International Shoe Co.

National Labor Relations Board - Board Decisions

Mar 26, 1951

93 N.L.R.B. 907 (N.L.R.B. 1951)

INTERNATIONAL SHOE COMPANY 907
tined in the Act, and all other employees, constitute, and at all times material
herein have constituted, a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
3. Lodge No. 750, International Association of Machinists, was, on September
$, 1950, and has been, at all times material since, the exclusive representative of
all the employees in the unit above described for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act.
4. By refusing, on October 6, 1950, and thereafter, to bargain collectively with
Lodge No 750, International Association of Machinists, as the exclusive repre-
sentative of all the employees in the unit above described, the Respondent has
engaged in, and is engaging in, unfair labor practices within the meaning of
Section (8) (a) (5) of the Act.
5 By said refusal to bargain, the Respondent has interfered with, restrained,
and coerced its employees in the exercise of the right guaranteed in Section 7
of the Act, thereby engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
fRecommended Order omitted from publication in this volume.]
INTERNATIONAL SHOE COMPANY and LOCAL 198, UNITED RUBBER, CORK,
LINOLEUM AND PLASTIC WORKERS OF AMERICA, CIO. Case No.
14-CA -326. March W, 1951
Decision and Order
On July 10, 1950, Trial Examiner James J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not violated Section 8 (a) (1), (3), or (5) of the
Act, as alleged in the complaint, and recommending that the com-
plaint be dismissed in its entirety. Thereafter, the General Counsel
and the Union filed except ions to the Intermediate Report and sup-
porting briefs. The Respondent filed a brief in support of the Inter-
mediate Report. The Union also requested oral argument. This re-
quest is denied as the record and brief in our opinion, adequately pre-
sent the issues and positions of the parties.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner set forth in the copy of his Intermediate Report,
attached hereto, with the following additions and modifications :
The Respondent manufactures rubber heels and soles at the plant
involved in this case. The operations of this plant are divided into
.93 NLRB No. 159.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.three departments, each of which represents one stage of an integrated
assembly-line operation. An interruption of work in one department
would impede, if not disrupt, the operations of the other departments.
Moreover, to achieve maximum plant efficiency, the press department
has to operate on a three-shift, 24-hour-a-day, basis? It is against
this background that the work stoppages of June 21, 1949, and the
subsequent events need to be evaluated.
Before June 21, 1949, the Respondent and the Union had reached
agreement on the terms of a new contract, including a maintenance
of membership clause, which required all employees who were mem-
bers of the Union on the effective date of the contract and who joined
the Union thereafter to maintain their membership as a condition of
employment. During the period of the negotiations, the Union, how-
ever, conducted a campaign to organize the plant completely, so that
as of the effective date of the new contract, at least, the plant would
be on a compulsory all-union basis. To implement this campaign,
the Union on June 21, 1949, conducted intermittent work stoppages
in two different departments.2 The first stoppage-allegedly involv-
ing some threats to nonunion employees-resulted in a complete cessa-
tion of operations in the other department; the second stoppage, which
occurred in the press department, precluded the prompt resumption
of work in the first shift of the other departments.
Upon learning of the first of these stoppages, the Respondent an-
nounced that because of this incident it was withdrawing its offer
of a maintenance of membership provision. During the course of
the second stoppage, the Respondent on the morning of June 22 closed
the plant doors.3 On June 24, it addressed a letter to the employees,
stating that because the Union had failed to complete its acceptance
of the contract 4 and had engaged in conduct which violated the terms
and spirit of the contract,' the Respondent's contract offer was with-
drawn. On the following day, June 25, the Union proposed that all
employees return to work on June 27, and that negotiations be resumed
after the plant reopened. The Respondent, however, declined to re-
sume operations until it had a signed contract containing a no-strike
clause, and also an "escape" provision in the maintenance of member-
ship clause which would reserve an opportunity to resign from the
Union to all who had joined after June 2, 1949. The Union accepted
' The machines in the press department cannot operate unless they have first been,
heated for several hours . Accordingly, if the machines were turned off at the end of the
second shift, time would be lost in starting them up again the next morning for the
first shift.
3 The avowed reason for these stoppages was the refusal of the union members to work
with nonunion employees.
6 As stated below, the plant did not reopen until August 1, 1949.
t The Union had withheld final acceptance of the contract pending approval thereof by
its International.
6 The proposed contract contained a no-strike clause.
INTERNATIONAL SHOE COMPANY 909
the Respondent's new contract offer, except for the foregoing escape
clause. It was not until July 28 that an agreement on the escape clause
was reached and a new contract executed." The plant reopened on
August 1.
Like the Trial Examiner, we find that, in view of the interdependent
functioning of the different departments in the plant, and the need
for round-the-clock operations in the press department, there was
economic justification for the Respondent's conduct in shutting down
the plant in the morning of June 22 until it had adequate assurance
that the employees in all departments and all shifts were ready to work.
Nothing in the Act, in our opinion, requires that an employer continue
to operate his plant despite the prospect of recurrent work stoppage
which would make further operations uneconomical.7
We believe, further, that the particular considerations and circum-
stances which justified the shutdown on June 22, also justified the
Respondent in refusing on June 25 to reopen the plant until the
Union had actually signed a contract with a no-strike clause.
The Board has held that "An employer may lawfully discontinue
or reduce his operations for any reason whatsoever . . . provided only
that the employer's action is not motivated by purpose to interfere
with and defeat its employees' union activities." [Emphasis sup-
plied.] 8 The record reveals an employer who has recognized and
made contracts with the Union since 1942. During the 1949 negotia-
tions it continued to manifest its good faith in its dealings with the
Union. On June 10 it had agreed to a new contract, granting the
Union continued union security in the form of a maintenance of mem-
bership clause. Execution of this contract, which also contained a
no-strike clause, was held up pending approval by the Union's inter-
national. The Union was of course entitled in the meantime to try
to sign up nonmembers, so as to have as many employees as possible
subject to the maintenance of membership clause on the effective date
of the new contract. The Union was apparently unwilling, however,
to rely solely on verbal persuasion to convince the nonmembers that
they should join. It subjected the Employer to the harassment of
intermittent work stoppages, paralyzing production, as part of its
campaign to force nonmembers to sign up .9 We believe that the Em-
ployer, which agreed with the Union on all economic demands, under-
standably regarded such conduct as inconsistent with the spirit of
the new, though unsigned, contract and with a proper sense of respon-
As finally adopted, the contract permitted resignation from the Union of all who had
joined after June 18
See Duluth Bottling Association , 48 NLRB 1335.
s Pepsi-Cola Bottling Company, 72 NLRB 601 and 602
As the record clearly supports a conclusion that the Union acting through its responsible
officers, instigated these work stoppages , it is not necessary to find the Union responsible
for them simply because it was the bargaining agent, as the Trial Examiner does.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sibility. We are unwilling to say that the Employer acted unreason-
ably or discriminatorily under these circumstances, when it took the
position on June 25 that it would not reopen its plant until the Union's
signature on a contract with a no-strike clause provided it with reason-
able assurances that there would be an end to the harassment and that
production might be resumed on a stable basis. It is clear that the
Respondent, in refusing to reopen on and after June 25, was not
motivated by any animus against the Union or its employees' mem-
bership therein.
The only problem remaining is whether the Employer's insistence
that such contract contain an escape clause in the maintenance of
membership provision was, as the General Counsel contends, a refusal
to bargain in good faith and motivated by a desire to retaliate against
the Union. We are similarly unwilling to treat the inclusion of this
demand by the Employer as not justified under the circumstances,
or as a violation of the Act. There is nothing to show that this was
demanded in a spirit of retaliation; 10 there is much to show con-
siderable foundation for the Employer's belief that such a clause was
necessary to nullify coercive conduct engaged in by the Union in its
membership drive. The record reveals that in the course of the mem-
bership drive, which the union president himself testified was "kinda
warm" union agents engaged in conduct which at the least may be
said to have bordered upon a violation of Section 8 (b) of the Act.-
Apart from the instances of such conduct detailed in the record, it
appears that the General Counsel issued a-complaint on charges of
violations of Section 8 (b) (1) (A) by the Union. Although the
Union filed an answer denying such violations, it signed a settlement
stipulation wherein it agreed to cease and desist from restraining
and coercing employees, on which a Board Order issued on April
6, 1950. If the Employer was to join the Union in compelling mem-
bership by a maintenance of membership provision, we believe that
the course of events after agreement was reached on a contract on
June 10 warranted the Employer's insistence on an escape clause to
ensure that the membership thus to be maintained was actually a free
and not a coerced membership.
We hold, therefore, that under the special circumstances of this case,
the Employer was justified in instituting and continuing a temporary
lockout of its employees until the Union signed the contract, and
that it did not violate Section 8 (a) (3) or 8 (a) (5) of the Act in
10 It may be noted that all of the contracts between the parties except the first and
the most recent had contained an escape clause , so it was no novel afterthought.
u Thus when nonunion employees Rhodes and Elliott approached the employees ' entrance
to the plant on June 21 , they were met by a group of employees including Kerns, the
union secretary , and Lilly , the union president When Rhodes asked , "What's the matter?
Aren 't we working today" Kerns replied, "Not unless you have a Union card ." Rhodes
and Elliott then left.
INTERNATIONAL SHOE COMPANY 911
so doing.12 The attempt of our dissenting colleagues to approach
the case in terms of the rights of economic strikers to reinstatement
is plainly misconceived.
We are not here faced with a, situation in which an employer seeks
to operate its plant with replacements while refusing to reinstate
economic strikers. Here the parties were engaged in a contest over
economic matters. Neither sought to undermine the other by unfair
labor practices. The Union, which chose to use an economic weapon
within its control, cannot rightly complain because the employer
saw fit to follow suit. This case stands on its own facts; we are
not here confronted with and need not pass upon the right of an
employer in ordinary circumstances to lay off employees pending
negotiation of a complete contract.13
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein
against the Respondent, International Shoe Company, Hannibal,
Missouri, be, and it hereby is, dismissed.
MEMBER MURDOCK, concurring :
I concur in the action of Chairman Herzog and Member Reynolds,
in dismissing the complaint herein. I wish to make clear, however,
that I would dismiss the complaint solely because I find that under
the peculiar circumstances of this case as set forth in their opinion,
the employer was justified in taking the position that it would not
reopen the plant until the union had signed the new contract with the
no-strike clause and an escape provision. I have not signed their
opinion because in certain aspects it seems to me internally incon-
sistent or at least confusing and I do not wish to be understood as
"The General Counsel contends , in addition . that , having addressed a letter on June
7, 1949, to the employees, in derogation of the status of their bargaining representative,
the Respondent thereby violated Section 8 (a) (5) and (1) of the Act However, we find
that , as the letter contained a substantially accurate summary of the negotiations, it was
privileged N L. R. B v. Reed & Prince Manufacturing Co, 118 F 2d 874 (C. A 1)
ii The Morand case , cited by our dissenting colleagues , deals with a wholly different
factual situation , and our decision here is in no sense inconsistent with the decision of
the Board in that case.
In that case , following an impasse in bargaining on an association -wide basis. a union
called a strike against one member of a multi-employer association. That employer dis-
chariled his striking employees and the other employers , fearing they would be struck one
at a time , discharged all their employees The Board , viewing the discharges as reprisals
for concerted activity, held that employers could not discharge employees for striking or
because they anticipated that employees might strike in the future In the instant case,
the delay in reinstatement was not a reprisal for concerted activity , but was rather a
reasonable measure adopted by the Respondent to ensure continued uninterrupted produc-
tion once the plant was reopened.
In his dissenting opinion in the Morand case, Member Reynolds viewed the employer's
conduct there as a temporary economic lockout, similar to the type here involved He
therefore regards the applicable part of his dissenting rationale in the Morand case as
further supporting the result here reached by the majority.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
passing upon a principle which I deem unnecessary to espouse to
decide this case but which part of their opinion appears to approve.
Thus, despite the fact that at one point the opinion purports not to
"pass upon the right of an employer in ordinary circumstances to lay
off employees pending negotiation of a complete contract," at yet
another point it rationalizes the dismissal on the basis of a broad
generalization from the Pepsi-Cola decision to the effect that an em-
ployer can shut down operations "for any reason whatsoever" pro-
vided only that it is not done to interfere with and defeat union
activity.- It is clear that the principle thus stated is so broad as to
encompass employer freedom in an ordinary contest with a union over
bargaining demands to shut down his plant as an economic weapon
to force the union to agree to his terms as the price of reopening. I
do not here reach or pass upon that question.
MEMBERS HOUSTON and STYLES, dissenting :
We agree with the majority that the shutdown of the plant on
June 22, 1949, was dictated by lawful economic considerations, and
was not a measure of reprisal for the work stoppages that preceded
the shutdown.
The majority, in our opinion, misstates the issue when it asserts
that the Respondent did not violate Section 8 (a) (3) of the Act by
refusing on June 25 to reopen the plant'until the Union had actually
signed a contract with a no-strike clause. The Union was, in fact,
willing on June 25 to sign a contract with a no-strike clause. It was
unwilling, however, to sign a contract with an escape clause , as pro-
posed by the Respondent. This was the only contract provision which
prevented the parties from reaching agreement , and the Respondent's
insistence on that clause, unlike the no-strike clause, may not be justi-
fied on the ground that the escape clause would promote or assure
stability of operations 15 Accurately stated, therefore, the issue is
whether the Respondent violated Section 8 (a) (3) of the Act by
refusing the strikers' _ unconditional request for reinstatement until
the Union had signed a contract with an escape clause, although the
escape clause had no relation to stability of operations. The majority
fails to deal squarely with this issue.
We would find that the Respondent did violate Section 8 (a) (3)
and (1) by refusing on June 25 to accept the unconditional request
"It is to be noted that this was said in a two -member decision in which the Board
found that an employer had not shut down his operations because of a material shortage
and machinery repairs as contended , but because of his desire to destroy the union. In
the context of the case it seems evident that language immunizing shutdowns "for any
reason whatsoever" except to destroy a union, was intended to encompass only economic
conditions confronting an employer-not to pass upon the status of shutdowns as per-
missible offensive weapons in economic struggles with unions over collective bargaining
contracts.
15 Concededly , the Respondent 's only reason for insisting on the escape clause was to
nullify the effect of the Union's organizational drive by giving the employees who had
joined the Union as a result thereof an opportunity to resign.
INTERNATIONAL SHOE COMPANY 913
of the employees for reinstatement, pending the Union's adoption of
the escape clause proposed by the Respondent.
The majority does not find that the employees had by their conduct
on June 21 forfeited the protection of the Act, or that they were not
on June 25 entitled to all the rights under the Act of economic
strikers .16 The law is now well settled that in an economic strike the
employer may refuse to reemploy the strikers on the ground that their
jobs have been filled by replacements. However, where the strikers,
as in the instant case, before they have been replaced, apply uncon-
ditionally for reinstatement, the Board has consistently held, with
judicial approval,'' that a denial of reinstatement violates the Act.
Nor may an employer condition the reinstatement of strikers under
such circumstances upon the abandonment by the employees of lawful
concerted activity '8 or of other rights guaranteed by the Act.'9
In the instant case, the Respondent on June 25, in effect, conditioned
the reinstatement of its employees upon their abandonment of their
concerted demand for a maintenance of membership clause without
any escape provision. As this bargaining demand was clearly a form
of concerted activity protected by the Act, the Respondent's refusal
to rehire its employees until they receded from this demand and
agreed to an escape clause, in our opinion, was reasonably calculated,
and was designed, to coerce the employees in the exercise of their
right to engage in concerted activities.20
19 The majority refers to conduct of union agents on June 21 as "bordering on" violations
of Section 8 (b) of the Act, and cites the fact that the Union signed a settlement agree-
ment, on the basis of which the Board issued an order that the Union cease and desist
from violations of Section 8 (b) (1) (A) However, the majority does not find , nor, in
our opinion , could it properly find that because of such misconduct by several employees
(which was subsequently condoned by the Respondent ), or because of the Union 's execution
of the settlement agreement , all the Respondent ' s employees forfeited the protection of
the Act
11 N. L R B v Mackay Radio & Telegraph Co, 304 U S 333
is See e g., E. A. Laboratories, Inc, 80 NLRB 625, 626 (refusal to reinstate strikers
unless they abandoned the union ) ; Goodyear Aircraft Corporation , 63 NLRB 1340 ( refusal
to reinstate demoted employee to former position unless he waived right to be represented
by union in certain instances).
19 See e g , the following cases, where the Board found a violation of the statute by
reason of the employer ' s refusal to reinstate strikers unless they returned as new employees.
Indiana Desk Company, 56 NLRB 76; St. Marys Sewer Pipe Company, 54 NLRB 1226;
Wallingford Steel Co., 53 NLRB 404.
20 As the refusal to reinstate the strikers was to this extent , at least, designed to inter-
fere with and defeat union activities of the employees, the Pepsi-Cola case, cited in the
majority opinion, does not support the finding of the majority that the Employer did not
by such refu,al isolate Section 8 (a) (3) and (1). In that case, two Members of the
Board recognized, by way of dictum, the right of an employer to shut down his plant
"for any reason whatsoever . . . provided only that the employer 's action is not motivated
by a purpose to interfere with and defeat its employees ' union activities " However, the
presentation of a bargaining demand , as in this case , by a union on behalf of the
employees it represents is clearly a union activity of such employees , and a refusal to
reinstate such employees upon their unconditional request unless their union abandons
its demand can have no purpose other than to defeat that particular form of union
activity. In any event, we agree with the concurring opinion of Member Murdock that,
read in its context , the language quoted above from the Pepsi-Cola case was not intended
to sanction an employer 's resort to a shutdown as an economic weapon to reinforce its
bargaining position.
943732-51-59
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover , the holding of the majority that the Respondent might
lawfully continue the existing disruption of production until all its
contract demands were settled, is in derogation of the basic policy of
the Act to minimize interruptions of commerce . The Union on June 25
proposed that the employees return to work on June 27 and that any
outstanding differences between the parties as to the type of mainte-
nance of membership clause be submitted to the salutary processes of
collective bargaining . As already stated, the Union was , moreover,
willing to execute a no-strike clause as assurance against any further
work stoppages. The Respondent did not have to agree to any mainte-
nance of membership clause at all ; it could have reinstated its em-
ployees and executed an interim contract with a no-strike clause but
without any union-security clause, reserving the latter issue, as pro-
posed by the Union, for further negotiation after the plant was in op-
eration. By permitting the Respondent, instead, to insist on refusing
to take back the striking employees until all the contract issues had
been settled , the majority has failed to give effect to the paramount
statutory policy of maintaining the free flow of commerce.
In our opinion , the doctrine enunciated in the Morand case 21 is
equally applicable here. There the respondents , members of a multi-
employer group, contended that they were justified ih discharging all
their salesmen as the only alternative to capitulating one by one to the
anticipated pressure of a series of strikes by the union against each re-
spondent in turn. There, as here, the respondents, citing their prior
harmonious relations with the union , asserted that they did not act
from any bias against, or from any desire to undermine , but wished
only to protect their own economic interest in maintaining their bar-
gaining position vis-h-vis the union. However, the Board majority
in that case held that this type of economic interest did not create any
privilege under the Act to discharge employees for striking or
threatening to strike, and the discharges in that case were found to
violate Section 8 (a) (3) and (1) of the Act.
Here, however , the majority holds, in effect , that the Respondent's
interest in reinforcing its bargaining position justified it in refusing to
reinstate its employees until their Union yielded on all issues in dis-
pute, and that the refusal to reinstate did not, therefore , violate the
Act. We are unable to reconcile this holding with the decision in
Morand.
It is true that Morand involved a severance , rather than a suspension,
of the employment relationship , and that the Board there expressly
reserved the question whether an employer might lawfully lay off his
employees pending contract negotiations . Assuming that a refusal
to reinstate pending negotiations, as in the instant case, may be equated
11 91 NLRB 409.
INTERNATIONAL SHOE COMPANY 915
to a layoff, the logic of Morand, in our opinion, nevertheless compels
the same result in the case of a layoff or refusal to reinstate as in the
case of a discharge. Such action, even if less drastic than a discharge,
nevertheless exerts potent economic pressure on the affected employee,
and where such pressure is applied, as in this case, for the purpose of
coercing employees at the bargaining table, it is no less violative of the
Act, in our opinion, than are discharges made for the same purpose.
We believe, therefore, that the decision of the majority in the instant
case is inconsistent with the rationale of the Morand decision, and
constitutes an unwarranted subversion of the basic policy of the Act
to minimize interruptions of commerce.
For all these reasons, we would find that, by its refusal on June 25,
1949, to reinstate its employees, the Respondent violated Section 8 (a)
(3) and (1) of the Act.
The Refusal to Bargain in Good Faith
We also disagree with the finding of the majority that the Re-
spondent did not violate Section 8 (a) (5) of the Act. We would find
that the entire course of the Respondent's conduct, particularly since
June 21, 1949, demonstrates a lack of good faith in its negotiations
with the Union. Indicative of the Respondent's bad faith are :
Its withdrawal on June 24 of its entire contract offer, notwithstand-
ing that the Union had already manifested its acceptance of this offer,
subject to approval by its International; 22 the Respondent's letters
to the individual employees of June 7 and June 24, wherein Respondent
bypassed the Union as the duly designated bargaining representa-
tives; 23 and the Respondent's refusal to reinstate the strikers until
the question of the inclusion of an escape clause in the contract-the
only outstanding issue-had been settled. It is one thing for an em-
ployer to seek to gain his point at the conference table through persua-
sion and good faith bargaining. It is quite another matter for an em-
ployer to deny work to his employees until their union accepts his
terms. That was the effect of the Respondent's rejection of the pro-
posal by the Union that the employees be permitted to return to work
pending negotiation of the escape clause issue. The Union, having
abandoned the strike, was obviously not disposed to be intransigeant in
future negotiations. It readily accepted the Respondent's demand for
a no-strike clause, thus surrendering its most effective economic wea-
pon. In view of this conciliatory attitude on the part of the Union,
the Respondent's adamant insistence on refusing to reinstate the
22 See Atlanta Broadcasting Company, 90 NLRB 808, and cases there cited , Tomlinson
of High Point, Inc , 74 NLRB 681
23 Cf Waterman Industries, Inc, 91 NLRB 1041 ; Cathey Lumber Company, 86 NLRB
157, 164 ; Samuel Bingham 's Son Mfg Co , 80 NLRB 1612
916 DECISION S OF NATIONAL LABOR RELATIONS BOARD
strikers during negotiations was, in our opinion, clearly gratuitous,
and reflects on the Respondent's good faith.
It is clear that the Respondent's refusal to reinstate its employees
served no purpose other than to coerce the Union into granting the
Respondent's demand for an escape clause. In upholding the con-
stitutionality of the Wagner Act, the Supreme Court stated, "The
theory of the Act is that free opportunity for negotiation with ac-
credited representatives of employees is likely to promote industrial
peace and may bring about the adjustments and agreements which the
Act in itself does not attempt to compel." [Emphasis supplied.]24
By depriving its employees of their livelihood until they accepted its
terms, the Respondent made a mockery of "that free opportunity for
negotiation" contemplated by the statute.
Moreover, the Respondent's conduct, as already indicated, was in-
compatible with the statutory policy of minimizing disruptions of
commerce. It is a clear perversion of the intent of Congress to con-
strue Section 8 (a) (5) of the Act as satisfied by conduct like that of
the Respondent, which can lead only to stoppages of production,
varying in length with the power of the union involved to hold out
against the employer's demands.
In view of all the foregoing circumstances, we would find that the
Respondent violated Section 8 (a) (5) and (1) of the Act.
Intermediate Report
Mr. Milton 0. Talent, of St. Louis, Mo, for the General Counsel.
Messrs. Richard 0. Rumer and A. G. Eberle, of St. Louis, Mo., and Branham
Rendlen, of Hannibal, Mo, for the Respondent.
STATEMENT OF THE CASE
Upon an amended charge duly filed in Case No. 14-CA-326 by Local 198,
United Rubber , Cork, Linoleum & Plastic Workers of America , CIO, herein called
the Union , and upon an amended charge duly filed in Case No. 14-CB-74' by
International Shoe Company , herein referred to as INS and also as the Respond-
ent, the General Counsel of the National Labor Relations Board through the
Board's Regional Director for its Fourteenth Region ( St. Louis, Missouri) on
March 1, 1950, issued a complaint alleging that INS had violated Section 8 (a)
(1), (3), and ( 5) and Section 2 (6) and ( 7) of the National Labor Rela-
tions Act as amended ( 61 Stat. 1 36), herein called the Act, and a complaint alleg-
ing that the Union had violated Section 8 (b) (1) (A) and Section 2 (6) and (7)
of the Act . The same day an order was duly issued consolidating the two
cases. Copies of the amended charges, the complaints, the order of consolida-
tion, and notice of hearing were duly served upon INS and the Union.
The complaint in Case No . 14-CB-74 alleged that the Union from about June
20, 1949, and thereafter through its officers and agents warned employees of
INS to join the Union , threatened them with economic reprisals if they failed to
24 N L. R. B. v. Jones it Laughlin Steel Corporation, 301 U. S 1, 45
1 As will hereafter appear, this case was settled before the hearing started
INTERNATIONAL SHOE COMPANY 917
do so, engaged in a work stoppage to compel them to join, prevented them from
reporting for work, threatened them with physical harm if they reported for
work, and made intimidatory and coercive statements to employees to encourage
membership in the Union. On March 13, 1950, the Union filed an answer to
this complaint denying the commission of any unfair labor practices, but on
March 22 following, it signed a settlement stipulation wherein it agreed to
cease and desist from restraining and coercing employees of INS in the exer-
cise of their rights as guaranteed in Section 7 of the Act. On March 23, 1950,
the Board ordered the two cases severed.
With respect to the unfair labor practices in Case No. 14-CA-326, the com-
plaint alleged in substance that INS (a) on or about June 22, 1949, locked out
and discharged or laid off the production and maintenance employees and failed
and refused to reinstate them until about August 15, 1949, because of their
membership in the Union and their concerted activities with other employees
for the purpose of collective bargaining and other mutual aid and protection;
(b) from about June 21, 1949, and at divers times thereafter made intimida-
tory and coercive statements to discourage employees' union membership or
activity for collective bargaining ; attempted to circumvent the authority of
the Union as the representative of its employees in an appropriate unit by in-
dividually soliciting and appealing to the employees to refrain from their union
or concerted activities, and threatened them with reprisals if they persisted
therein; and (c) on or about June 21, 1949, and at various times thereafter
refused to bargain collectively with the Union as the exclusive representative
of its employees in the appropriate unit
In its answer filed March 13, 1949, INS admitted that the Union was the ex-
clusive representative for bargaining purposes of its employees in an ap-
propriate unit as described in the complaint, but specifically denied that it
had committed the unfair labor practices alleged. The answer affirmatively set
forth that in the spring of 1949 the parties were negotiating the terms of a
new contract and the Union unsuccessfully sought to include in the contract
a provision requiring membership in the Union as a condition of employment ;
that thereafter and until July 26, 1949, when a contract was executed by the
parties, the Union endeavored to compel certain employees of INS to join the
Union in violation of Section 8 (b) (1) (A) of the Act (substantially as al-
leged in the complaint in Case No. 14-CB-74) ; that the temporary closing of
the plant was clue to a strike for the above objective which completely stopped
the operation of the plant, and there was no lockout, discharges, or layoffs ;
and that the INS at no time refused to bargain with.the Union?
Pursuant to notice, a hearing was held at Hannibal, Missouri, from March
28 to April 3, 1950, before James J. Fitzpatrick, the undersigned duly designated
Trial Examiner. The General Counsel and INS or Respondent were represented
by counsel. The Union entered no formal appearance. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence .bear-
ing on the issues was afforded all parties. When the General Counsel rested,
Respondent moved to dismiss the complaint on the ground that the evidence
adduced was insufficient to support any of the unfair labor practices alleged
therein. Both the Respondent and the General Counsel argued extensively on
the record in support of and against the motion, which was denied. At, the
conclusion of the hearing, Respondent renewed its motion to dismiss on the
2 The following allegations were stricken from the answer over the objection of INS at
the opening of the hearing: (1) That the Union refused to bargain in good faith, and (2)
that the allegation of refusal to bargain on the part of INS was "outside the scope of the
charge filed by the Union."
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sane ground. The motion was taken under advisement and is disposed of as
will hereafter appear. The parties waived further oral aigument, but the Re-
spondent and General Counsel have filed briefs which have been of material
benefit in the preparation of this Intermediate Report.
Upon the entire record, and from my observation of the witnesses, I make the
following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The International Shoe Company is a Delaware corporation with places of
business in various States of the United States. The plant involved in this
proceeding is located at Hannibal, Missouri, where Respondent is engaged in
the manufacture of rubber heels and soles for use in approximately 50 shoe
manufacturing establishments of INS located in various States of the Union.
In the course and conduct of its business at the Hannibal plant for the calendar
year 1948, which is a representative period, the Respondent purchased materials,
consisting principally of rubber, in excess of $3,000,000 in value, approximately
90 percent of which value was purchased and came to the Hannibal plant from
outside the State of Missouri. During the same period, INS manufactured and
supplied to its various shoe plants above described rubber soles and heels in
excess of $5,000,000 in value, approximately 50 percent of which was shipped
across State lines from the Hannibal plant.
II. THE LABOR ORGANIZATION INVOLVED
Local 198, United Rubber, Cork, Linoleum & Plastic Workers of America, CIO,
is a labor organization within the meaning of Section 2 (5) of the Act, admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
The Respondent and the Union began their contractual relations in 1942.
About March 28, 1949, they began negotiations for a new contract to succeed the
current one executed and effective as of June 1947 to May 31, 1949, and with no
automatic renewal clause. The Union demanded a union-shop provision, but
INS, in accordance with its policy against compulsory union membership, re-
fused to agree to such provisions a On June 10 following, the negotiators agreed
to a tentative contract which included a maintenance-of-membership provision
similar to that contained in the previous contract. During these negotiations,
the union representatives made it clear to management that they would endeavor
to secure 100 percent membership in the Union among the employees. The Re-
spondent took the position that such a drive for members was entirely up to the
Union and no concern of management.
The tentative contract was ratified by Local 198 on June 18, subject to ap-
proval by the Union's international headquarters at Akron, Ohio. On June 21
the Respondent signed the contract, but Local 198 announced that it could not
sign it until the contract had been approved by the International Union.
3In the mean iuhile, the Union had qualified under the statute by winning a union-shop
election.
INTERNATIONAL SHOE COMPANY 919
Meanwhile, starting in April 1949, the union drive for 100 percent membership
among the employees, largely through handbills and solicitations, paralleled the
contract negotiations On June 15, as a result of a union grievance that certain
supervisors were advising nonunion employees not to join the Union, the Re-
spondent posted a notice that employees had a right to join or not to join a
union as they saw fit and that INS' attitude was neutral.
During the period of negotiations above described, union handbills were dis-
tributed announcing (a) meetings at which the Union's demands, the Respond-
ent's alleged efforts to remove "seniority rights," and reports on the negotiations
would he discussed and (b) a strike vote to be taken on June 9 and also a union-
shop election to be held on June 7. On June 7, the Respondent sent to each
employee, but not to the Union, a letter over the signature of Superintendent
M. L. Hawkins setting forth in detail the Respondent's version of the negotiations
and the position taken by each party therein. The letter denied that manage-
ment had proposed the abolition of seniority rights and, referring to the strike
notice, stated that if the plant was closed by a strike, INS would have to secure
its rubber heels and soles to supply its numerous shoe factories from other
sources when the stock on hand was exhausted ; and that there could be a 60-day
lapse after termination of the strike, because of commitments to secure soles and
heels from other manufacturers, before the plant could be reopened.
About 8 a. in. on the morning of June 21, when management was signing the
negotiated contract as above described, the employees in the trimming and
packing department 4 stopped working because three employees therein, namely,
Mattie Steele, Julia Rhodes, and Leeta Elliott, had not joined the Union. At
management's request that the union committee see that the trimming and
packing department employees return to work, the union committee went to the
striking employees who had not left the plant and suggested that they return
to work, but the latter refused to follow) this suggestion. Meanwhile, as a
result of the strike in the trimming and packing department, there was no one
on hand to remove the pans of soles and heels as they were conveyed from the
pressroom. The conveyors clogged and the pressroom had to shut down about
11: 40 a. in for the remainder of the first shift in that department. Likewise,
the first shift in the millroom- was also affected by the strike because the usual
supply of needed pans was not available ; and no work was performed in the
millroom from about noon to the-end of the first shift at 3: 30 p. in. i However,
early that afternoon, after Steele, Rhodes, and Elliott had been induced to sign
union cards, the trimming and packing employees returned to work.
Union officials had also advised management the morning of June 21 that
the pressroom third shift would not work that evening unless two employees 5
therein joined the Union. The same morning Superintendent Hawkins, on
learning that the trimming and packing employees were on strike and that the
third shift pressroom employees would not report for work that evening, told
the union committee that the Respondent would no longer agree to the main-
tenance-of-membership provision in the contract.
4 The principal operating departments are the millroom, the pressroom, and the trimming
and packing department During times material herein , these departments operated on
the following schedule • Millroom, two shifts daily, 7: 15 a. m to 3 • 30 p. m. and 3: 30
p m to 12 • 15 a m ; pressroom, three shifts, 7:40 a in. to 3 • 40 p m , 3, 40 p in. to
11 • 40 p in, and the third shift from 11 : 40 p in to 7. 40 a m. (normally the presses in
this department ran continuously around the clock) ; trimming and packing department,
one shift, 7 a m to 4 p m with 1 hour at noon for lunch This department also had one
man working on the second shift and another on the third shift. The job of each was
to unload pans of heels and soles received from the pressroom -via conveyors.
6 Marley Franklin and William L. Lowe.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When the third shift of the pressroom failed to report at their starting time
of 11:40 p. in., management shut the presses down and, when the second shift
of the millroom left the plant at or about 12: 30 a. in., closed the plant doors.
Later in the morning of June 22, when the first shifts repotted at the plant,
they found the doors were locked. The plant remained closed thereafter until
about August 1, 1949, when all the employees involved herein were returned
to work, after the Union and the Respondent had executed a new contract as
will hereafter appear.
On June 24, Superintendent Hawkins wrote the Union a letter stating:
We regret the action taken by our employees which has caused the rubber
plant to be closed.
Present difficulties follow acts of intimidation and coercion by union
members for the purpose of compelling employees to join the union. We
have always believed that our employees should be free to join or not
join a union and should not be intimidated or coerced into taking action
against their will. This position was made clear to your union in our
negotiations. It was clearly set forth in the proposed contract which was
submitted to you.
Because the union has failed to complete its acceptance of the contract
we offered and has engaged in conduct which violates the terms and spirit
of the proposed contract, we now notify you by this letter that our contract
offer is withdrawn.
At the time that the threat of a strike was served on us we pointed out
to the union committee and to our employees that a work stoppage would
require us to make outside rubber sole and heel purchases and commit-
ments which would seriously affect the production of the plant.
Unless orderly operation of the plant can be resumed by Monday, June
27th, there is likely to be serious curtailment of production for a number
of weeks. [Emphasis supplied.]
A copy of this letter was given to each employee when he called for his pay-
-check on June 24.'
On June 25 the Union held a meeting as a result of the receipt of the June 24
letter from Hawkins, and voted to return to work on Monday, June 27. Later
6 The statement in the next to the last paragraph of the above-quoted letter that
Respondent had previously pointed out to the Union and employees what would happen
in the event of a work stoppage had reference to the June 7 letter from Hawkins above
referred to and particularly the following portion thereof :
The Union Committee has advised that the Company's proposal was rejected and
is now planning to take a strike vote on June 9th The Commissioner of the Federal
Mediation Service has requested that another meeting be held on June 10th. The
Company has accepted.
The Company repeats here what it has told the Union Committee Its main busi-
ness is manutacturing shoes. It expects to operate its shoe factories whether its
Rubber Plant operates or not It has on hand a supply of heels and soles sufficient
to operate its shoe factories for several weeks, and can purchase a continuing supply
of its requirements, but if contracts are made with other manufacturers it will
require several weeks to terminate these contracts and use up the purchased soles
and heels
We would prefer that our Rubber Plant operations continue. We have made a fair
and reasonable proposal to our Employees If they decide to close the plant by
striking , then because a strike is of indefinite duration , we will have no alternative
except to arrange to buy soles and heels This will iequire not only that the plant
be closed for the duration of the strike, but also there will be a substantial effect on
employment after the strike ends as it will take possibly sixty days to terminate
our contracts with other manufacturers and use up the accumulated supply of
purchased soles and heels.
We want our employees to know in advance what the situation will be in the event
they strike.
INTERNATIONAL SHOE COMPANY 921
the same day (June 25) representatives of the Union and management met and
at this time the Union stated that all employees would be available and ready
to work on June 27 under "conditions" existing "at the time of the lockout."
The Respondent, however, refused to open the plant doors and return the em-
ployees to work until it was assured of no further work stoppages by the execu-
tion of the contract tentatively agreed upon June 10, supplemented by an agree-
ment allowing employees coerced into joining the Union after June 1, 1949, an
opportunity to withdraw therefrom. The union negotiators promised there
would be no further strikes, but would not agree to the supplementary clause.
This was not satisfactory to the Respondent. The next day both parties re-
iterated their positions. Thereafter, they held meetings with the United States
Mediation Commissioner in attendance on July 11, 19, and 26, 1949. At the first
of these meetings, the union representatives agreed to submit for ratification a
supplemental clause that would permit employees who had joined the Union
after June 10, 1949, a limited opportunity to withdraw therefrom. Neither this
provision nor one agreed to at the July 19 conference extending the date to June
15 was ratified by the Union, but an escape clause effective after June 18 as
agreed to by the conferees on July 26, was ratified and, on July 28, the contract
with its supplement was executed by the parties, and, as above found, the plant
was reopened on or about August 1, 1949.
B. Contentions of the parties; conclusions
1. The alleged lockout
It is argued by the General Counsel that the Respondent by closing its plant
on June 22 and keeping it closed thereafter until August 1 discriminatorily
locked out the employees. It is the contention of the Respondent that the plant
was closed and remained closed as a result of the work stoppages on June 21 in
furtherance of unfair labor practices on the "part of employees and the Union,"
and as the operations of the plant departments were interdependent, Respondent
owed no duty to return the employees to work at least until it had been safe-
guarded against further stoppages by an adequate contract with the representa-
tive of the employees.
The Union, as the authorized and acting bargaining agency for the employees,
must accept responsibility for the work stoppages of June 21, and I so find.
Certainly, the Respondent was justified in stopping its presses and closing its
doors after the third shift failed to report for work as per schedule at 11: 40 p. in.
on June, 21, as the pressroom third shift was the only production group working
in the plant through the early morning hours. While there is uncontradicted
evidence that employees of the various departments reported for work at the
plant later in the morning of June 22 and found the doors closed, there is no
evidence that at that time a demand was made through the Union or otherwise
that the doors be opened. The record also discloses that many of the third shift
pressroom employees appeared at the plant on the evening of June 22, but other
than the appearance at the plant, management had no information that this
shift had abandoned its plan, announced through the Union on the previous day,
not to work with nonunion employees Franklin and Lowe.7
I find, as contended by the Respondent, that the functions of the various de-
partments in the plant were so interdependent that Respondent had to rely on
its various shifts functioning as per schedule in order to operate economically,
and that it was justified in not starting its presses and resuming operations
7 The record discloses that neither Franklin nor Lowe had in fact joined the Union by
June 22 Whether they joined thereafter does not appear
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until it had adequate assurance that the employees of all departments and all
shifts therein would be on hand when needed, so that there could be orderly
operation s
As above found, on June 25 the Union notified the Respondent that the em-
ployees on all shifts in the various departments were ready to return to work,
and also promised management that there would be no further interruption
of production by work stoppages. Was this assurance by the employees' recog-
nized representative adequate or, under the circumstances, was the Respondent,
as it contends, within its legal rights in insisting that the tentative agreement
(containing a no-strike and no-lockout provision), supplemented by a limitation
to the maintenance-of-membership clause, be actually signed by the parties before
it would open its plant? -
This record convinces me that management was entitled to something more
convincing than oral assurance from union officials that there would be no
more work stoppages. The Union, in effect, had disclaimed authorization or
even responsibility for the work stoppages of June 21 because employees in
the trimming and packing department, and in the pressroom, refused to work
with nonunion employees. Nevertheless, management knew that the Union was
engaged in a campaign for 100 percent union membership among the Respond-
ent's production and maintenance employees because the Respondent would not
agree to a union-shop clause in the tentative contract. For over 6 years the
parties had apparently worked amicably under the terms of written contracts.
The only serious friction-that in the summer of 1941--developed when there
was no current signed agreement. I find that it was in the interests of both
the Union and the Respondent, before continued normal plant operations could
be assured, to have the rights and obligations of management and the employees-
including a covenant prohibiting strikes and lockouts-settled by a formal
signed contract.
The General Counsel argues, however, that the Respondent's insistence of an
escape clause was "unseasonable, retaliatory, and disclosed an intent to discipline
the Union" for past conduct, thereby discouraging membership in the Union.
But the Respondent was entitled to be realistic It had opposed a union-shop
provision in the prior negotiations because it was not in favor of compelling its
employees to belong to a union Nevertheless, before the conti act it had agreed
to, providing only for maintenance of membership, had been signed by the Union,
new developments convinced it that employees were being coerced into joining
the Union. I think the Respondent was not only entitled to raise this newly
developed issue but also to have established in the contract that it did not
condone such conduct. Moreover, if the Union, using such tactics, secured 100
percent membership before signing a contract, it would have circumNented the
Respondent and secured a union shop in everything but the name. This is not
to say, or imply, that a union-shop clause in the contract would have been illegal,
or that it normally was any business of the Respondent how the Union secured
its members. But, when an employer has agreed to a union-security provision
and then before the contract is executed by the union, has grounds to believe
that the Union is forcing employees into its organization through the medium of
strikes, it is entitled to have the newly arisen issue settled. Furthermore, an
escape clause to a union-security provision was nothing new between the parties.
While such clause was not in the last previous contract, and the question was
not raised by the Respondent in the 1949 negotiations until June 25, such a
provision had appeared in all previous contracts save the first one executed
in 1942.
s Bakerman Shoe Corporation , 19 NLRB 820; Link-Belt Company, 26 NLRB 227;
Western Printing Company, 34 NLRB 194.
INTERNATIONAL- SHOE COMPANY 923
I therefore find, in view of the entire record, that the Respondent did not
lock out its employees in June and July 1949, and was justified for business
reasons in not opening its plant until, by contract agreement with the representa-
tive of its employees, it had reasonably stabilized the continuous and orderly
operation thereof ; and that the clause in the contract permitting employees who
joined the Union on June 18, 1949, or thereafter limited opportunity to withdraw
therefrom was reasonable and not a retaliatory move against the Union.
2. The alleged refusal to bargain
It is alleged in the complaint and denied in the answer that the activities of
the Respondent on and after June 21, 1949, as above set forth, constituted a
refusal to bargain.
The Respondent admits and I find, as alleged in the complaint, that during all
material times herein the Union has been and now is the exclusive representative
for collective bargaining of all the Respondent's employees in an appropriate
unit consisting of all production and maintenance employees in the Hannibal
plant, excluding clericals, supervisors, guards, and professional employees as
defined in the Act.
The General Counsel argues that the insistence by the Respondent of an escape
clause in the contract was a refusal to bargain because it was retaliation against
the Union and encroached upon the Board's authority. As above found, the
theory that the Respondent's action was retaliatory is rejected. Neither do I
think it was an attempt to usurp the Board's functions. The new issue was
injected into the dealings of the parties as a result of, not the Respondent's,
but the Union's activities, or at least activities of employees for which the Union
must accept responsibility as their exclusive statutory representative. As a
matter of reasonable collective bargaining, the Respondent was entitled to have
the new complication clarified and settled. I therefore find that the Respondent
did not refuse to bargain with the Union as alleged in the complaint.
3. The alleged interference
The General Counsel maintains and the Respondent denies that Superintendent
Hawkins' June 7 and June 24 letters, as well as his statement to the union com-
mittee on June 21 that the Respondent was withdrawing its acceptance of the
maintenance-of-membership provision in the contract, constituted interference,
restraint, and coercion of the employees' rights in violation of Section 8 (a) (1)
of the Act.
As previously found, Hawkins' statement on June 21 and that portion of his
letter of June 24 relating to the contract was merely notification to the employ-
ees that, in view of the strike developments, additional negotiations were
necessary. Hawkins' June 7 letter was obviously intended as a report to the
employees of the negotiations that were then pending, and to answer state-
ments distributed in the Union's circulars regarding the negotiations, seniority,
and a strike vote. While ignoring their representative and going directly to
the employees during bargaining negotiations might be evidence supporting a
refusal-to-bargain allegation, it is not so alleged or contended in this case. I
do not think, under the circumstances here revealed, that the June 7 letter
constitutes independent interference by the Respondent. The information con-
tained in the letter dovetails closely with the actual negotiations that took
place up to that time. Although Hawkins also stated that in the event of a
strike INS would get its soles and heels from other sources 4fter its "several
weeks" supply was exhausted, and again referred to this probability in his
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 24 letter, I cannot say such statements constituted a threat of reprisal
against the employees. Any plant closed by a strike needs some period of read-
justment before it can reopen. The Hannibal plant occupied a very peculiar
position. Apparently its sole function was to supply INS' numerous shoe fac-
tories with rubber heels and soles. If the Hannibal plant closed and the
supply of heels and soles became exhausted, INS would necessarily have to
obtain its supply from other sources or seriously handicap its main manu-
facturing business.'
I find therefore that by the above acts and statements of Hawkins, the
Respondent has not interfered with, restrained, or coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Local 198, United Rubber, Cork, Linoleum & Plastic Workers of America,
CIO, is a labor organization within the meaning of Section 2 (5) of the Act.
2. International Shoe Company is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
3. International Shoe Company, the Respondent herein, has not engaged in
unfair labor practices within the meaning of Section 8 (a) (1), (3), or (5) of
the Act.
[Recommended Order omitted from publication in this volume.]
- 8 The record fails to disclose whether the supply on hand was exhausted during the
lockout period from June 25 to August 1 But whether the supply did hold out or whether
the INS during that peiiod had to reinforce its stock by purchases from other sources is
not too material here. There is nothing to indicate that Hawkins' statement in each of
his June letters as to what might happen in the event of a prolonged strike was a mis-
statement, or even an exaggeration.
W. S. PONTON , OF N. J . INC. and OFFICE EMPLOYEES INTERNATIONAL
UNION LOCAL 32, AFL , PETITIONER . Case No. 2-RC-2606. March
26,1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Lloyd S. Greenidge, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
93 NLRB No. 152.