Somerset Shoe Company

National Labor Relations Board - Board Decisions

May 17, 1939

12 N.L.R.B. 1057 (N.L.R.B. 1939)

In the Matter of SOMERSET SHOE COMPANY and UNITED SHOE
WORKERS OF AMERIOA
Cases Nos. C-278, R-3.1, and R-344
AMENDMENT TO DECISION AND ORDER
May 17, 1939
On February 19, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Order in the above-entitled
cases.' On April 13, 1939, the Board issued a notice of its intention
to issue a specified amendment to its Decision and Order on April 24,
1939, or as soon thereafter as might be convenient, unless sufficient
cause to the contrary should appear. The Board also notified the
parties that they might file in writing with the Board on or before
April 20, 1939, objections and arguments in support thereof, to the
issuance of said amendment to the Decision and Order. Upon the
request of the Somerset Shoe Company, herein called the respond-
ent, the Board extended the time within which objections and argu-
ments in support thereof, might be filed to April 28, 1939. The
respondent also requested an opportunity to argue its objections
orally, and the Board granted its request. Thereafter, both the
United Shoe Workers of America, herein called the United, and the
respondent filed exceptions to the issuance of said amendment to the
Decision and Order. The respondent likewise filed a reply to the
United's exceptions.
Pursuant to notice of postponement, a hearing for the purpose
of oral argument was held before the Board on May 4, 1939, at which
the respondent and the United were represented by counsel.
The Board has considered the respondent's exceptions and finds
them to be without merit. The United, in its exceptions, alleges that
it has information that the respondent "is hoping to evade its
responsibility under the Act by acquiring the property or use of the
Johnson Shoe Company, Norridgewock, Maine, to be operated as a
separate unit in place of the normal operations performed in plants
nos. 1 and 2 in Skowhegan, Maine." The United moved that the said
amendment to the Decision and Order be expanded to conform with
15 N L. R. B. 486.
12 N. L R. B., No. 105.
1057
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its exceptions. In its reply, the respondent denied that it contem-
plated acquiring the property of the Johnson Shoe Company or that
it had any present intention of "opening any additional manufac-
turing plants," and questioned the Board's "right" to issue an order
"respecting the future places of business" of the respondent.
Without passing upon the truth of the foregoing assertions con-
tained in the United's exceptions, we shall nevertheless frame our
amendment to meet the possibility which they suggest and we accord-
ingly overrule the respondent's objections thereto. We find that in
order to effectuate the policies of the Act and to remedy the situa-
tion brought about by the respondent's unfair labor practices it is
necessary that the respondent be ordered to offer the employees who
were locked out on March 24, 1937, and who have not since been fully
reinstated, reinstatement to their former or substantially equivalent
positions at the respondent's Skowhegan Plants Nos. 1 and 2, or at
any other plant which the respondent may acquire and operate in the
future.
By virtue of and pursuant to Section 10 (d) of the National Labor
Relations Act, the Board hereby amends its Decision and Order in
the above-entitled cases :
1. By striking therefrom all that appears in Section VI under the
heading "The Remedy," and substituting therefor the following :
VI. THE REMEDY
It is clear that on March 29, 1937, when the United's request to
bargain was received by the respondent, the United represented a
majority of the respondent's employees. If doubt is now cast upon
the majority status of the United, it is as a direct result of the unfair
labor practices of the respondent. We cannot consider as the free
expression of its employees any change in designation of representa-
tives resulting from the respondent's unfair labor practices.2 To
recognize the calculated effects of such practices would be to defeat
the purposes of the Act. The United is entitled to be restored to its
status as the representative of the majority of the respondent's em-
ployees, and we shall order the respondent to bargain with the United
upon request as the exclusive representative of the employees in the
appropriate bargaining unit.
As we have seen, the respondent locked out its employees on
March 24, 1937, in violation of Section 8 (1) and (3) of the Act.
On April 15, 1937, while the lock-out was still in effect, the Union
S National Labor Relations Board v. Remington Rand, Inc., 94 F (2d) 862, cert den.
304 U S. 576; National Labor Relations Board v . Biles -Coleman Lumber Company, 96
F (2d) 197; National Labor Relations Board v Louisville Refining Company, 102 F (2d)
678; and Matter of Bradford Dyeing Association (U S. A ) (a Corporation ) and Tex-
tile Workers' Organizing committee of the C. 1. 0., 4 N L. R B. 604.
SOMERSET SHOE COMPANY 1059
voted to go on strike as a protest against the respondent's refusal to
bargain and commenced to picket the plants. On May 11, 1937,
when plant No. 1 reopened for production, it appears that reinstate-
ment was offered to all employees. When employees voluntarily go
on strike even in protest against unfair labor practices, it has been
our policy not to award them back pay during the period of the
strike.3 The commencement of the strike in the instant case, how-
ever, did not terminate the respondent's obligation to make payments
of back pay, since at the date of the strike the lock-out was still in
existence and the strike had no effect on the situation. The strike
became effective only when the respondent opened plant No. 1 for
production on May 11, 1937, and indicated that jobs were available
for the employees. We will, therefore, order the respondent to make
whole all of its employees for any loss of pay they may have suf-
fered by reason of the lock-out by payment to each of them of a sum
of money equal to the amount which each normally would have
earned as wages from March 24, 1937, to May 11, 1937, less his or her
net earnings 4 during such period.
The employees whom we have found to have been locked out on
March 24, 1937, are entitled also to reinstatement upon application.
We shall order the respondent to offer reinstatement to their former
or substantially equivalent positions at the respondent's Skowhegan
Plants Nos. 1 and 2, or at any other plant which the respondent may
acquire,and operate in the future, to those employees who have not
been since fully reinstated. Such reinstatement shall be effected in
the following manner : All persons, now employed by the respondent
at its Skowhegan Plants Nos. 1 and 2, or who may be employed by
the respondent at any plant which it may acquire and operate in the
future, who were not employees of the respondent on March 24, 1937,
shall, if necessary to provide employment for all those who were
employees of respondent on March 24, 1937, be dismissed. If there is
'Matter o f Carlisle Lumber Company and Lumber & Sawmill Worlers' Union, Local
2511, Onalaska , lVashington and Associated Employees of Onalaska , Inc., Intervener, 2
N L. R B. 248, aff'd 94 F. (2d) 138, cert den , 304 U S 575 ; Matter of American
Manufacturing Company ; Company Union of the American Manufacturing Company; the
Collective Bargaining Committee of the Brooklyn Plant of the American Manufacturing
Company and Textile Workers' Organization Committee , C I. O , 5 N L R B. 443; Matter
of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers,
7 N. L F. B. 1252
4 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
Amer,ca, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440 Monies
received for work performed upon Federal, State, county, municipal, or other work-relief
projects are not considered as earnings, but, as provided below in the Order , shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal, State, county . municipal , or other govern-
ment or governments which supplied the funds for said work -relief projects.
169134-39-vol 12-68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not sufficient employment then immediately available for all persons
who were employees on March 24 , 1937, all available positions shall
be distributed among such employees in accordance with the respond-
ent's usual method of operation under curtailed production , without
discrimination against any employee because of his union affiliation
or activities , following a system of seniority to such extent as was
applied in the conduct of the respondent's business prior to March 24,
1937. Those employees remaining after such distribution, for whom
no employment is immediately available, shall be placed upon a pref-
erential list prepared in accordance with the principles set forth in
the previous sentence , and shall thereafter , in accordance with such
list, be offered employment in their former or in substantially
equivalent positions , as such employment becomes available because
of the opening of Plant No. 2 or because of the acquisition and opera-
tion of any newly acquired plant or for any other reason, and before
other persons are hired for such work.
2. By striking therefrom all that appears under the heading
"Order" and substituting therefor the following:
ORDER
On the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Somerset Shoe Company, Skowhegan, Maine, and its' officers,
agents, successors, and assigns , shall:
1. Cease and desist from discouraging membership in the United
Shoe Workers of America, or any other labor organization of its
employees, by discriminating in any manner in regard to the hire or
tenure of employment of any of its employees.
2. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations , to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid and protection , as guaranteed in Section 7
of the National Labor Relations Act.
3. Cease and desist from refusing to bargain collectively with
United Shoe Workers of America as the exclusive representative of
its Skowhegan employees, excluding supervisory and clerical em-
ployees, in respect to rates of pay, wages, hours of employment, and
other conditions of employment.
SOMERSET SHOE COMPANY 1061
4. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Make whole all employees who were laid off by reason of
the shut-down on March 24, 1937, for any loss of pay suffered by
reason of such shut -down by payment to each of them of a sum of
money equal to that which each would normally have earned as wages
during the period from March 24, to May 11 , 1937, less his or her net
earnings , if any, during that period, deducting however from the
amount otherwise due to each of the said employees monies received
by said employee during said period for work upon Federal , State,
county, municipal, or other work-relief projects and pay over the
amount so deducted to the appropriate fiscal agency of the Federal,
State, county, municipal , or other government or governments which
supplied the funds for said work -relief projects;
(b) Upon application , offer all persons in the employ of the
respondent on March 24 , 1937, who have not since been fully rein-
stated, reinstatement to their former or substantially equivalent posi-
tions at the respondent's Skowhegan Plants Nos. 1 and 2, or at any
other plant which the respondent may acquire or operate in the future,
without prejudice to their seniority and other rights and privileges
in the manner set forth in the section entitled "The Remedy" above,
placing those employees for whom employment is not immediately
available upon a preferential list in the manner set forth in said
section; and thereafter, in said manner, offer them employment as it
becomes available; and make whole said employees for any loss of pay
they may suffer by reason of any refusal of reinstatement or place-
ment upon the preferential list, by payment to each of them of a sum
of money equal to that which each would normally have earned as
wages during the period from five (5) days after the date of applica-
tion to the date of the offer of reinstatement or placement upon the
preferential list, less his or her net earnings during said period; de-
ducting, however, from the amount otherwise due to each of the said
employees, monies received by said employee during said period for
work performed upon Federal , State, county, municipal , or other
work-relief projects and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
said work-relief projects;
(c) Upon request, bargain collectively with United Shoe Workers
of America, as the exclusive bargaining representative of its Skow-
hegan production employees , excluding supervisory and clerical
employees ;
(d) Post immediately notices to its employees in conspicuous
places through its plants stating that the respondent will cease and
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desist in the manner aforesaid, and maintain such notices posted for
a period of at least sixty (60) consecutive clays from the date of
posting;
(e) 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.
AND IT Is FURTHER ORDERED that the petitions for investigation and
certification of representatives, filed by United Shoe Workers of
America, be, and it hereby is, dismissed.