United Shoe Machinery Corp., Inc.

National Labor Relations Board - Board Decisions

Nov 2, 1951

96 N.L.R.B. 1309 (N.L.R.B. 1951)

UNITED SHOE MACHINERY CORPORATION, INC. 1309
Company control over the layoff and reemployment of employees, and the fact
that the record fails to disclose that the Union ever objected to the adoption of
the new policy in'January 1949 the undersigned does not believe it would effec-
tuate the purposes of the Act to base a finding of refusal to bargain on this
action of the Company.
Conclusion
Upon a review of the entire record, the undersigned concludes and finds that
the General Counsel has not established by a fair preponderance of the credible
evidence that the Respondents have engaged in unfair labor practices within
the meaning of Section 8 (a) (1) and (5) of the Act. The undersigned will
therefore recommend that the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondents are engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. Amalgamated Clothing Workers of America, CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. The Respondents have not engaged in unfair labor practices within the
meaning of Section 8 (a) (1) and (5) of the Act.
Recommendations
On the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the complaint
herein be dismissed in its entirety.
UNITED SHOE MACHINERY CORPORATION, INC., G. R . BROWN, PRESIDENT,
UNITED SHOE MACHINERY CORPORATION, INC., QUARTER CENTURY
CLUB OF TFIE UNITED SHOE MACHINERY CORPORATION, AND W. W.
CROSS & COMPANY, INC. and LOCAL 3605, UNITED STEEL WORKERS OF
AMERICA, CIO. Case No. 1-CA-811. November 2, 1951
Decision and Order
On June 22, 1951, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto.' Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting
brief.
1In accordance with a stipulation of the parties, filed on July 16, 1951, the Intermediate
Report is hereby corrected to reflect the facts agreed to in the stipulation. These correc-
tions, however, do not affect our ultimate 'disposition of this case.
96 NLRB No. 197.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The request of the Respondents for oral argument is hereby denied,
as the record, including the brief and exceptions, adequately presents
the issues and positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the brief and exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent that they are consistent with
our findings, conclusions, and order hereinafter set forth.
The relevant facts giving rise to this proceeding are substantially
as follows. In May 1926, employees of United Shoe Machinery Cor-
poration, Inc., herein called United, organized the Quarter Century
Club of the United Shoe Machinery Corporation, Inc., herein called
the Club, as a nonprofit corporation under the laws of Massachusetts
to "promote good fellowship among those [employees] who have the
common bond of long service." Supervisors played a large part in the
formation of the Club; they have also taken an important role in its
administration. The Club has been almost wholly financed by United;
business of the Club is transacted on United's time and property; and
United furnishes the Club with free stationery, and clerical and secre-
tarial service.
Shortly after organization of the Club, in September 1926, the execu-
tive committee of United's board of directors passed a resolution au-
thorizing the president of United, "in his discretion," to present 10
shares of stock in United to any employee of United or of any wholly
owned subsidiary of United who completed or will hereafter com-
plete "25 years of service." As a matter of policy, the president of
United has consistently followed the practice of awarding 10 shares
of stock to those employees whose service met the requirements of the
bylaws of the Club, as interpreted by the Club's trustees in their elec-
tion of applicants for membership.
As to acquisition of membership, so far as pertinent, the Club's by-
laws provide in substance : (1) "any person in the employ of
United . . . upon making application and payment of admission
fee . . . may become a member provided such persons shall . . . have
been continually in the service of the United . . . for twenty-five (25)
years"; (2) the word "service" shall be understood to mean ". . . in
the actual active employ"; (3) service with any wholly owned sub-
sidiary corporation "shall be deemed service with" United; (4) the
Club's "Board of Trustees shall have the right, whenever, in the opin-
ion of the Trustees, it is advisable so to do, to waive intervals in service
caused by war service"; (5) a "person whose service has terminated
UNITED SHOE MACHINERY CORPORATION, INC. 1311
prior to the completion of twenty-five years on account of reduction
in help, and through no fault of his, and who is subsequently re-
employed, shall become eligible upon the completion of 25 years active
actual service ..." subject to specified conditions not pertinent here;
and (6) "all questions as to length, continuity, or termination of serv-
ice of an employee, so far as relates to membership in this organiza-
tion shall . . . be decided by the Board of Trustees, the decision of
the majority of whom shall be final."
Both the stock and membership in the Club were denied, under cir-
cumstances hereinafter set forth, to Edward Sebastian, an employee
of W. W. Cross & Company, Inc., a wholly owned subsidiary of
United, herein called Cross, who participated in a 13-week strike in
1946 during his twenty-fifth year of continuous service.
Sebastian began his employment with Cross in October 1921, He
joined Local 3605, United Steel Workers of America, CIO, herein
called the Union, in 1945, and was a member of the local's bargaining
committee when the Union negotiated a contract with Cross in
February 1945. In violation of a no-strike clause of that contract,
the Union went out on strike at Cross in January 1946. The strike-
was settled and the employees returned to work in April 1946. As,
part of the strike settlement, Cross agreed that "all employees [shall],
return to work without discrimination because of their strike or union,
activities" and that "strikers will receive such vacations and vaca-
tion pay as they were entitled to, as if no strike has taken place."
At the conclusion of the strike, Sebastian returned to work. He has
been employed by Cross since the strike.2
In February 1947, in a conversation with C. W. Howard, Cross'
plant manager, Sebastian inquired about Club membership. Howard
then stated that he would investigate the matter. In reply to an
inquiry from Howard, the Club sent Howard a letter, dated May 6,
1947, advising that Sebastian was not eligible to membership in the
Club because of a break in his employment in 1946. Shortly there-
after, about in May 1947, Cross' personnel manager showed the Club's
letter to Sebastian. Thereafter, in about July 1947, in answer to an
inquiry from the Union, the Club advised the Union that Sebastian
was out on strike in 1946 and was ineligible to membership because he
did not meet the Club's requirement for continuous service.
On September 18, 1950, Sebastian wrote a letter to G. R. Brown,
president of United, in which Sebastian requested delivery of 10
shares of United stock. In a reply letter, dated October 2, 1950,
2 We agree with the Trial Examiner that Cross condoned the breach of contract by
reinstating Sebastian and that the denial of stock to Sebastian cannot be justified by the
fact that Sebastian participated in the strike.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown in substance advised Sebastian that the strike interrupted his
service, that he did not have the 25 years of "continuous" service
required for Club membership, and that therefore he was not en-
titled to the stock.
Thereafter, in December 1950 and January 1951, the Union, which
had won a consent election at the Cross plant in 1945, requested United
and Cross to bargain "on the policy and method of distributing
bonuses in the form of 10 shares of stock each to employees with 25
years or more of service" in United or any of its wholly owned sub-
sidiaries. In January and February 1951, counsel for United and
Cross replied that bargaining on this subject matter should be post-
poned pending disposition of unfair labor practice charges, then on
file with the Board, with respect to the denial of Club membership and
stock to Sebastian, and pending disposition of an appeal in the Massa-
chusetts Supreme Court from a lower court decision dismissing a
petition, theretofore filed by Sebastian, to restrain the Club from
barring him from membership .3
The complaint in this proceeding alleges in substance that: (1)
United and Cross constitute a single employer; (2) the Club is
an agent of United and Cross ; (3) the Club has refused to admit
Sebastian to membership since on or about March 1947; (4)
United, Cross, and Brown, president of United, have refused to grant
Sebastian 10 shares of stock since on or about October 2, 1950; and
0) the Respondents have refused to bargain with the Union
;since on or about January 16, 1951. The complaint further alleges
=that United, Cross, the Club, and Brown violated Section 8 (a) (1)
~and (3) by refusing to grant the stock to Sebastian and by refusing
-to admit him to membership in the Club; and that, by refusing to
bargain, the "Respondents" violated Section 8 (a) (5) of the Act.
1. Section 10 (b) of the Act, as amended, provides, in part, that
"no complaint shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the charge." As stated
above, the Club denied Sebastian membership in 1947 4 However, no
charge was filed until 1950, long after the expiration of the 6-month
period of limitation. Assuming, without deciding, that the Club's
denial of membership to Sebastian in 1947 was violative of the Act,
we do not regard such conduct as being so in the nature of a continuing
violation as to permit the finding of a violation within the limitation
2 Subsequently the Supreme Court of Massachusetts sustained the action of the lower
court, reasoning that determination of Sebastian ' s eligibility was entirely that of a majority
of the Club ' s trustees and that the law did not require such an organization , purely
social in character, to admit to membership every qualified person who makes application.
4 Thereafter , so far as appears , Sebastian made no effort to obtain membership in the
Club, and the Club did nothing which we regard as a refusal or denial of Club membership
with respect to Sebastian.
UNITED SHOE MACHINERY CORPORATION, INC. 13 1 3
period contained in Section 10 (b) of the Act.5 Accordingly, the
complaint will be dismissed insofar as it alleges that the Respondents
violated the Act by refusing to admit Sebastian to membership in
the Club.
2. As stated above, the complaint alleges in substance that United,
Cross, and Brown, president of United, refused to grant Sebastian
10 shares of stock on or about October 2, 1950, and that the Respond-
ents thus violated Section 8 (a) (1) and (3) of the Act.
The Trial Examiner found that "The Club, as an instrumentality
or agent of United . . . determined whether or not an employee
should receive the ten (10) shares of stock"; and that "the action or
conduct of the Club hereafter found to be violative of the Act, is, by
reason of the relationship between United, Cross and the Club, also
the violative conduct of United and Cross." The Trial Examiner also
found that Sebastian was not admitted to the Club and was refused
the stock "not merely because there had been a break in service but v
because of the nature and purpose of the interruption-participation
in the strike." He concluded, for the reasons detailed in the Inter-
mediate Report, that by refusing to grant Sebastian the stock and'
causing him to forfeit 24 years of service credit, the Respondents
penalized Sebastian for engaging in strike activity and discriminated
against him in violation of Section 8 (a) (1) and (3) of the Act.
We believe that it is unnecessary to decide whether the Club acted
as an agent of United, in order to determine whether the Respondents
acted unlawfully in denying Sebastian the stock. We agree with the.
Trial Examiner that the Club refused to admit Sebastian to member-
ship "not merely because there had been a break in service but because
of the nature and purpose of the interruption-participation in the.
strike." The Club's practice was not to regard a break in service as,
forfeiting previously acquired tenure if the break was due to illness,
war service, termination, or layoff for lack of work under certain
specific conditions not pertinent here, or absence with leave of man-
agement. In such cases, applicants for membership were credited
with their service before and after their absence to make up the 25,,
years' continuous service required. The Club's practice was dis-
criminatory as to strikers because the Club treated an absence due to
a strike as a break in continuous service and did not regard other
See Bonwit-Teller, Inc , 96 NLRB 608 , holding that the discontinuance of the process-
ing of wage reviews, assuming that the initial discontinuance was violative of the Act,
was not a continuing violation so as to bring it within the 6-month limitation period of
Section 10 (b). (Although dissenting on this point, Members Houston and Styles deem
themselves bound by the holding therein .) See also the Childs case , 93 NLRB 281, where
the Board treated an illegal discharge , which occurred more than 6 months before the
filing of a charge , as not a continuing violation of the Act and thus barred under Section
10 (b).
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absences as working a forfeiture. The Respondents contend that
there was no unlawful discrimination against Sebastian because the
Club, except in one type of situation, followed a uniform practice of
invoking its requirement of continuous service in all cases where an
employee had voluntarily ceased work. However, as indicated, the
Club did not invoke this bylaw provision in cases where the employee,
voluntarily or involuntarily, left work to perform war service. Thus,
the practice vis-a-vis strikers cannot be justified on the basis of
whether the absence from work was voluntary or involuntary.
Moreover, even assuming that the Club did not invoke its bylaw
relating to the requirement of continuous service against Sebastian
for the purpose of restraining or coercing employees in the exercise
of their statutory right to participate in the concerted activity of a
strike, we further find that the Club's action, in denying Sebastian
membership in the Club, necessarily had a tendency to restrain,
coerce, and discourage employees from engaging in that form of
union or concerted activity. United is an old company having been
established before the turn of the century; and there undoubtedly
are many employees on its own payroll or on that of subsidiary com-
panies who have built up long service records. Forfeiture of Club
membership or the 10 shares of stock, which have a current market
value of $420 in the aggregate, might well restrain employees, par-
ticularly those within fairly close range of the 25 years' service mark,
to refrain from strike action, a normal concerted or union activity.e
As the Club refused to admit Sebastian to membership because he
participated in a strike, United unlawfully discriminated against
Sebastian in denying him the stock, without regard to whether the
Club acted as agent for United, because United knowingly adopted
as its own the Club's discriminatory decision rejecting Sebastian for
Club membership as the basis for denying Sebastian the stock.
Accordingly, we find that the award or withholding of the stock
related to a term or condition of employment within the meaning of
Section 8 (a) (3) of the Act and that, by denying the stock to Sebas-
tian, the Respondents discriminated in regard to a term or condition
of employment to discourage membership in the Union, in violation
of that Section of the Act. We further find that the Respondents,
@ See, for example, St. Marge Sewer Pipe Co., 54 NLRB 1226, enfd. In 146 F. 2d
995 (C. A. 3), in which an employer was held to have discriminated against strikers by
-regarding them as having quit and taking them back as new employees without seniority.
See, also, Republic Aviation Corporation, 51 NLRB 1186, 142 F. 2d 193, 324 U. S. 793
(discharge of union stewards, for wearing union steward buttons in plant in disregard of
illegal company rule, held violative of Section 8 (3), although the company's interdiction
-against the wearing of such buttons was not "a part of its offense" against the union.)
Also, compare cases, such as Mid-Continent Petroleum, 54 NLRB 912, and Standard Oil,
X91 NLRB 783, in which an employer has been held to have unlawfully discharged striking
employees mistakenly believed to have participated in violence or other misconduct in
connection with a strike.
UNITED SHOE MACHINERY CORPORATION, INC . 1315
by such conduct, interfered with, restrained , ,and coerced employees
in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8 (a) (1) thereof. Whether such conduct be
viewed as a violation of Section 8 (a) (1) or (3), effectuation of the
policies of the Act requires the same remedy.?
3. For the reasons stated in the Intermediate Report, we agree with
the Trial Examiner insofar,as he found that the Respondents, United,
Cross, and Brown, unlawfully refused to bargain collectively with the
Union, in violation of Section 8 (a) (5) and (1) of the Act. How-
ever, the Trial Examiner also recommended that there be entered
a bargaining order which would run against all the Respondents in
this proceeding. We shall dismiss the complaint insofar as it alleges
that the Club violated Section 8 (a) (5) of the Act.
4. As part of the remedy, the Trial Examiner recommended that
the Respondents be required to restore on the individual employment
records of all employees of United and Cross who participated in
the January 1946 strike, and from whose records continuous service
credit for the period before said strike has been eliminated because
of participation in said strike, credit for all continuous service ren-
dered by said employees before and after said strike, and to compute
such service as continuous service without regard to absence from
work occasioned by said strike. While Member Murdock would
adopt this recommendation, he would limit it to Sebastian, because
the allegations of the complaint relating to the stock and Club mem-
bership are limited to Sebastian and it does not appear that the
General Counsel actually litigated a claim of discrimination
against other employees as to the service credits or sought the remedy
recommended. Cf. Newspaper and Mail Deliverers Union,-93 NLRB
419; Rockaway News Supply Co., 94 NLRB 1056. The remaining
Board Members believe that the recommended order of the Trial
Examiner will effectuate the policies of the Act, and-that the cases
cited by Member Murdock are distinguishable. In those cases, in-
dividuals not named in the complaint were not afforded protection
by the Board 's remedial order because they were not identifiable with-
out further litigation. Here , the strikers may be ascertained by
resort to company records.
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 Respondents, United Shoe
Machinery Corporation, Inc., and W. W. Cross & Company, Inc.,
As the Club did not refuse to grant stock to Sebastian , we shall dismiss this allegation
of the complaint with respect to the Club.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their officers, agents, successors, and assigns, and G. R. Brown, his
agents, successors, and assigns, shall':
1. Cease and desist from :
(a) Discouraging membership in Local 3605, United Steel Workers
of America, CIO, or in any other labor organization of their em-
ployees, by refusing to award shares of capital stock or in any other
manner discriminating against any employee of United Shoe Ma-
chinery Corporation, Inc., or W. W. Cross & Company, Inc., in regard
to hire or tenure of employment or any term or condition of
employment.
(b) Refusing to bargain collectively with United Steel Workers
of America, CIO, as the exclusive representative of the employees of
W. W. Cross & Company, Inc., with respect to the "policy and method"
of distributing capital stock as a bonus to employees for services
rendered.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Local 3605, United Steel
Workers of America, CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Restore on the records of all employees of United Shoe Ma-
chinery-Corporation, Inc., and of W. W. Cross & Company, Inc., who
participated in the 13-week strike commencing in January 1946, and
from whose records continuous service credit for the period before
said strike has been eliminated because of participation in said strike,
credit for all continuous service rendered by said employees before
said strike and thereafter, and compute such service as continuous
service without regard to absence from work occasioned by said strike.
(b) Make Raymond Sebastian whole for any loss or diminution
in his seniority or other rights or privileges, which he suffered as a
result of the discrimination against him, by granting to him 10 shares
of the common capital stock in United Shoe Machinery Corporation,
Inc.
3. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Steel Workers
of America, CIO, as the exclusive representative of the employees of
UNITED SHOE MACHINERY CORPORATION, INC. 131-7
W. W. Cross & Company, Inc., with respect to the "policy and method"
of distributing capital stock as a bonus to employees for services ren-
dered, and if an understanding is reached, embody such understand-
ing in a signed agreement.
(b) Post, at their respective places of business, copies of the notice
attached hereto and marked "Appendix A." s Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by United Shoe Machinery Corporation, Inc.,
W. W. Cross & Company, Inc., and G. R. Brown, be posted by each of
them immediately upon receipt thereof and maintained by them for
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to insure that
the notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps each
has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges that (1) the four Respondents vio-
lated Section 8 (a) (1) and (3) of the Act by refusing to admit
Sebastian to membership in the Club; (2) the Club violated Section
8 (a) (1) and (3) of the Act by refusing to grant stock to Sebastian;
and (3) the Club refused to bargain collectively within the meaning
of Section 8 (a) (5) of the Act.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that :
WE WILL NOT, by withholding benefits to which they may other-
wise be entitled, including the award of stock bonuses, or in any
other manner, discriminate against the employees of UNITED
SHOE MACHINERY CORPORATION, INC., or W. W. CROSS & COMPANY,
INC., for exercising any of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act, as amended.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization,
to form labor organizations, to join or assist LOCAL 3605, UNITED
s In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted before the words "A Decision and Order" the words "A Decree of the
United States Court of Appeals Enforcing."
974176-52-vol 96-84
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STEEL WORKERS OF AMERICA, CIO, or arty other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and
to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as authorized in Section 8 (a) (3)
of the Act.
WE WILL DELIVER forthwith to Edward Sebastian ten (10)
shares of the common capital stock in United Shoe Machinery
Corporation, Inc.
WE WILL BARGAIN collectively, upon request, with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
including bonus awards, hours of employment or other condi-
tions of employment, and if an understanding is reached, embody
such understanding in a signed agreement. The bargaining
unit is :
All production and maintenance employees of W. W. Cross
& Company, Inc., at its Jaffrey, New Hampshire, plant, ex-
clusive of executives, foremen, tack makers, scalers, watch-
men, guards, office, and clerical employees, and all super-
visors as defined in the Act.
All our employees are free to become or remain members of the
above-named union or any other labor organization.
UNITED SHOE MACHINERY CORPORATION, INC.,
Employer.
By ----------------------------- --------- -------(Representative ) (Title)
Dated--------------------
W. W . CROSS & COMPANY, INC ., Employer.
By ------------------------------ ----------------
(Representative ) (Title)
Dated--------------------
G. R. BROWN, Employer.
By ----------------------------- ----------------
(Representative ) (Title )
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
UNITED SHOE MACHINERY CORPORATION, INC. 1319
Intermediate Report
STATEMENT OF THE CASE
Upon a second amended charge filed February 21, 1951,1 by United Steel
Workers of America, CIO,' the General Counsel of the National Labor Relations
Board, by the Regional Director for the First Region (Boston, Massachusetts),
issued a complaint dated May 4, 1951, against the following named Respondents :
United Shoe Machinery Corporation, Inc., hereinafter referred to as United ;
G. R. Brown, its president ; Quarter Century Club of the United Shoe Machinery
Corporation, Inc., hereinafter referred to as the Club ; and W. W. Cross &
Company, Inc., hereinafter referred to as Cross. The complaint alleged that
Respondents had engaged, and were engaging, in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1), (3), and (5), and Sections
2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136,
29 U. S. C., Supp. 1, Sec. 141 et seq., hereinafter referred to as the Act. Copies
of the complaint, charge and amended charges, and notice of hearing were duly
served on all Respondents.
With respect to the unfair labor practices, the complaint alleged, in substance,
(1) that on or about, and since, October 21, 1950, United, Cross, and Brown
have refused to grant Raymond Sebastian, an employee of Cross, 10 shares of
common stock in United and have since that time refused to grant him member-
ship in the Club, for the reason that said Sebastian joined or assisted Local
3605, United Steel Workers of America, CIO, hereinafter called the Union, or
because he had engaged in other concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection; (2) that on or about, and
since, January 16, 1951, United and Cross refused to bargain collectively with
the Union in respect to rates of pay, wages, hours of employment, or other con-
ditions of employment.
Respondents' joint answer, duly filed, denied the commission of any unfair
labor practices and specifically pleaded, in substance, that 10 shares of stock
in United, and membership in the Club, were granted to employees of United
or Cross upon the completion of 25 years of continuous active service with
United or Cross ; that Sebastian, in January 1946, had gone out on strike with
his fellow members of the Union for a period of approximately 13 weeks and
had thereby interrupted his active continuous employment by said Respondents ;
that the 10 shares of stock and membership in the Club had been denied
Sebastian because of the said 13 weeks' break in his service with Cross in 1946.
The answer further pleaded that (1) Sebastian had sought relief similar, in
part, to that described in the complaint herein, in a Superior Court of Massa-
chusetts and had there been denied said relief and that the decision 'of said
Superior Court had been affirmed upon appeal by the Supreme Judicial Court
of Massachusetts on March 7, 1951; (2) the strike in which Sebastian
participated was in violation of a "no strike" clause of the existing bargaining
contract with the Union. Respondents admitted that since January 16, 1951,
United has refused to bargain collectively on the policy and method of dis-
tributing bonuses in the form of 10 shares of stock to each employee with 25
years or more of service in United, or any of its wholly owned subsidiaries,
but specifically pleaded that it has not refused to bargain with respect to any
-other matters.
Pursuant to notice, a hearing was held at Boston, Massachusetts, on May 28,
1951, before the undersigned Trial Examiner. The General Counsel, Respond-
1 The original charge was filed November 3, 1950.
2 The caption appears as amended at the hearing.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents, and the Union were represented by counsel. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence pertaining
to the issue was accorded all parties. Rulings reserved at the hearing are
disposed of in accordance with the findings hereinafter made. Since the close
of the hearing, briefs have been received from the General Counsel, Respondents,
and the Union, all of which have been duly considered.
Upon the entire record in the case, I make the following :
FINDINGS OF FACT
1. THE BUSINESS AND ACTIVITIES OF RESPONDENTS
United Shoe Machinery Corporation, Inc., of which Respondent G. R. Brown
is president, is a corporation organized under the laws of the State of New
Jersey. It operates a number of plants located in various parts of the United
States and is engaged in the manufacture and sale and distribution of shoe
machinery and parts, and the repair and service thereof. It maintains its
principal offices at Boston, Massachusetts, and another place of business at
Beverly, Massachusetts. Its annual sales to destinations outside the Common-
wealth of Massachusetts are valued in excess of $1,000,000. Its annual pur-
chases of raw material from points outside Massachusetts are valued in excess
of $1,000,000.
W. W. Cross & Company, Inc., is a corporation organized under the laws
of the State of Maine, and has its principal plant in Jaffrey, New Hampshire,
where it is engaged in the manufacture, sale, and distribution of tacks, nails,
and related products. It is a wholly owned subsidiary of United Its annual
purchases exceed $500,000, substantially all of which are purchased and trans-
ported in interstate commerce from points located outside the State of New
Hampshire. It ships approximately 90 percent of its finished products, valued
at approximately $2,000,000, to destinations located outside the State of New
Hampshire.
By reason of the foregoing, I find that both United Shoe Machinery Corpora-
tion, Inc., and W. W. Cross Company, Inc., are engaged in commerce within the
meaning of the Act.
As previously noted, Cross is a wholly owned subsidiary of United. In addi-
tion, both are operated with common managerial control. Thus, C. H. Howard,
the president, and W. M. Kemp, treasurer of Cross, are respectively the treasurer
and secretary of United. Four of the five-member board of directors of Cross
are officers and members of the board of directors of United. The evidence is
undisputed that the labor policy of Cross is determined by the executive manage-
ment of United and the latter's board of directors. I find that the operations of
United and Cross are one closely integrated enterprise and that they constitute
a single employer within the meaning of the Act a
The Club is a corporation organized in 1926 under, and existing by virtue of,
Chapter 180 of the General Laws of Massachusetts. Pursuant to this law,
corporations "may be formed for any civic, educational, charitable, benevolent,
or religious purpose." The Club's purpose "is to bring about better acquaintance
and to promote good fellowship among those who have the common bond of
long service with [United]." Qualifications for membership are discussed in
subsequent portions of this Report. United provides and maintains a clubhouse
for members of the Club, who likewise, without charge, enjoy the privileges and
3 Hill Transportation Co., et al., 75 NLRB 1203, enfd without opinion, December 12, 1948
(C. A. 1) ; Federal Telephone and Radio Corporation, 63 NLRB 947; N. L. R. B. v. Federal
Engineer-mg Company, 153 F 2d 233 (C. A. 6) ; N. L. R. B v. Condenser Corporation of
America, 128 F. 2d 67 (C. A. 8).
UNITED SHOE MACHINERY CORPORATION, INC. 1321
facilities of the "Athletic Association ." Annual meetings of club members are
held in June of each year followed by a dinner and an outing , the cost of which
is paid by United. In 1949, United provided approximately $4,500 for such an
outing. The Club publishes and circulates the "Quarter Century Club News,"
the cost of which in 1950 was approximately $4,100, all of which was paid for
by United . In 1950, the Club provided decorative pins to its members at a cost
of approximately $1,500 , the amount of which was paid by United . In toto,
United contributed , directly , the. sum of $9,240.52 to the Club during the fiscal
year ending February 28, 1951. Similar direct contributions have been made
over the years in substantially the same amounts.
Quarterly meetings of the Club 's trustees are held, without charge, in the
office of United in Boston. They are attended by the Club 's officers and trustees,
practically all of whom work in the district offices and branch factories main-
tained and operated by United and Cross . The trustees are given time off to
attend such meetings and no deduction is made from their pay by either Cross
or United for attendance at such meetings , or the time spent in traveling. Sta-
tionery and clerical and secretarial service are all provided by United without
expense to the Club.
The complaint alleges, and Respondents by their answer have denied, that
the Club is an agent of United and Cross. In its brief, Respondents argue that
"since the [ Club ] is not the agent of [United or Cross], its refusal to admit to
membership those employees whose period of continuous actual active service
has been interrupted by strike time is not the act of United or [Cross]." I
conclude that it is unnecessary for me to determine whether the Club was, or is,
in every legal concept the agent of United or Cross. While Section 2 (2) of the
Act defines an employer to include "any person acting as an agent of an em-
ployer , directly or indirectly ," it does not preclude a finding on the record made
herein that the conduct of the Club is, nevertheless , the conduct of United and
Cross and attributable to them. Certainly the fact that the Club is a separate
legal entity does not foreclose such a conclusion here any more than in deter-
mining the single-employer relationship heretofore found, and by Respondents'
brief conceded to exist, between United and Cross.
Other factors , in addition to those already alluded to , compel the rejection
of Respondents ' contention that the Club 's activities and conduct are not attrib-
utable to either United or Cross and therefore beyond the jurisdiction of the
Board in this proceeding . Of the 8 persons present at the Club's organization
meeting in 1926, 5 were supervisors . Of the 22 persons who have served as Club
president since its incorporation , at least 14 have been supervisors , while at
least 3 of the 6 trustees whose terms expire in 1951, 1952, and 1953, are super-
visors. By their right to discharge employees , United and Cross have the
power, if either wanted to exercise it, of effectively controlling membership in
the Club.
At a meeting of the executive committee of the board of directors of United
held in Boston on September 8, 1926, reference was made to the fact that the
Club was being formed ; that cognizance of the movement should be taken ; and
that United should recognize long continued service by its employees in a sub-
stantial way. Accordingly , the president was authorized , in his discretion, to
give employees of 25 years ' service, 10 shares of the common stock of United.
Shortly thereafter , United tendered a dinner to members of the Club and there
gave each member of the Club 10 shares of stock, the present value of which is
approximately $420. Though the resolution of the executive committee author-
izing the president to grant such stock vested that authority in the president,
the evidence is clear , and the letter to G. R. Brown , president of United, to
Sebastian , dated October 2, 1950, specifically admits that both Brown and his
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
predecessors, "in exercising [their] discretion in making gifts of capital stock
of [United], have consistently followed the policy of making such gifts to those
employees whose service met the requirements of the by-laws of the Quarter
Century Club of [United] as interpreted by the trustees of that club in their
election of applicants to membership." Further evidence of the Club's sub-
servience to United is the provision of Article 3, Section 3 of its bylaws, undei
the authority of which membership in the Club may be forfeited by engaging
in any conduct which may reflect discredit on United.
An employer should be and is commended for endeavoring to maintain friendly
relations with its employees by providing recreational facilities and other
advantages without cost to its workmen. This, United and Cross did in the
instant case by financing, fostering, and promoting the activities of the Club,
and presumably those of the Athletic Association, and by the grant of its capital
stock. Though ostensibly made available by the Club, the facilities and rewards
were in fact provided by United, for the Club had no other source of income.
But what United gave, it could control, or take away entirely.
On the entire record, therefore, I find that the action or conduct of the Club
hereafter found to be violative of the Act, is, by reason of the relationship
between United, Cross, and the Club, also the violative conduct of United and
Cross.
IT. THE LABOR ORGANIZATION INVOLVED
Local 3605, United Steel Workers of America, CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
Sebastian was employed by Cross on October 11, 1921, and has continued in
that employment to the time of the hearing herein. He became a member of
the Union on February 12, 1945, and has maintained such membership ever
since.
As previously noted, the Club was organized in 1926 and has been in active
existence ever since. Qualification for membership in the Club is established
by Article 3 of its bylaws, which, in material part, reads as follows :
Any person in the employ of [United or Cross] upon making application
and payment of admission fee hereinafter provided for,` may become a
member of this organization provided such persons shall . . . have been
continuously in the service of [United or Cross] for twenty-five years.. . .
The Board of Trustees shall have the right, whenever, in the opinion of
the Trustees it is advisable so to do, to waive intervals in service caused by
war service... .
Membership in this organization is terminated upon the following condi-
tions or any of them :
3. By any action of the member which, in the opinion of two thirds
of the whole Board of Trustees, may reflect discredit on this organization,
or the United Shoe Machinery Corporation.
All questions as to length, continuity, or termination of service of an
employee , so far as relates to membership in this organization shall ( except
as determined by or as may be otherwise provided in these By-Laws) be
decided by the Board of Trustees, the decision of the majority of whom shall
be final.
4 The only cost of membership is an initiation fee of $ 1 ; there are no dues.
UNITED SHOE MACHINERY CORPORATION, INC . 1323
As heretofore found, United on September 8, 1926, authorized its president,
"in his discretion . . . to present to each person in the employ of [United or
Cross] . . . who has now completed or shall hereinafter complete twenty five
years of service as an employee of [United or Cross], ten (10) shares of Common
Stock in [United]." Though the foregoing resolution attached no other condi-
tion to the allotment of said stock, nor contained any authority to delegate to
any other person or corporation the duty of determining the right of any employee
to receive such stock, the president of United, and his predecessors, have "con-
sistently followed the policy of making such gifts to those employees whose
service met the requirements of the By-Laws of the Quarter Century Club of
[United], as interpreted by the Trustees of that Club in their election of appli-
cants to membership." It was, therefore, the Club, as an instrumentality or
agent of United, that determined whether or not an employee should receive the
ten (10) shares of stock.
Respondents admit that the only interruption in Sebastian's work from
October 1921 to the date of hearing, of which it complains, was occasioned by
his participation in a strike called by the Union of which he was and still is a
member.` That strike began on or about January 21, 1946, after more than 24
years of continuous service by Sebastian, and was terminated by a settlement
agreement executed on or about April 18, 1946. Relevant portions of that agree-
ment read as follows :
(1) As a basis of settlement, all employees return to work without dis-
crimination because of their strike or union activities. .. . [Emphasis sup-
plied.]
(4) Strikers will receive such vacations and vacation pay as they were
entitled to as if no strike had taken place. Employees may take time oft
with vacation pay, or may work their vacations and receive their regular
pay plus their vacation pay.
In February 1947, Sebastian requested information as to what he should do
to become a member of the Club from Mr. Howard, plant manager for Cross.
Howard replied that he would check into the matter and have an application
card sent him. Howard communicated with the Club by letter, dated March 24,
1947, and was advised that Sebastian was not eligible for membership. In
April 1947, a copy of this letter was displayed to Sebastian disclosing that mem-
bership in the Club had been denied him because of the break in his service in
1946 occasioned by the strike.
On September 18, 1950, Sebastian wrote directly to G. R. Brown, president
of United, and requested that 10 shares of stock be issued to him by reason of
his 25 years of service with Cross. On October 2, Brown replied and specifically
refused Sebastian's request for the stock for the same reason advanced by the
Club. There is no dispute that Sebastian was denied membership in the Club
and was not granted 10 shares of stock in United because he was absent from
work due to the strike.
There followed an exchange of correspondence with Cross and United, initiated
by the Union on September 9, 1950, in which the Union demanded the right to
negotiate regarding the granting of 10 shares of stock to employees. By this
correspondence, United frankly made its position clear that it would not bargain
on this subject.
6 For the background of the strike , see W. W. Cross and Company, Inc, 77 NLRB 1162,
of which proceeding all parties asked me to take official notice.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Concluding findings as to discrimination
It is the contention of Respondents that since Sebastian was absent from
work during the period of the strike, such interruption constituted a break
in the continuity of his employment so that upon his return to work he came
back, so far as his right to membership in the Club and to the shares of stock
are concerned, as a new employee without any credit for his more than 24 years'
prior service.
But it is not every lapse or interruption in service that Respondents have de-
clared to be a break in an employee's service record so as to impose a forfeiture
of previously acquired tenure in the field under consideration. Thus, the Club's
bylaws authorize the trustees in their discretion "to waive intervals in service
caused by war service." Commendable as such a waiver is, the period involved
nevertheless constitutes an interruption in the employee's active continuous em-
ployment by Respondents. Similarly, the bylaws protect employees against a
forfeiture of acquired tenure caused by a reduction in help, and the evidence is
undisputed that a lapse of more than 13 weeks occasioned by illness has never
been regarded, nor invoked, as sufficient to justify a forfeiture of the previously
acquired tenure. On such occasions, Respondents have merely deducted the
period of absence and then counted both the time before the interruption, and
after, in computing the period necessary for the acquisition of stock and club
membership. That Respondents have invoked a contrary practice against em-
ployees engaged in a strike can lead only to the conclusion that it was invoked
not merely because there had been a break in service, but because of the nature
and purpose of the interruption-participation in a strike.
No principle in the field of labor relations is more deeply rooted, or firmly
established, than the right of employees to strike. Not only is it the most effec-
tive weapon which labor can employ if industrial warfare unfortunately develops,
but its mere existence provides employees with the weight which brings into
approximate balance the power and influence exercised at the bargaining table.
To destroy that right, or to discriminate against employees because they have
exercised such right, would bring about the industrial strife which all seek to
avoid. When Congress, therefore, by the Wagner Act, established a code to
govern industrial relations and provided labor with statutory remedies not
previously possessed, it specifically declared that "nothing in this Act shall be
construed so as to interfere with, impede, or diminish in any way the right to
strike." ° And, to buttress that right, the Act makes it explicitly clear that
when employees engage in a strike, such action "is not to be construed as a re-
nunciation of the employment relation and they remain employees for the re-
medial purposes specified in the Act." N. L. R. B. v. Mackay Radio and Telegraph
Company, 304 U. S. 333, 347.7
To round out the protection afforded by the Act, the discrimination, against
which Section S (a) (3) protects employees, embraces all elements of the em-
ployinent relationship which customarily attend employment 8 Striking em-
ployees on return to work are entitled to be treated in all matters involving
"any term or condition of employment" as though they had not been absent from
work.' The elimination of the benefits resulting from seniority or prior service
of striking employees because of their absence on strike, is a penalty for engaging
e Section 13 of the Act . The amendments made by the Taft-Hartley Act of 1947 did not
curtail the right to strike under the circumstances present here
7 Section 2 (3) of the Act provides that "the term `employee' . . shall include any
individual whose work has ceased as a consequence of, or in connection with, any current
labor dispute."
8 N. L. R. B. v. Waterman Steamship Corporation, 309 U. S. 206.
ON L. R. B. v. Republic Steel Corporation , 114 F. 2d 820 (C. A. 3).
UNITED SHOE MACHINERY CORPORATION, INC . 1325
In such activity, and constitutes discrimination for engaging in strike activities
and is, therefore, illegal and violative of Section 8 (a) ' (1) and (3) of the Act.
Pointing to the rule mentioned by the Board in General Electric Company,
80 NLRB 510, that an employer "is not required under the Act to finance an
economic strike against it by remunerating the strikers for work not per-
formed," Respondents, in their brief, seek to invoke that doctrine here. The
issue in the General Electric case, however, was whether the period of the strike
should be computed as part of the "continuous service credit" in (1), the
computation of vacation and pension benefits and (2), seniority standing.
Insofar as the employer's action served to cut down the employees' vacation and
pension benefits, the Board found such action lawful, as the benefits in question
were in the nature of wages for services actually rendered, and the employer was
not obliged to finance an economic strike against itself. However, insofar as
the employer's action deprived the strikers of continuous service seniority stand-
ing, the Board found that this constituted unlawful discrimination.
No one in the instant proceeding has claimed that the 13-week period during
which Sebastian was on strike should be included in, or computed as part of,
the 25-year period under consideration. To do so would indeed lead to the result
suggested by Respondents. On the other hand, Respondents seek to impose a
penalty by throwing out completely the more than 24 years' service credit earned
by Sebastian.10 Both the rule and rationale of the General Electric decision
support the conclusion that by forfeiting the 24 years' service credit accumulated
by Sebastian, Respondents discriminated against him because of his strike activi-
ties and thereby violated Section 8 (a) (1) and (3) of the Act.
Respondents, however, contend that because the Union's contract with Cross,
effective when Sebastian and the Union participated in the strike in 1946, con-
tained a "no strike" clause, that "the strike . . . therefore, was an illegal strike
and affords the employer further ample justification for a refusal to pay
[Sebastian] based on continuous active service with the Company."
It is true that, notwithstanding what has heretofore been said about the
protection surrounding the right to strike, it is well settled that a strike which
violates a "no strike" clause in a collective bargaining agreement is not protected
by the Act. It is equally well established, however, that whatever rights or
privileges accrue to an employer when his employees strike in violation of such a
clause may be relinquished by his subsequent conduct indicating he had condoned
or waived the breach of the agreement." This, United and Cross did in the
instant case by the settlement agreement entered into with the Union on or
about April 18, 1946, when, "as' ,a basis of settlement," it was agreed by said
Respondents that all employees were to return to work without discrimination
because of their strike or union activities. "The condonation wiped the slate
clean." 12 The forfeiture of the previously acquired tenure is a separate and
distinct violation of the Act, independent of what had gone before 32
There remains for consideration on this phase of the case the defense pleaded
in Respondents' answer, that the final decree of the Massachusetts courts dis-
10 Respondents, in their brief , speak of the benefits as a "bonus" or a "gift ." Regard-
less of the nomenclature applied, it is clear that the considerations involved qre emolu-
ments of value accruing to employees from their employment relationship and are there-
fore considered to be "wages ," no less than pension and retirement benefits. Inland Steel
Co., 77 NLRB 1, enfd. 170 F. 2d 247 (C. A. 7), cert. den. 336 U. S. 960.
11 Columbia Pictures Corporation, 82 NLRB 568; B. A. Laboratories, Inc., 80 NLRB 625,
enfd. 188 F. 2d 885 (C. A. 2).
'I N. L. It. B. v. E. A. Laboratories, Inc., supra.
18 Because of the condonation pursuant to which Sebastian and all other employees were
not replaced , but instead returned to work immediately after the strike, It becomes unneces-
sary to determine whether the strike was an economic or unfair labor practice strike.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
missing Sebastian's action to enjoin the Club "from barring his election
thereto, . . . is a final adjudication of Sebastian's right in the premises.""
The contention is without merit. First, the Board was not a party to that pro-
ceeding. Furthermore, that action was a private suit to protect personal prop-
erty rights alleged to be possessed by Sebastian. The instant proceeding is in
the public interest and its purpose is to effectuate a public policy as declared by
Congress. The decisions of a State court are not binding upon the Board, which
has paramount jurisdiction over the subject matter herein 16 The Massachu-
setts case has no binding effect on, or relevance to, the instant proceeding.
C. The refusal to bargain
1. The appropriate unit ; representation by the Union
The complaint alleges, Respondents' answer admits, and I find that : (1) All
production and maintenance employees of W. W. Cross & Company, Inc., em-
ployed at its plant in Jaffrey, New Hampshire, exclusive of executives, foremen,
working foremen, tack makers, scalers, watchmen, guards, office and clerical
employees, and all supervisors as defined in Section 2 (11) of the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act; (2) on or about February 12, 1945, a majority of the
employees in the unit above described, by a secret election conducted under the
supervision of the Regional Director of the Board for the First Region, selected
the Union as their representative for the purposes of collective bargaining; (3)
at all times since February 12, 1945, the Union has been the representative for
the purposes of collective,bargaining of a majority of the employees in said unit,
and, by virtue of Section 9 (a) of the Act, has been, and is now, the exclusive
representative of all the employees in said unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment, or other con-
ditions of employment.
2. The contention of Respondents and concluding findings
Respondents' answer admits that at various times between December 29, 1950,
and January 31, 1951, the Union requested United "to bargain collectively on the
policy and method of distributing bonuses in the form of 10 shares of stock to
each employee with 25 years or more of service in United, or any of its wholly
owned subsidiaries," and that on January 16, 1950, and at all times thereafter,
United and Cross have refused and continued to refuse to bargain with the Union
on said subject. According to its brief, "the Company has always considered
these gifts of stock to be a gratuity, not a part of regular compensation, awarded
to eligible employees for their long-time service and a subject within its uni-
lateral control."
As previously indicated, the bonus grant of stock is an emolument of value,
a perquisite earned by reason of the employment relationship. As such, it
comes within the statutory definition of "wages" and is, therefore, an appropriate
subject of bargaining between employer and employees.1° Indeed, the Court of
Appeals for the First Circuit, in a prior proceeding brought by the Board against
Respondent Cross (174 F. 2d 875) said: "The word 'wages,' following the phrase
14 The dismissal was based "on the ground that said Club was purely a social organiza-
tion in which Sebastian has no absolute right to membership."
Is Deluxe Motor Stages, 93 NLRB 251; The Grace Company, 84 NLRB 435; see also
N. L. R. B. v. Hearst Publications, Inc., 322 U. S. 111, 123.
10 Section 9 (a) of the Act imposes a duty to bargain "in respect to rates of pay, wages,
hours of employment , or other conditions of employment."
UNITED SHOE MACHINERY CORPORATION, INC. 1327
`rates of pay' in the Act must have been intended to comprehend more than
the amount of remuneration per unit of time worked or per unit of work pro-
duced. We think it must have been meant to comprehend emoluments resulting
from employment in addition to or supplementary to actual `rates of pay.' "
See also Inland Steel Co., 170 F. 2d 247 (C. A. 7), cert. den. 336 U. S. 960;
Tower Hosiery Mills, Inc., 81 NLRB 658, enfd. 180 F. 2d 701 (C. A. 4), cert.
den. 340 U. S. 811.
United and Cross further pleaded in their answer that they are not guilty of
refusing to bargain with respect to the bonus stock because of the pendency of
(1) the Massachusetts court action previously alluded to, and (2) the instant
proceeding before the Board. There is no merit to either contention. The
considerations which prompted the rejection of the first of these special defenses
when urged in defense to the charge of discrimination heretofore considered,
are equally cogent and applicable here. The duty to bargain with the duly
designated "representative of its employees, imposed by Federal Statute, was
paramount to any conflicting obligation, [if any], which the State court order
might have imposed upon the Respondent." The Grace Company, 84 NLRB
435. As a matter of fact, the Massachusetts court action and decree involved
only Club membership and were not concerned with, or made any adjudication
of Sebastian's right to the 10 shares of stock. As to the pendency of the instant
proceeding, it is well settled that "the institution of a complaint proceeding
before the Board does not suspend the operation of the Act or relieve an employer
of his duty to bargain thereunder." 14
On the undisputed record, therefore, I find that since January 16, 1951, United
and Cross have refused to bargain collectively with the Union as the exclusive
representative of their employees in an appropriate unit on a subject appropriate
for bargaining, and that said Respondents have thereby interfered with, re-
strained, and coerced, and are interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the operations and activities of the Respondents 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
Having found that Respondents have discriminated in regard to the tenure
of employment and the terms or conditions of employment of Raymond Sebastian
because he participated in the 1946 strike, the undersigned will recommend
that they cease and desist therefrom, and take certain affirmative action, in-
cluding the making whole of the said employee for any loss or diminution in
his seniority or other rights or privileges which he may have suffered as a
result of Respondents' discrimination, all of which the undersigned finds neces-
sary to effectuate the policies of the Act. It also having been found that
Respondents United and Cross refused to bargain collectively with the Union,
it will be recommended that said Respondents, upon request, bargain collec-
tively with the Union as the exclusive representative of such employees with
respect to wages and other terms and conditions of employment.
In view of the nature of the unfair labor practices committed, particularly
the discrimination imposed as a penalty for the exercise of a fundamental right
17 Kelco Corporation, 79 NLRB 759 , remanded on other grounds, 178 F . 2d 578 ( C. A. 4) ;
Na-Mac Products Corporation, 70 NLRB 298.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed by the Act, it will also be recommended, in order to make effective
the interdependent guarantees of Section 7 of the Act, that Respondents cease
and desist from in any manner infringing upon the rights guaranteed in Section
7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONcwsIONs OF LAW
4. Local 3605, United Steel Workers of America, CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of Cross employed at its Jaffrey,
New Hampshire, plant, exclusive of executives, foremen, working foremen,
tack makers, scalers, watchmen, guards, office and clerical employees, and all
supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section 9 (b)
of the Act.
3. Local 3605, United Steel Workers of America, CIO, was at all times material
herein, and now is, the exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective bargaining within the meaning,
of Section 9 (a) of the Act.
4. By discriminating in regard to the tenure of employment and the terms
or conditions of employment of Raymond Sebastian because of his participation
in the 1.3-week strike commencing in January 1946, thereby discouraging mem-
bership in the Union, Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
5. By the acts afore-mentioned, Respondents have interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed in Section
7 of the Act, and have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
6. By refusing to bargain collectively on the policy and method of distributing
bonuses Respondents Cross, United, and Brown have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
GREAT LAKES GREYHOUND LINES, DIVISION OF THE GREYHOUND COR-
PORATION and OFFICE EMPLOYEES INTERNATIONAL UNION, LOCAL
No. 42, AFL, PETITIONER . Case No. 7-RC-1452. November 2,
1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William M. Otter,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
96 NLRB No. 196.