Rubin Bros. Footwear, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1952

99 N.L.R.B. 610 (N.L.R.B. 1952)

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RUBIN BROS. FOOTWEAR, INC. AND RUBIN BROTHERS FOOTWEAR, INC.
and LOCAL 199, UNITED SHOE WORKERS OF AMERICA, CIO' Case
No. 1O-CA--90?. June 11, 1952
Decision and Order
On September 28, 1951, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Respondents
had not engaged in other unfair labor practices, alleged in the com-
plaint and recommended dismissal of those allegations. Thereafter,
the Respondents filed exceptions to the Intermediate Report and a
supporting brief.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings 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, with the following modifications and additions :
1. The Respondents denied reinstatement to employee Rawlins on
November 11, 1949, on the sole ground that Rawlins allegedly struck
employee Odum in front of the Respondents' plant when Odum sought
to return to work on October 11, 1949, during the strike. The Trial
Examiner found that the Respondents failed to establish their affirma-
tive defense that Rawlins in fact had engaged in violence and con-
cluded that, in refusing to reemploy Rawlins, the Respondents violated
Section 8 (a) (3) and (1) of the Act. The Board agrees with the Trial
Examiner, but finds it necessary to modify the rule of proof heretofore
applied in similar cases.
In the Mid-Continent Petroleum Corp. case,2 the Board enunciated
the principle that an employer who refused to reinstate strikers, even
upon an honestly mistaken belief that they had engaged in forbidden
conduct, had no valid defense if, iii. fact, the employees were not
guilty of the forbidden conduct. The reason for so holding was set
forth by the Board in Standard Oil Company of California 3 as
follows:
To hold otherwise would be to place employees who engage in
lawful strike activities with the hope of returning to their jobs
I We are administratively advised that Local 199 Is no longer in existence.
2 54 NLRB 912, 933-935 ( 1944).
91 NLRB 783, 791.
99 NLRB No. 100.
RUBIN BROS. FOOTWEAR, INC. 611
at the end of the economic struggle at the mercy of an employer
who may sincerely regard their conduct as unlawful.
• We here adhere to that principle. The Board stated the applicable
rule of proof in Mid-Continent as follows :
Once it is pleaded . . . that the discharge was made for unlawful
conduct inseparably connected with the strike, the burden was
on [the employer] to show that all the striking employees
discharged therefor had, in fact, been guilty of unlawful
conduct... .
We are now of the opinion that the honest belief of an employer
that striking employees have engaged in misconduct provides an ade-
quate defense to a charge of discrimination in refusing to reinstate
such employees, unless it affirmatively appears that such misconduct
did not in fact occur. We thus hold that once such an honest belief
is established, the General Counsel must go forward with evidence to
prove that the employees did not, in fact, engage in such misconduct.
The employer then, of course, may rebut the General Counsel's case
with evidence that the unlawful conduct actually did occur. At all
times, the burden of proving discrimination is that of the General
Counsel. This modification of the Mid-Continent rule does no more
than recognize the true nature of the General Counsel's obligation to
establish all the essential elements of a charge that discrimination has
occurred when a striking employee is refused his job. It merely places
an employee's honestly asserted belief in its true setting by crediting
it with prima facie validity.
Applying this modified rule of proof to the instant case, the Board
is of the opinion that, although the General Counsel proceeded on
the basis of the Mid-Continent rule, the issue of Rawlins' alleged mis-
conduct was fully litigated, the Respondents having sought to prove
their honest belief and the General Counsel and the Respondents
having further adduced evidence as to the fact of misconduct. Ac-
cordingly, we find, upon the entire record, that Rawlins did not hit
Odum 4 and did not aid or abet in the hitting of Odum.5 We conclude
f We credit , as did the Trial Examiner , the testimony of Rawlins as corroborated by
employee Lord and Union Organizer Cochran, and discredit the testimony of the Respond-
ents' witnesses , employees Wells and Cowart. These credibility findings are clearly sup-
ported by the record . Contrary to the Respondents ' exceptions , the Trial Examiner did
not state as part of his principal findings that Rawlins was not convicted of assault by a
court of law . The finding is made solely as part of the chronological background. Cf.
N. L. R. B. v Kelco Corp., 178 F. 2d 578 (C. A. 4). Nor is there merit to the Respondents'
assertion that Rawlins was arrested along with other employees . As the Trial Examiner
found, Rawlins was not arrested following the Odum incident , but on a warrant obtained
later that day by Odum.
6 The Respondents maintain that, even assuming Rawlins did not strike Odum, he aided
and abetted in the assault. We do not agree. As the Trial Examiner found, Rawlins was
one of a group of strikers who decided to ask Odum and Wells not to enter the plant.
Rawlins was not, in our judgment, close enough to the violence to warrant an inference
that his mere presence was sufficient to link him to the assault. Cf. N. L. R. B. V. Fan-
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore that Rawlins engaged in protected concerted activity and
that the Respondents' refusal to reinstate Rawlins constituted a viola-
tion of Section 8 (a) (3) and (1) of the Act. •
2. The Trial Examiner found, as do we, that on January 25, 1950,
the Respondents discharged Mildred Deane in violation of Section
8 (a) (3) and (1) of the Act. The Respondents except to this find-
ing on the ground that Dean was, in their view of the law, a "non-
striker" whose reinstatement was deferred while strikers were re-
employed, and who failed to report back for work as instructed. As
set forth in the Intermediate Report, Dean was employed on November
7, 1949, during the strike, joined the Union on November 14, sent a
letter to the Respondents a few days thereafter to the effect that she
could not cross the picket line, and applied for reemployment on
January 25 with the other strikers. Dean testified credibly that Per-
sonnel Director Bryant informed her that there was no work for her
but to come back in 2 weeks. Thereafter, Dean applied for employ-
ment on two occasions at 2-week intervals and finally was told that
the Respondents "probably won't have anything for her." Bryant
did not include Dean in the list of strikers to be rehired because Dean
"came to work during the strike." By February 10, the Respondents
had reinstated all strikers they considered eligible for reinstatement.
However, as to Dean, Jack Rubin, comanager of the Respondents'
plant, testified :
... at no time did we consider Mildred Dean a striker... .
She applied for work on January 25, and when her name came
up even though at that time I already knew that she had become
a union member because of a letter we had received that she
would refuse to cross the picket line, I stated to the foreman and
to Mrs. Bryant, that we need not consider her because insofar as
we were concerned, she was not a striker, and that if we want to
put her on we would do so at a later date.
Rubin also testified that he was present when Dean applied for work
on January 25, and that Bryant told Dean "we didn't consider her a
striker. We were only responsible according to the law, to rehire
strikers only."
Thus the Respondents' refusal to reinstate Dean was motivated by
the factor that Dean, in the Respondents' concept of the law, was
a "nonstriker" and therefore not entitled to reinstatement. But
Dean, contrary to the Respondents' mistaken view of the Act, acquired
the status of an economic striker when she joined in the strike activi-
steel Metallurgical Corp ., 306 U. S. 240, 260 ; The W . T. Rawleigh Company v. N. L. R. B.,
190 F. 2d 832 (C. A. 7) ; N. L. R. B. v. Clinchfield Coal Corp ., 145 F. 2d 66 (C. A. 4) ;
Cory Corporation , 84 NLRB 972 , 973, footnote 5.
6 Also referred to by her married name of Mildred Dean Burkett.
RUBIN BROS. FOOTWEAR, INC. 613
ties of the Respondents' employees. She being an economic striker,
although Dean ran the risk of being permanently replaced during the
strike, the Respondents were nevertheless under a duty not to dis-
criminate with regard to her reinstatement because of her concerted
or union activity.7 Accordingly, as the Respondents refused to re-
instate Dean because of her participation in the strike, it is immaterial
that the Respondents in so doing acted upon a good-faith belief that
Dean was a "nonstriker." 8 We find, therefore, that by refusing to
reinstate Dean because of her concerted activities, the Respondents
discriminated in regard to her hire and tenure of employment, thereby
discouraging membership in the Union in violation of Section 8 (a)
(3) of the Act. We further find that the Respondents, by discriminat-
ing against Dean, interfered with the concerted activities of their
employees, in violation of Section 8 (a) (1) of the Act. Whether
the discrimination be viewed as a violation of Section 8 (a) (3) or
8 (a) (1), or both, we find that the remedy of reinstatement and back
pay is appropriate and necessary to remedy the unfair labor practices
involved."
3. We agree with the Trial Examiner's conclusion that the Re-
spondents, by their letters of October 8, 1949, mailed to all strikers
except those allegedly involved in violence, coerced their employees in
violation of Section 8 (a) (1) of the Act. As the Trial Examiner
found, the October 8 letters announced the opening of the plant on
October 11, and referred to an enclosed card to be mailed to the
Respondents "as application for reemployment if so marked." The
cards provided alternative replies to be checked off indicating whether
the strikers planned to return on the plant reopening date or there-
after, or were elsewhere employed, or did not wish to work. The
letters concluded with the statement, "Failure to receive your card
will be an indication to us that you no longer desire your job."
In our view the Respondents' letters did not call for a mere volun-
tary reply as to whether or not the strikers intended to return to work
upon the reopening of the plant. By attaching an application for
' Cf. National Grinding Wheel Company, 75 NLRB 905, 909. As the Trial Examiner
indicated , the Respondents do not contend that it was necessary to discontinue Dean's
services to accomplish reinstatement of strikers with greater seniority . Moreover, we
find that, as Bryant testified , there was a fob available for Dean in the fitting, packing, or
making departments.
e American Shuffleboard Co. v. N. L. R. B., 190 F. 2d 898 (C. A. 3) ; J. A. Bentley Lumber
Company, 83 NLRB 803, enf. 180 F. 2d 641 (C. A. 5) ; Tewtile Machine Works, Inc., 96
NLRB 678. The Respondents also point to the fact that all strikers who applied were
reinstated regardless of union affiliation or refusal to cross the picket line except those
allegedly involved in violence, as evidence of lack of a discriminatory motive toward Dean.
However, on November 16 or 17, Bryant marked Dean's personnel record "quit " although
Bryant knew as of November 15 that Dean was out because she refused to cross the picket
dine. Furthermore , it appears that Dean was the only employee hired during the strike
who thereafter refused to cross the picket line . In any event , unlike the Trial Examiner,
we do not predicate our conclusion that the Respondents discriminated against Dean upon
their antiunion animus.
J. A. Bentley Lumber Company , supra.
215233-53-40
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reemployment and inserting a warning that failure to reply might
result in termination of employee status, the Respondents, we believe,
sought to compel divulgence of the strikers' back-to-work intentions.
As economic strikers, however, the Respondents' employees were sub-
ject to loss of employee status by replacement, an event which had not
occurred at the time of the Respondents' letters. Consequently, the
Respondents could not threaten termination of employment of the
strikers upon their failure to act at the Respondents' request. We
find, therefore, that the Respondents, by their October 8 letters con-
taining threats of reprisal against their striking employees, interfered
with, restrained, and coerced their employees in the exercise of their
rights to engage in concerted activities guaranteed by Section 7, in
violation of Section (a) (1) of the Act io
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Rubin Bros. Footwear,
Inc., and Rubin Brothers Footwear, Inc., Waycross, Georgia, their
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Shoe Workers of Amer-
ica, CIO, or any local union thereof, or any other labor organization
of their employees by discharging or refusing to reinstate any of
their employees, or by discriminating in any other manner in regard
to their hire or tenure of employment or any term or condition of
employment.
(b) Threatening their employees with economic reprisals because of
their union membership or activities.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization,
to form, join, or assist United Shoe Workers of America, CIO, or any
local union thereof, or any other labor organization, to bargain col-
lectively 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 of such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employ-
ment, 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 :
'o Cf. United States Cold Storage Corporation , 96 NLRB 1108 ; American Shuffleboard
Co. v. N. L. R. B., supra ; N. L. R. B . v. Electric City Dyeing Co., 178 F . 2d 980 ( C. A. 3).
RUBIN BROS. FOOTWEAR, INC. 615
(a) Offer to Herschel Rawlins and Mildred Dean Burkett immedi-
ate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, and make them whole in the manner set forth in the sec-
tion of the Intermediate Report entitled "The Remedy" for any loss
of pay they may have suffered by reason of the Respondents' discrimi-
nation against them.
(b) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records, and all
other records necessary to analyze the amounts of back pay due under
the terms of this Order.
(c) Post at their plant at Waycross, Georgia, copies of the notice
attached hereto and marked "Appendix A." 11 Copies of such notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondents' authorized representa-
tive, be posted by the Respondents immediately upon receipt thereof,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply therewith.
IT Is FURTIIER ORDERED that the allegations of the complaint, insofar
as they allege that the Respondents violated Section 8 ( a) (3) and
8 (a) (1) of the Act by the discharge of J. C. Cox and by promise
of benefit be, and they hereby are, dismissed.
MEMBERS MURDOCK and STYLES took no part in the consideration of
the above Decision and Order.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to as Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in UNITED SHOE WORKERS
of AMERICA, CIO, or any local union thereof, or any other labor
n In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization, by discharging or refusing to reinstate any of our
employees or by discriminating in any other manner in regard
to the hire and tenure of their employment, or any term or condi-
tion thereof.
WE WILL NOT threaten our employees with economic reprisals
because of their union membership or activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organi-
zation, to form labor organizations, to join or assist UNITED SHOE
WoRxERs or AlIIERICA, CIO, or any local union thereof, or other
labor organization, to bargain collectively through representa-
tives 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 such activities except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Herschel Rawlins and Mildred Dean Burkett
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges, and we will make each of them whole for
any loss of pay suffered as a result of our discrimination against
them.
RuBIN BRos. FOOTWEAR, INC.,
RUBIN BROTHERS FOOTWEAR, INC.,
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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge,' first amended charge,' second amended charge,e and third
amended charge' filed by Local 199, United Shoe Workers of America, CIO,
herein called the Union, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued
a complaint dated July 23, 1951, against Rubin Bros. Footwear, Inc., and Rubin
Brothers Footwear, Inc., herein called Respondents, alleging that Respondents
have engaged in and are engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) and (3) of the National Labor Rela-
1 Filed November 18, 1949.
2 Filed February 21, 1950.
8 Filed April 11, 1950.
4 Filed June 28, 1950.
RUBIN BROS. FOOTWEAR, INC. 617
tions Act, as amended, herein called the Act. With respect to unfair labor
practices , the complaint alleges that Respondents discriminated against Her-
schel Rawlins, on or about November 11, 1949, and on or about January 25, 1950,
and at all times thereafter, against Mildred Dean "on or about January 25, 1950,
approximately 2 weeks subsequent to on or about January 25, 1950, and approxi-
mately 4 weeks subsequent to on or about January 25, 1950," and at all times
thereafter, and against J. C. Cox, on or about February 24, 1950, and thereafter,
because of their membership in and activities on behalf of the Union and because
said individuals engaged in concerted activities with other employees for the
purpose of collective bargaining and other mutual aid and protection. The
complaint further alleges that Respondents, on or about August 9, 1949, promised
economic benefits to their employees on condition that they refrain from engag-
ing in activities on behalf of the Union, that Respondents, on or about August
6, 1949, and during March 1950, or thereabout, threatened to discharge their
employees if they joined or retained membership in the Union, or engaged in
activities on behalf of the Union, and that Respondents on or about October 8,
1949, "individually and unilaterally solicited their employees to abandon their
lawful concerted activities and return to work."
Respondents duly filed (1) a motion to make the complaint more specific which
was granted in part, (2) a motion to dismiss the complaint,' and (3) an answer
Pursuant to notice, a hearing was held on August 13, 14, 15, 16, and 17, 1951,
at Waycross, Georgia, before the undersigned Trial Examiner. The General
Counsel and Respondents were represented by counsel and the Union by J. R.
Cochran. All parties participated fully in the hearing. After the close of the
hearing, briefs were received from counsel for the General Counsel and from
counsel for Respondents which have been considered.
Respondents' Motion to Dismiss
Respondents contend that the complaint should be dismissed because at the
time of the filing of the original charge (on November 18, 1949) and prior to
December 22, 1949, the Congress of Industrial Organizations, the parent federa-
tion of the charging union, was not in compliance with the non-Communist affi-
davit provisions of Section 9 (h) of the Act. Respondents contend that by
virtue of such noncompliance the original charge, the amendments thereto, and
all investigations made, are illegal and void and that therefore the complaint
is not based upon a valid charge. This contention is without merit. This Board
has held that the Act requires only that the Union be in compliance at the
time of the issuance of a complaint. (See Edwards Brothers, Inc., and cases
cited therein, 95 NLRB 1328.)
On November 15, 1948, the Union filed a representation petition with the Board
under Section 9 (a) of the Act' Thereafter on March 18, 1949, an election
was conducted and as a result thereof the Union was certified as the exclusive
bargaining agent of all production and maintenance employees of Respondents
at their Waycross, Georgia, plant. Throughout the representation proceeding
Respondents sought dismissal of the petition on the grounds, inter alia, that the
Congress of Industrial Organizations, the parent federation of the then petition-
ing union (charging union herein) was not in compliance with the non-Commu-
nist affidavit provisions of Section 9 (h) of the Act. Respondents now contend
'Prior to the hearing Trial Examiner Reeves R. Hilton denied the motion to dismiss
without prejudice to Respondents' right to renew said motion at the hearing. This motion
was renewed at the hearing and taken under consideration by the undersigned.
6 See Case No. 10-RC-430.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "this election was void and the charging union is not entitled as a'matter of
law to bring the subject complaint No. 10-CA-902." The undersigned rejects
this contention. The undersigned has found no authority holding that the
charging union must be certified as the bargaining agent and as noted above,
the complaint is not subject to dismissal on the ground that the Congress of
Industrial Organizations was not in compliance at the time the charge was filed.
Respondents contend that the allegations of the complaint concerning prom-
ises of economic benefits, threats of discharge, and solicitations to abandon
concerted activities should be stricken in their entirety because some of said
acts allegedly occurred during a time when the CIO was not in compliance with
the non-Communist affidavit provision of the Act, and because "none of the acts
mentioned in said paragraphs [of the complaint] are set out in the charge
attached to the subject complaint, and the dates of said alleged acts are more
than 6 months prior to the filing of the subject complaint and now barred by
Section 10 (b) of the Act." These contentions are rejected. There is no re-
quirement in the law that a labor organization, at the time it files a charge,
must be in compliance with the non-Communist affidavit provisions of the Act.
The original charge was filed on November 18, 1949, and alleges, interalia, that
Respondents engaged in unfair labor practices within the meaning of Section
8 (a) (1) of the Act and that Respondents by specifically alleged conduct
(discrimination against named individuals) and by "other acts and conduct,
within the past 6 months, the Employer [Respondents] interfered, restrained
and coerced its employees in the exercise of their rights as guaranteed in Sec-
tion 7 of the Act." Identical language also appears in each of the amended
charges. Although the complaint amplified the allegations set forth in the
charge and amended charges the allegations of the complaint are related to the
allegations of the charge and amended charges and Respondents have not been
prejudiced. In any event, the unfair labor practices complained of (in the
complaint) were allegedly committed no longer than 6 months before the filing
and service of the original charge and were therefore properly included in the
complaint. (See American Shuffleboard Co. v. N. L. R. B., 190 F. 2d 898 (C. A.
3), and cases cited therein and Jarka Corp., 94 NLRB 320.) The Act bars a
complaint based upon "any unfair labor practice occurring more than 6 months
prior to the filing of the charge . . ." As noted above, the conduct complained
of occurred within 6 months of the filing of the charge. It is not material that
they did not occur within 6 months of the filing of the complaint.
Respondents' motion to dismiss is hereby denied.
There is no dispute concerning the following matters and the evidence reveals
and the undersigned finds: (1) That Respondents are engaged in commerce
within the meaning of the Act' and (2) that Local 199, United Shoe Workers
of America, CIO is a labor organization within the meaning of Section 2 (5)
of the Act.
Respondents deny the unfair labor practices alleged and set forth affirmative
defenses, hereinafter discussed.
7 Respondents maintain and operate a plant at Waycross, Georgia (the only plant in-
volved )ierein), where they engage in the manufacture, sale, and distribution of footwear.
In the operation of this plant Respondents annually receive raw materials , principally
leather, valued in excess of $500,000 and more than 90 percent thereof is received from
points outside of Georgia. Annually the Waycross plant produces finished footwear
valued in excess of $500,000 and more than 90 percent thereof is sold and shipped outside
of Georgia.
RUBIN BROS. FOOTWEAR, INC. 619
Upon the entire record in the case, and from his observation of witnesses, the
undersigned makes the following findings of fact, conclusions of law, and
recommendations .8
The Strike
On August 9, 1949, Respondents' making department employees ceased work
concertedly, went on strike, and established a picket line at the entrance to the
plant. Shortly thereafter the entire plant was closed. The alleged unfair labor
practices are premised, in part, upon activities in connection with and during the
strike and related thereto. The record herein does not contain evidence as to
the cause of the strike. However, it is noted that in Case No. 10-CA-532, involv-
ing these same Respondents,' it was found that the strike was caused by Respond-
ents' unlawful refusal to bargain. It is further noted that on July 16, 1951, the
National Labor Relations Board, herein called the Board, entered an order vacat-
ing decision and dismissing complaint in Case No. 10-CA-532 on the ground "that
the charging labor organization, United Shoe Workers of America, CIO was not
in compliance with Section 9 (h) of the Act at the time the complaint issued."
Respondents seem to contend, in the instant matter, that the strike was illegal and
void and consequently an unprotected activity by its employees since it was called
because of Respondents' failure to recognize the United Shoe Workers of America,
010 and was called at a time when said Union was not in compliance with Section
9 (h) of the Act. The undersigned finds no authority to support this contention.
The undersigned has found no authority holding a strike under these circum-
stances is per se unlawful. Furthermore, in the light of the entire Act and its
legislative history it does not appear that Congress intended such an interpreta-
tion of the statute even though the Union could not use the processes of this Board
to enforce its demands prior to its compliance with Section 9 (h) of the Act.
Herschel Rawlins
Rawlins was employed by Respondents in January 1943, but quit about 6 months
thereafter. He returned to Respondents' employ about June 1948 and worked in
the making department.
Rawlins joined the Union in October 1948 and was one of the employees who
went out on strike on August 9, 1949. He served on the picket line "most all the
time" and carried signs.
On or about October 8, 1949, Respondents mailed to their employees" a letter
reading as follows :
Rubin Bros. Footwear, Inc., will open its Waycross plant this Tuesday,
October 11, 1949; and you are requested to report for work on that date, at
your regular time.
The laws of both the State of Georgia and The United States of America
8 The testimony concerning the incidents involved in this proceeding is thoroughly con-
flicting and contradictory and the findings of fact made herein result from the under-
signed 's attempt to reconcile the evidence and determine what probably occurred. The
findings of fact are based upon a consideration of the entire record and observations of
witnesses. All evidence on disputed points is not set forth so as not to burden unneces-
sarily this Report. However, all has been considered and where required resolved. In
determining credibility the undersigned has considered, inter alla, the demeanor and con-
duct of witnesses ; their candor or lack thereof ; their apparent fairness, bias, or prejudice ;
their interest or lack thereof ; their ability to know, comprehend, and understand matters
about