ployees and , accordingly excluded from the appropriate unit' set forth
above.
The list also contains the names of Constantine , sample maker,
Savary, janitor and clean -up man, and Skinner , repairman , who, as
found above , are not within the appropriate unit. On the other
hand, it does ' not contain the names of Cynker and Daginais, who
are included in said unit.
Consequently , with the exclusions and additions enumerated . above,
it appears that on March 1, 1940, there were 60 employees in the
appropriate unit. At the hearing , 36 cards were received in evi-
dence, signed by employees authorizing the Union to act as their
bargaining agent. All these cards were signed during the latter part
of February 1940, and their authenticity was not questioned by the
respondent . Three of these cards were signed by Chadwick , Bourke,
and Ryan, who , as set forth above, are not in the appropriate unit.
The remaining 33 employees , however, are in such appropriate unit.
Consequently , it is clear that on March 1, 1940, the Union represented
a majority of the employees in the appropriate unit found above.
Between March 1 and 15, 1940, there was a decline in employment in
the respondent 's Malden plant, which, in so far as the record shows,
was due to business reasons. In April 1940, employment began to
increase , but had not reached the March 1 figure on April 5. A fur-
ther comparison of the authorization cards with the number of
employees in the appropriate units actually working on March 15
and April 5 shows that the Union continued to represent a majority
of the employees in the appropriate unit who were working on those
dates. And there is no evidence that the Union lost its majority at
any time - thereafter. _
We find that on March 1, 1940 , and at all times thereafter, the
Union was . the duly designated representative of a majority of
employees in an appropriate .unit, and by virtue of Section 9 (a) of
the Act, was the exclusive representative of all the employees in
said unit for the purpose of collective bargaining.
0
SERVICE WOOD HEEL COMPANY, INC. 11.91
3. The refusal to bargain collectively , -
The Union began to organize the respondent's Malden employees
in about February 1940. Its efforts proved successful, and after
obtaining a majority of the respondent's employees at the Malden
plant, the Union attempted-to secure recognition from the respondent
preparatory to collective bargaining. Sometime in the middle of
March 1940, John Ring, business agent of the Union, accompanied
by Fred Hutchins, a union member, went to the office of Espovich,
attorney for the respondent. Ring told Hutchins that they were
"supposed" to meet Goldbaum there. When they arrived at Es-
povich's office, Ring asked if Goldbaum was going to be present.
Thereupon Espovich stated that he could not "get Goldbaum to
come down" to the meeting. Ring then asked, Espovich if he had
authority to deal with the Union. Espovich at first stated that he
was in a position to deal with the Union but later admitted that he
could make no "settlement" with the Union and would have to refer
the matter back to Goldbaum. Ring then told Espovich that there
was no use trying to do business with him, and the conference ended.
About 2 weeks later, Ring again went to Espovich's office. This
time he was accompanied by Hutchins and also by Leonard Quested,
secretary of the Unions Before the conference, Ring told Hutchins
that he had seen Espovich during the preceding week, and that Es-
povich had stated that he "might be able to get Mr. Goldbaum down
there." When they arrived, however, Espovich again -stated that
Goldbaum had refused to come, stating that Goldbaum questioned
the Union's majority. Ring replied that the Union had a majority,
whereupon Espovich asked Ring to .leave proof of such majority
"so that he could check with the pay roll." Ring then inquired if
Espovich had the authority to deal without Goldbaum, and when
Espovich replied that he had no such authority, Ring stated that
since Espovich "could not bargain with us or give us any guarantee
that Mr. Goldbaum would bargain-that he did not see the necessity
of producing proof of a majority." Sometime during the confer-
ence, Hutchins stated that if necessary the Union was prepared to
enter into an election to prove its majority, and asked if Goldbaum
was "trying to force an election." Espovich did not reply. After
the above conversation, Espovich stated that he was "very busy and
wanted to get away from the office," and that he "washed his hands
of the case entirely and would let' Mr. Goldbaum do what he wanted."
8 Hutchins testified that Quested was present at the first rather than the second meeting.
It is clear from all the evidence , however , that Quested attended the second meeting.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The last conference concerning recognition was held 'on April 4,
1940. This conference was also held in Espovich's office and was
attended by Espovich, Ring, and Sidney Grant, attorney for the
Union. 'At this conference Ring asked if Espovich had any news
for him about the respondent, and Espovich replied, "Well, Johnny,
I haven't any good news for you. I tallied with. the company, and
they are not going to bargain, with or deal with or have anything
to do with you anymore. The only thing I can say is, you do any-
thing you want in the Labor Board because you can't get anywhere
with the company. That is the way it is."
The above facts concerning the attempts of the Union to secure
recognition were not controverted by the respondent during the hear-
ing. Nor did the respondent except to the similar findings contained
in the Intermediate Report. In addition, Goldbaum admitted during
the hearing that he had refused to meet with the Union. ' Moreover,
he also admitted that lie had. always conferred with the Association
when this union requested to meet with him, When asked at the hear-
ing to explain why he had accorded the Union different treatment than
the Association, he was unable to give any reason "except that I was
more familiar with the Association." Instead of himself, Goldbaum
testified, he,authorized Espovich to meet with the Union and obtain
its proof of majority. He admitted, however, that any evidence Espo-
vich obtained as to the Union's majority would have had to be first
submitted to him,`and that Espovich had no authority to recognize
the Union without consultation with him. Goldbaum also admitted
that he had been requested to attend a conference with the Board's
Regional Director concerning theUnion's charge of refusal to bargain
but had refused because Espovich had advised him that the Union
had failed to establish a majority and that nothing could be gained by
.going to the Regional Director's office. Goldbaum also testified that
the only proof that would have "satisfied" him as to the Union's ma-
jority would have -been a "bona fide" election.
On 'the basis of the above facts and the entire record, it is plain
that the respondent has refused to bargain collectively with the Union.
Goldbaum, although retaining for himself the sole authority to rec-
ognize and deal with the Union, consistently refused to meet with its
representatives, delegating that task to Espovich, his attorney, who
had no authority to bargain with the Union, accord it recognition, or
even to determine whether or not it represented a majority of the re-
spondent's employees. Nor could Goldbaum advance any valid reason
for his refusal to meet with the Union when he had, on the other hand,
always honored .the Association's requests for conferences. Instead of
meeting with the Union himself, as requested, he entrusted Espovich
SERVICE WOOD HEEL COMPANY, INC. 1193
with the limited commission of receiving evidence of the Union's
majority and reporting to him on such evidence. Espovich, admit-
tedly, had no authority to bargain with the Union nor did he give
reasonable assurance that Goldbaum would bargain with the Union,
if it represented a majority, after it had revealed to the respondent
its membership lists. Finally, Espovich ended negotiations with the
Union by reporting that he had "talked with the company, and they
are not going to bargain with or deal with or have anything to do with
you anymore. The only thing I can say is you do anything you want
in the Labor Board because you can't get anywhere with the company.
That is the way it is."
We find that the respondent on or about March 16, 1940, and at all
times thereafter, refused to bargain collectively with the Union as
the exclusive representative of its employees in an appropriate unit
and that the respondent has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, oc-
curring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
We have found that the respondent has engaged in certain unfair
labor practices. Accordingly, we shall order the respondent to cease
and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed financial and other support to it. In order to effectuate
the policies of the Act and free the employees of the respondent from
the effect of such unfair labor practices, which constitute a con-
tinuing obstacle to the exercise by the employees of the rights guaran-
teed them in the Act, we shall order the respondent to withdraw
recognition from and completely disestablish the Association as a rep-
resentative of-the respondent's employees for the purpose of collective
bargaining.7
'Our order , it should be noted, does not affect the group insurance plan described above
except insofar as it will be necessary to modify the operation of the plan in the light of our
order disestablishing the Association as a collective bargaining representative.
1
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that on about March 16, 1940, and at all times there-
after, the respondent has refused to bargain collectively with the
Union. We shall order the respondent to cease and desist from such
unfair labor practice and upon request bargain collectively with the
Union as the exclusive bargaining representative of its employees in
the unit herein found to be appropriate.
The respondent by varying methods has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7. This course of conduct discloses a purpose to defeat
self-organization and its objects. Because of the respondent's unlaw-
ful conduct and its underlying purpose, we are convinced that the
unfair labor practices found are persuasively related to the other
unfair labor practices proscribed and that danger of their commission
in the future is to be anticipated from the course of the respondent's
conduct in the pasts The preventive purpose of the Act will be
thwarted unless our order is coextensive with the threat. In order
therefore to make effective the interdependent guarantees of Section
7, to prevent a recurrence of unfair labor practices, and thereby to
minimize industrial strife which burdens and obstructs commerce,
and thus effectuate the policies of the Act, we will order the respond-
ent to cease and desist from in any manner infringing the rights
guaranteed in Section 7 of the Act. For the foregoing reasons we
shall also order that the respondent post appropriate notices in all
its plants.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Wood Heel Turners Local 12A, United Shoe Workers of Amer-
ica, affiliated with the Congress of Industrial Organizations, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. Russell Employees Association is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By dominating and interfering with the administration of Russell
Employees Association at the respondent's Plaistow plant, and by con-
tributing financial and other support to said organization, the respond=
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8'(2) of the Act.
4. The production employees of the respondent at its Malden plant,
excluding executives, supervisory employees, clerical employees, yard -
,employees, the janitor and clean-up man, the repairman,`and the sam-
ple maker, at all times material herein constituted and now constitute
See Natuonal Labor Relations Bard v Express Publishing Company , 312 II S. 426
SERVICE WOOD HEEL COMPANY, INC. 1195
.a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the-Act.
5. Wood Heel Turners Local 12A, United Shoe Workers of America,
(C. I. 0.) was, on March 1, 1940, and all times thereafter has been, the
exclusive representative of all employees in such unit for the purposes
of collective bargaining within the meaning of Section 9 (a) of the Act.
6. By refusing to bargain collectively with the Wood Heel Turners
Local 12A, United Shoe Workers of America, (C. 1. 0.) as the exclusive
representative of its employees in the above-stated unit, the respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (5) of the Act.
7. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8. The afore-mentioned unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2 (6) and (7),
of the Act.
ORDER
• Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
the Service Wood Heel Company , Inc., doing business under style and
trade name of Russell Heel Company, its officers, agents , successors,
and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of the Rus-
sell Employees Association or with the formation and administration
of any other labor organization of its employees and from contributing
financial or other suport to the Russell Employees Association or to
any other labor organization-of its employees;
(b) Refusing to bargain collectively with Wood Heel Turners
Local 12A , United Shoe Workers of America, (C. I. 0.), as exclusive
representative of all its employees except executives , supervisory em-
ployees, clerical employees, yard employees, the janitor and clean-up
man, the repairman , and the sample maker in its plant located at
Malden, Massachusetts:
(c) In any other manner interfering with, restraining , or coercing
its employees in,the exercise of the right to self-organization, to
form, join, and assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in con-
certed activities for the purposes of collective bargaining , or other
,mutual aid or protection , as guaranteed in Section 7 of the Act.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act : -
(a) Withdraw all recognition from Russell Employees Association
as representative of its employees for the purpose of dealing with
the respondent concerning grievances,, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment,
and completely disestablish Russell Employees Association as such
representative ; -
(b) Upon request bargain collectively with Wood Heel Turners
Local 12A, United Shoe Workers of America, (C.I.O.), as the exclu-
sive representative of all its production employees at the Malden
plant except executives, supervisory employees, clerical employees,
yard employees, the janitor and clean-up man, the repairman, and
the sample maker, in respect to rates of pay, wages, hours of
employment and other conditions of employment;
(c) Post immediately in conspicuous places in all its plants and
maintain for a period of at least sixty (60) consecutive days from
the date of said posting, notices to its employees stating that the
respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a), (b), and (c) of this Order;
and that the respondent will take the affirmative action set forth in
paragraphs 2 (a) and (b) of this Order;
'(d) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order what steps the
respondent has taken to comply therewith.