American Shoe Machinery & Tool Co.

National Labor Relations Board - Board Decisions

May 28, 1940

23 N.L.R.B. 1315 (N.L.R.B. 1940)

In the Matter of AMERICAN SHOE MACHINERY & TOOL COMPANY and
INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 9
Case No. C-1431.-Decided May 28, 1940
Shoe Machinery and Tool Manufacturing Industry-Interference, Restraint,
and Coercion: separate charges of, dismissed-Collective Bargaining: charges
of refusal to bargain not sustained-Discrimination: charges of, not sustained-
Complaint: dismissed.
Mr. Thurlow Smoot and Mr. David Y. Campbell, for the Board.
Mr. R. D. Abbott, of St. Louis, Mo., for the respondent.
Mr. Paul R. Hutchings, of Washington, D. C., for District No. 9.
Mr. Ben Law, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Association of Machinists, District No. 9,1 herein called District No.
9, the National Labor Relations Board, herein called the Board, by
the Acting Regional ,Director for the Fourteenth Region (St. Louis,
Missouri ), issued its complaint , dated September 1, 1939 , and its
amended complaint , dated September 6, 1939, against American Shoe
Machinery & Tool Company , herein called the respondent. The
amended complaint alleged that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (3), and ( 5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the amended complaint , accompanied by notices of
hearing thereon , were duly served upon the respondent and the
Union.
With respect to the unfair labor practices the amended complaint
alleged in substance (1) that the respondent on or about December 22,
1 As explained in the section entitled "The organizations involved ," infra, District No. 9
represents Progressive Lodge No. 41, International Association of Machinists , referred to
in this decision as Lodge No. 41, it --tters of collective bargaining
23 N. L. R. B.. No. 136.
1315
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1938, and at all times thereafter, refused to bargain collectively with
District No. 9 as the exclusive representative of its employees in an
appropriate unit, although District No. 9 represented a majority of
such employees; (2) that the respondent's refusal to bargain caused
and prolonged a strike of its employees beginning on or about Janu-
ary 12, 1939; (3) that during March 1939 the respondent refused to
reinstate upon application and terminated the employment of 13
named employees who had participated in the strike and has contin-
ued to refuse them reinstatement because they joined and assisted a
labor organization known as Lodge No. 412 and engaged in concerted
activities for the purpose of collective bargaining and other mutual
aid and protection; and (4) that the respondent threatened to close
its plant unless the employees would abandon the strike, threatened to
replace striking employees with new employees, induced members of
Lodge No. 41 to disavow the acts of their authorized representatives
and to abandon the strike, and in other ways interfered with, re-
strained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
On September 14, 1939, the respondent filed its answer to the
amended complaint in which it (1) admitted that it was engaged in
interstate commerce and that the unit described in the amended com-
plaint is appropriate for the purposes of collective bargaining; (2)
denied the commission of unfair labor practices; and (3) alleged in
substance that it had bargained in good faith with District No. 9
and that the strike was caused and prolonged solely by its refusal to
grant certain wage increases and a closed-shop agreement demanded
by District No. 9.
Pursuant to notice, a hearing was held at St. Louis, Missouri, from
September 11 through 20, 1939, before William B. Barton, the Trial
Examiner duly designated by the Board. The Board and the respond-
ent were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing the Trial Examiner made a number
of rulings on motions and on objections to the admission of evidence.
The Board has reviewed these rulings and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
After the hearing the Board and the respondent submitted briefs
to the Trial Examiner. Thereafter, on or about November 22, 1939,
the Trial Examiner issued his Intermediate Report, copies of which
were duly served upon the parties, finding that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
2 See footnote 1, supra.
AMERICAN SHOE MACHINERY & TOOL COMPANY 1317
merce within the meaning of Section 8 (1), (3), and (5) and Section,
2 (6) and (7) of the Act. He recommended, inter alia, that the re-
spondent cease and desist from engaging in the activities constituting
the unfair labor practices; that it bargain collectively, upon request,
with District No. 9 in respect to wages, hours of work, and other con-
ditions of employment, and if an understanding should be reached,
embody such understanding in a signed agreement with District No. 9,
that it reinstate with back pay certain employees found to have been
discriminatorily refused reemployment by 'the respondent because of
their union membership and activities; and that it take certain other
affirmative action to remedy the situation brought about by the unfair
labor practices. On December 18, 1939, District No. 9 filed Exceptions
to the Trial Examiner's Intermediate Report. On January 2, 1940,
the respondent filed Exceptions and Objections to the Trial Exam-
iner's Intermediate Report and to the record and proceedings, and on
January 22, 1940, filed its written brief in support thereof.
Pursuant to notice a hearing was had for the purpose of oral argu-
ment before the Board in Washington, D. C., on March 19, 1940,
The respondent and District No. 9 were represented by counsel and
participated in the oral argument.
The Board has considered the exceptions to the Intermediate Re-
port filed by the respondent and by District No. 9 and, in so far as
they are inconsistent with the findings, conclusions, and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following ;
FINDINGS OF FACT
1. TAE BUSINESS OF THE RESPONDENT
The respondent is a Missouri corporation engaged in the manu-
facture, sale, and distribution of shoe machinery and tools. It main-
tains its office and only plant in St. Louis, Missouri. The total value
of the materials used by the respondent annually in the operation of
its business is approximately $100,000, and approximately 50 per cent
of the materials so used at the St. Louis plant are purchased and
transported to that plant from and through States of the United
States other than the State of Missouri. The total value of the fin-
ished products produced annually by the respondent is in excess of
$400,000. The respondent causes and has continuously caused ap-
proximately 95 per cent of these finished products to be sold and
transported into and through, States of the United States other than
the State of Missouri.
The respondent normally employs approximately 74 persons in
production and maintenance work.
283034-41-vol 23--84
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists , District No. 9, is a labor
organization affiliated with the American Federation of Labor. It is
a delegate body composed of representatives elected to it from the
several local lodges of the International Association of Machinists
which it represents in collective bargaining with employers.
Progressive Lodge No. 41 , International Association of Machinists,
is a labor organization affiliated with the American Federation of
Labor, admitting to membership employees in the machinists trade
in the vicinity of St. Louis, including production and maintenance
employees of the respondent . Lodge No. 41 elects delegates to, and
is represented in collective bargaining by, District No. 9.
III. THE UNFAIR LABOR PRACTICES
A. Events prior to the alleged refusal to bargain
The first meeting between representatives of the respondent and
of District No. 9 occurred in May 1937 when Lawrence Connors and
E. E. Walker, business representatives of District No. 9, called upon
Harry Krag, vice president and plant superintendent of the respond-
ent. After identifying themselves and telling Krag that District
No. 9 represented a majority of the respondent 's employees , Connors
and Walker requested that a conference be held in the presence of a
shop committee for discussion of a proposed agreement . Drag as-
sented to holding such a conference after telling Connors and Walker
that he wished them to understand that it was the respondent 's policy
to operate an open shop.
In June 1937 , pursuant to their previous conversation , Krag and
Connors met in the respondent 's plant. Also present were Lewis
Block, the respondent 's treasurer, Stanley Pawlowski , its timekeeper,
and a shop committee composed of certain of the respondent's em-
ployees who were members of Lodge No. 41.
During the ensuing negotiations the parties discussed various mat-
ters including the elimination of piece work , wage adjustments, a
5-day week , and an apprenticeship plan. Connors also submitted to
Krag a proposed written contract between the respondent and Dis-
trict No. 9 providing , among other things, for a closed shop. Krag
refused to sign the proposed contract. The parties did, however,
agree orally upon certain matters, including the elimination of piece
work and various wage adjustments . District No. 9 abandoned for
the time being its demand for a closed shop.
Soon after the above-described negotiations the respondent sent a
letter, dated June 21, 1937 , addressed to Connors and Walker as busi-
AMERICAN -.SHOE MACHINERY & TOOL COMPANY 1319
ness representatives of District No. 9. This letter, opening with the
words "as agreed," described three classifications of the respondent's
employees and the wage rates for each classification, set forth the
respondent's policy with respect to wage increases, declared for an
open shop, and stated that a shop committee would be recognized to
speak for any employees desiring such representation.'
Soon after it received the respondent's letter of June 21, 1937, Dis-
trict No. 9 informed Krag orally that it was willing that its relation-
ship with the respondent should proceed on the basis of the terms
therein stated. At about the same time the respondent eliminated
piece work and made various wage adjustments pursuant to the agree-
ment and established a 5-day week.4
In October 1937 Krag and Connors met in the presence of the shop
committee and discussed certain grievances.
On November 26, 1937, Connors wrote 'to the respondent stating
that District No. 9 was desirous of "reopening the present agreement"
between itself and the respondent. Pursuant to this letter Krag and
Block met with Connors and the shop committee during December
1937. Connors again submitted a proposed written contract provid-
ing, inter alia, for a closed shop, wage increases, and seniority in the
reduction of forces, and in the reemployment of men. Again Krag
refused to accept the proposed contract, stating that he could not
agree to the above-mentioned provisions. Connors apparently offered
to withdraw the closed-shop provision if the respondent would sign
a contract containing the other terms. Krag still refused to agree to
or sign such a contract.
The negotiations during December 1937 ended with both parties
agreeing to continue their relationship for a year upon the basis of
the understanding reached the previous June. District No. 9, how-
ever, reserved the right to reopen negotiations at any time.
In September 1938 representatives of the respondent and District
No. 9 met and discussed grievances of certain individual employees.
Thereafter the, respondent made various adjustments of some of the
matters discussed.
Connors and James G. Sissom, a member of the shop committee,
testified that during the negotiations of June and December 1937,
Krag stated that the respondent would not sign any sort of an agree-
3 The respondents letter of Tune 21, 1937 , concluded with the following statement, "As
some of the employees raised the question of proof of collective bargaining in case an issue
should arise , this letter is ample evidence of the fact "
4 The respondent did not post shop rules as provided for in the letter of June 21, 1937.
The reason for its not doing so, according to Brag, was that the respondent and District
No. 9 never met or attempted to meet for the purpose of preparing shop rules mutually
agreeable to both Apparently District No 9 did not consider the respondent 's failure to
post shop rulei to be of any importance since Connors testified that the respondent had
'complied in every respect with the teems of its letter of June 21, 1937.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment with District No. 9. Krag admitted having refused to sign the
particular proposed contracts submitted to him by District No. 9 for
the reason that he found certain of the provisions therein to be un-
acceptable. He also admitted that at the meeting in June 1937 he
had suggested that since the procedure of dealing with a union was
new to him the parties should get together on points upon which they
could agree and "forget the signed agreement." It is not clear
whether by use of the above-quoted words Krag referred to the
particular proposed written contract submitted by District No. 9
at that time or to any signed agreement whatsoever. Krag insisted
that at no time during the negotiations had he stated that he would
not sign any sort of an agreement with District No. 9 or made any
similar statement.
Postponing, for the moment, our conclusion on whether or not
Krag made the statement attributed to him by Connors and Sissoln,
we think it is plain, and we find, that as a result of the negotiations
in June 1937 the respondent and District No. 9 entered into an agree-
ment providing in part for the elimination of piece work, wage ad-
justments, and recognition by the respondent of the shop committee.
It is not shown that District No. 9 requested the respondent to embody
the matters upon which they reached an agreement in a written
contract signed by both parties. On the contrary it appears that
District No. 9 felt that the agreement it obtained in 1937, although
acceptable in form under the circumstances, was unsatisfactory from
the standpoint of content and that all of its requests for a contract
signed by both parties referred to particular proposed contracts con-
taining terms to which the respondent would not agree. District No.
.9 thus failed during the negotiations in 1937 to place the respondent
under obligation to enter into a written contract embodying the
matters agreed upon and signed by both parties.5
Summing up the evidence so far, the record shows that the respond-
ent freely met and negotiated with District No. 9 whenever requested
to do so; that as a result of such negotiations the respondent and Dis-
"Cf. Matter of 'Fort Wayne Corrugated Paper Company and Local No 182, International
Brotherhood of Pulp, Sulphite , and Paper Mill Workers , 14 N. L. R. B. 1, enf'd in Fort
Wayne Corrugated Paper Company v. N. ^L. R B., 111 F. (2d) 869 (C. C. A 7),
where, after having negotiated and agreed with the union upon various questions the em-
ployer sent the union a signed statement of policy in conformity with the agreement
reached, but refused the union's request to embody the agreement in a signed contract.
The statement of policy failed to acknowled;e in any way that its terms and conditions
were the result of negotiation with the union . The Board found that under the circum-
stances of the case, the employer was obligated to enter into a signed contract with the
union and stated in its decision , "Manifestly , a signed statement of policy which the em-
ployer is willing to observe as a matter of policy and not as a matter of contractual obli-
gation is not the equivalent of a written contract " Such a case is not presented here.
Cf. also Matter of H. J. Heinz Company and Canning and Picble Workers, Local Union
No. 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America,
American Federation of Labor, 10 N. L. R. B. 963 ; enf'd in H. J Heinz Company v.
N. L. R. B . 110 F. ( 2d) 843 (C. C. A. 6).
AMERICAN SHOE MACHINERY & TOOL COMPANY 1321
trict No. 9 entered into an agreement in June 1937; that the respond-
ent incorporated the terms of the agreement in a letter addressed to
District No. 9 and signed by itself acknowledging that the agreement
was obtained through negotiations with` District No.' 9; and, finally,
that District No. 9 failed to request the respondent to embody the
agreement in a written contract signed by both parties.
We find that during the negotiations in 1937 the respondent did not
take the position that it would not sign any sort of an agreement with
District No. 9 . 11
B. The alleged refusal to bargain
On November 23, 1938, District No. 9 wrote a letter to the respond-
ent, similar to its letter of November 26, 1937, stating that it was
desirous of "reopening the agreement" between them. Pursuant to
this letter, on December 22, 1938, Krag, Block, and Pawlowski, rep-
resenting the respondent, met in Krag's office with Connors and the
shop committee, representing District No. 9. It appears that Krag
and Connors took the leading parts in all ensuing negotiations. Both
had authority to act in such matters on behalf of their respective
principals.
Connors again presented Krag with a proposed written contract,
the terms of which were fully discussed by the parties. As to certain
of its sections Krag expressed his complete approval and as to certain
others his qualified approval.7
Krag definitely refused, however, to agree to sections of the pro-
posed contract providing for a union shop,8 an unqualified seniority
rule in the reduction of forces and in the reemployment of men, and
0 It should be noted that neither the charges filed by District No. 9 nor the amended
complaint alleges that the respondent failed to bargain collectively with District No. 9
prior to December 22, 1938. Evidence of events prior to that date is relevant only in so far
as it clarifies and explains subsequent happenings
' Brag expressed his unqualified approval of sections of the proposed contract which
provided ( a) "The employer shall not discriminate against any man selected to serve on
the shop committee ," and (b ) "Employees will not cease work, walk out or engage in any
shop strike during the negotiation of differences."
Brag indicated that be would be willing to agree to sections of the proposed contract
providing for the settlement of grievances of employees by negotiation between the respond-
ent and representatives of District No. 9. He stated , however, that he thought most
grievances could be settled between the employee concerned and his foreman.
The parties discussed sections of the proposed contract providing for an 8-hour day and
40-hour week and setting rates for overtime ; but, in general , consideration of such matters
was passed over as being secondary to and dependent upon provisions setting the hourly
rates of pay . brag also said that if District No. 9 insisted he would agree to sections pro-
vided for double-time pay for work on Sundays and holidays and a 10-per cent raise above
regular rates for men on a night shift. He added, however, that there was no reason for
such provisions since the respondent did not operate on Sundays and holidays or have a
night shift and that it had no intention of so doing.
8 This section of the proposed contract provided, "All employees of the American Shoe
Machinery & Tool Company shall be members of the International Association of Machin-
ists. The company , however, may employ whomever they see fit provided such new em-
ployees join the Union within thirty ( 30) days after date of employment."
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantial general wage increases . With regard to the provision
for a union shop , Krag insisted that the respondent 's policy was to
operate an open shop and that it would so remain . He said further
that he wished to leave his employees entirely free to decide for them-
selves whether or not they would join a union . Krag stated generally
as to the provision for an unqualified seniority rule that the respond-
ent had always considered seniority as a factor in making promotions
and in laying off men , but that it was necessary to take into account
also the ability and qualifications of the employees concerned. - He
said that in such matters the respondent must retain final authority.
Krag told the representatives of District No. 9 that because of com-
petitive conditions in the industry the respondent could not and
would not agree to the provisions for general wage increases. The
parties exhaustively discussed all of the above-mentioned issues.
District No. 9 did not at any time during ' the conference offer to
modify the terms of its proposed contract in any substantial respect.
The respondent was uncompromising in its rejection of the proposed
contract . Krag offered, however, to renew the agreement under
which the parties had been operating and to write another letter to
District No. 9 similar to its letter of June 21, 1937. As the meeting
ended, Connors warned Krag that District No. 9 would probably
take some action against the respondent.
On or about December 27, 1938, Connors made a report of the con-
ference with Krag to a meeting of those of the respondent 's employ
ees who were members of Lodge No. 41. By a unanimous vote these
employees voted to reject Krag's offer to renew the former agreement
between the parties. They then voted 44 to 4 in favor of taking
strike action against the respondent . Connors accordingly wired the
central office of the International Association of Machinists request-
ing strike sanction . In his wire Connors stated that the purpose of
a strike would be to obtain a signed agreement providing for a 10
per cent an hour increase in pay and a union shop . The central of-
fice replied that the Executive Council of the International Associa-
tion of Machinists was voting on the question of allowing strike
sanction and that it had notified the Conciliation Department of the
United States Department of Labor of the dispute.
On January 6, 1939, Krag and Block again met with Connors and
the shop committee in the presence of William White, a . conciliator
from the United States Department of Labor, who had arranged the
meeting. White was provided with a copy of the contract proposed
by District No. 9 and the parties again discussed its terms , section
by section . Neither the respondent nor District No. 9 made or of-
fered to make any substantial change in . the respective positions they
had taken at the meeting on December 22, 1938.
AMERICAN SHOE MACHINERY & TOOL COMPANY 1323
On January 11, 1939, Connors received word from the central office
of the International Association of Machinists that strike sanction
was granted. On January 12, 1939, almost all of the respondent's
employees went out on strike.
Thereafter White requested both the respondent and District No
9 to meet again to attempt to settle the differences between them.
Such a meeting was held on February 1, 1939. Those present were
Krag and Block representing the respondent, Connors and the shop
committee representing District No. 9, and White.
Discussion apparently centered around those sections of the pro=
posed'.contract providing for a union 'shop, a seniority rule, and
wage increases. Krag reiterated his position that the respondent
would not agree to a union shop or an unqualified seniority rule with
regard to reduction of forces'and reemployment of men, and that it
could not give any general 'wage 'increases. There is some 'evidence
that at both this meeting and that of January 6, White suggested
that if the respondent would grant some pay increase District No. 9
might give up its demand for a union shop. Apparently neither
party expressed any willingness to make such a compromise.
White also requested Krag to make counterproposals. This Krag
agreed to do and on February 3, 1939, he wrote a letter, addressed to
Connors as business representative of District No. 9 and signed in
the name of the respondent,'p>_irporting to state "the company's posi-
tion in the matter." In essence this letter restated the position the
respondent.had taken at the conferences with respect to the Inajor,
points in dispute.
- Connors testified that at the meetings of December 22, 1938, Janu-
ary 6, 1939, and February 1, 1939, Krag again stated that he defi-
nitely would not `sign 'any contract with District No. 9, eveli if an
agreement- should be reached .9 Connors' testimony was supported
by that of Sissom, a member of the shop committee who was present.
at all of the'conferences.
' - Krag admitted that he had told Connors that he would not sign
anything-to which he could not agree, and that he saw no reason for-
"changing the agreement that had been in effect since June 1937."
He insisted , however, that at no time during the conferences' under
o In a number of places In the record Connors, by adding the words "union shop agree-
ment," appears to qualify his testimony that Brag stated lie would refuse to sign any
agreement For example , with regard to the meeting on January 6, 1939, Connors testified
that Krag said , "well , I went as far as I am going to go and I am not going to sign any
sort of an agreement , union shop agreement keeping myself to any set of rules because of
the deferent things that may come up during the period of a year . . The Board has
noted such testimony since after 1937 District No 9 did not retreat from its stand for a
closed - or union-shop provision in any contract which might be signed . It is clear, how-
ever, that in other places in the record the testimony of Connors and Sissom that Brag
stated he would refuse to sign any contract , even if an agreement should be reached, is
entirely unqualified. 11
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consideration had he stated that he would not sign any contract, even
if an agreement should be reached, or made any similar statement.
Krag testified further that his position at all times was that h, would
be willing to sign a contract provided he could agree to its terns.
Stanley Pawlowski, the respondent's timekeeper, who was present
throughout the conference on December 22, 1938, testified,that-h -did
not hear Krag make the statement attributed to him by Connors and
Sissom, or any similar statement. Pawlowski did not attend the
meetings of January 6 or February 1, 1939. Other persons present
at the conferences either did not testify at all 10 or failed to testify
concerning the conversations there occurring.," The above conflict in
the testimony will be considered more fully hereafter.
The duty to bargain collectively which the Act imposes upon em-
ployers is not limited to the recognition of the employees' represent-
atives, or to a meeting and discussion of terms with them. Rather,
there is a duty on both sides to enter into discussion with an open
and fair mind, and a sincere purpose to find a basis of agreement
touching wages, hours, and conditions of labor, and if found to em-
body it in a contract as specific as possible, which shall provide a
statement of principles and rules for the orderly government of the
,employer-employee relationship in the future.12
Although the employer's obligation to bargain in good faith
includes the obligation to enter into a binding agreement upon request
if an understanding on terms is reached, the Act does not require an
:agreement on terms. The record in the instant case shows that the
Tespondent met with representatives of District No. 9 whenever
Tequested to do so and freely discussed with them questions concern-
ing wages, hours, and working conditions. In June 1937 the parties
entered into an agreement, the terms of which the respondent in-
'corporated in its letter of June 21, 1937, addressed to District No.
9. Upon expiration of this agreement in December 1938, District
No. 9 proposed a new contract containing some terms to which the
respondent expressed a willingness to agree and others to which it
flatly refused to agree. The respondent offered to renew the aggree-
m Lewis Block, the respondent's treasurer, and William White, conciliator from the
United States Department of Labor, did not testify.
11 various members of the shop committee, other than James G. Sissom, were present at
the conferences with the respondent and testified at the hearing 'They did not, however,
testify concerning the conferences nor were they asked to do so by either the Board or the
respondent.
V See N L R B v Highland Park Manufacturing Company, 110 F (2d) 632 (C C. A. 4),
,enforcing Matter of Highland Park Manufacturing Co and Textile Workers Organ-
izing Committee, 12 N L R B 1238; Matter of Pittsburgh Metallurgical Company,
Inc and Local 12077 Gas and By-Products Cole and Chemical Workers Union, District 50,
United Mine Workers of America, 20 N L R. B 1077, and cases cited therein; Art
Metals Constiuetion Company v N L R B 110 F (2d) 148 (C C A 21 ent'g
as modified as to other issues, Matter of Art Metals Construction Company and Interna-
tional Association of Machinists, Local 1559, affiliated with District No. 55 of the I. A. M.
(A. F. of L.), 12 N. L. R. B. 1307. 1
AMERICAN SHOE MACHINERY & TOOL COMPANY 1325
ment of June 1937. District No. 9 refused this offer and failed to
modify the terms of its proposed contract. Although at subsequent
conferences the parties again fully discussed the issues between them,
neither the respondent nor District No. 9 made or indicated a willing-
ness to make any substantial retreat from the positions taken at the
meeting of December 1938.
The respondent's refusal to, accept various terms of the written
contract proposed by District No. 9 is, not in itself evidence of bad
faith. The main, issues between the parties, as evidenced by ac-
counts of the bargaining conferences. and by Connors'-wire to the
central office, of the International Association of Machinists request-
ing strike sanction,' were raised over sections in the, proposed con-
tract providing for (1) a union shop, (2) general wage increases,
(3) an unqualified seniority rule in the reduction of forces and in the
reemployment of men, and (4) a signed agreement containing the
above sections. Although the respondent flatly refused to agree to
any of these terms it listened to all of the arguments of District
No. 9 concerning each and in return stated and explained its own
position. It is clear that District No. 9, feeling that it had obtained
no substantial concessions, did not request the respondent to embody
those matters upon which the parties were in agreement in a written
and signed contract.
Under all these circumstances the respondent appears to have com-
plied. with the requirements of collective bargaining set forth above
unless it be shown that the respondent clearly demonstrated its
bad faith in the negotiations by taking the position that it would
refuse to sign any contract with District No. 9, even though terms
should be agreed upon.
Although the case is not free of doubt we believe for the following
reasons that the evidence fails to show that the respondent took such
a position. First, Krag offered to renew the agreement of 1937 and
to write another letter to District No. 9 stating the terms of the
agreement. Second, Connors' testimony that Krag insisted he would
not sign any contract is occasionally qualified to indicate that Krag,
even if he did make such a statement, referred only to any contract
containing a provision for a union shop 14 The fact that the parties
at no time on December 22, 1938, or thereafter, discussed any pro-
posed contract which did not contain a provision for a union shop
lends support to this view.15 Third, various members of the shop
committee who were present and participated at the negotiations
Is As stated , Connors requested sanction for a strike for the purpose of obtaining a
signed agreement providing for a union shop and ' a 10 per cent an hour increase in pay.
14 See footnote 9, supra
15 See Matter of Aronsson, Printing Company and Detroit Printing Pressmen's, and Assist-
ants ' Union No. 2 and Detroit Bindery Workers' Union No. 20 and Detroit Typographscat
Union No. 18 , 13 N. L. R B 799.
1326 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
testified at the hearing but failed to mention occurrences' at the
bargaining conferences. Finally, the failure of District No. 9 to
request the respondent to embody the matters upon which the parties
were in agreement in a signed contract would indicate that negotia-
tions failed, not because there was a refusal by the respondent to
enter into any signed contract as claimed by District No. 9, but rather
because an impasse was reached 16 The fact that the parties engaged
in extensive conversations concerning terms of the proposed contract
after December 22, 1938, a date upon which the respondent allegedly
stated that it would not sign any contract with District No. 9 even
though terms should be agreed upon, is further indication that the
respondent made no such refusal as that attributed to it by District
No. 9.
We' find that. during their negotiations on and after December 22,
1938, the respondent and District No. 9 reached an impasse in a
dispute over sections of a proposed contract providing for a union
shop, general wage increases, and an unqualified seniority rule cover-
ing the reduction of forces and reemployment of men,17 and that
because of this impasse most of the respondent's employees went on
strike on January 12, 1939.
On. the basis of all the evidence we find that the respondent has
not refused to bargain collectively with the representatives of its
employees. In view of this finding, further findings on the matters
of majority representation by District No. 9 and the appropriate unit
are not necessary."'
The allegation of the amended complaint that the respondent re-
fused to bargain collectively with District No. 9 as the representative
,of its employees in an appropriate unit will be dismissed.
C. The alleged discrimuinatory refusals to reinstate
For two weeks or more after January 12, 1939, between ' 65 and 68
,of the respondent's 74 production and maintenance employees par-
ticipated in the strike. Thereafter they began, one by one, to desert
the picket line and return to work. On or about February- 7, 1939,
10 See Matter of Cullom & Ghertner Company and International Brotherhood of Book-
binders, Local No 83, 14 N. L. R. B 270.
14 See Matter of , Cullom & Ghertner Company and International Brotherhood of Book-
binders, Local No. 83, 14 N. L R. B 270 ; Matter of Adams Brothers Manifold Printing
Company, doing business as Adams Brothers Salesbook Company, and Topeka Typographi-
cal Union, No 121, Affiliated with the American Federation of Labor, 17 N L. 11- B 974.
10 The parties agreed at the hearing that the respondent 's maintenance and production
employees at its St . Louis plant, excluding watchman , supervisory , and clerical employees
constituted a unit appropriate for the purposes of collective bargaining . At the hearing
District No. 9 introduced undisputed evidence of majority representation within the appro-
priate unit. The respondent did not at any time here involved question that District No. 9
represented a majority of its employees in an appropriate unit
AMERICAN SHOE MACHINERY & TOOL COMPANY 1327
the respondent sent a letter to each of the striking employees 19 urg-
ing, them to return to work and stating among other things, "if you
have no further interest in your jobs here and do not let us know your
position before February 14, we will be forced to consider other
applications now on file."
By March 9 a total of 18 strikers had returned to work, 13 of them
after February 7. Between February 20 and March 15, 1939, the
respondent hired 13 men not formerly employed to replace strikers.
On March 16 a committee of strikers called on Krag and inquired
about returning to work. Krag informed them that everyone could
not return immediately because of a curtailment of the respondent's
operations and because the former places of some of them had been
filled by new men. On March 18 the strikers held a meeting at which
they voted, without the approval of District No. 9, that everyone
should report for work on March 20.
Thereafter, when the strikers applied for their former jobs, the
respondent reinstated as many of them as it had places for ,to the
available positions. In so doing it reinstated a large number of the
members of Lodge No. 41. The respondent refused to reinstate 13
members of Lodge No 41, all of whom are named in the amended
complaint '21) for the reason that their former positions had been filled
directly or indirectly by the new employees 21 hired between February
20 and March 15, 1939. At the hearing the respondent expressed its
willingness to reinstate the above-mentioned 13 individuals if and
when work should become available for them.
We have found that the respondent has not refused to bargain col-
lectively with the representatives of its employees and that the sub-
stantial cause of the strike 'was the impasse reached by the parties on
December 22, 1938, on the question of a contract providing for a union
shop, general wage increases, and an unqualified seniority rule. The
strike resulted from an economic conflict between the respondent and
District No. 9, rather than because of any unfair labor practices by
the respondent. Under these circumstances, the respondent, in fur-
29 Apparently the respondent also gave a copy of this letter to each of its employees who
had returned to work.
10 The names of these employees and the dates upon which they applied for and were
refused reinstatement are :
George William Engel ------ March 17, 1939 George W Fiala ---------- March 20, 1939
Ralph Heeter_____________ March 18, 1939 John Phillip Dauster______ March 20, 1939
Peter 1lfessina------------ March 18, 1939 William Dietz ------------- March 20, 1939
Eugene Declue------------ March 20, 1939 Walter W Schoenfield_____ March 20, 1939
Edward J. Schindler-_--__- March 20, 1939 John IZrawiecki----------- March 20, 1939
Albert II. Schmand ------- March 20, 1939 Frank Friedrich ----------- March 22, 1939
J. Herman Anderson---___ March 20, 1939
21 It appears that the former jobs of some of the 13 men named in the amended com-
plaint were filled directly by new employees . In other cases their jobs were filled in whole
,or in part by former employees whose former jobs were , in turn, filled in whole or in part
by new employees.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therance of its position in the conflict was, justified in hiring the new
employees and in refusing thereafter to displace them in favor of
strikers who wished to return to work. 22
We find that the respondent has not refused to reinstate any of
the 13 men named in the amended complaint because of their mem-
bership or activity in Lodge No. 41. We shall order that the amended
complaint be dismissed in this respect.
D. Alleged interference, restraint, and coercion
As previously stated, the amended complaint alleged in substance
that the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act
in that it discouraged membership in Lodge No. 41 by acts and con-
duct including, but not limited to, the following : (a) threatening to.
close, the plant unless' employees should abandon the strike, (b)
threatening to replace striking employees with new employees, and
(c) inducing members of Lodge No. 41 to disavow the acts of their
authorized representatives and to abandon the strike.
In his Intermediate Report the Trial Examiner set forth the alle-
gation of the amended complaint that the respondent had violated
Section 8 (1) of the Act by threatening to close its plant unless the
employees should abandon the strike, and recommended that this al-
legation should be dismissed for lack of supporting evidence. The
Trial Examiner made no findings or recommendations concerning the
other alleged violations of Section 8 (1) of the Act set forth in the
paragraph above.
In its Exceptions to the Intermediate Report District No. 9 ex-
cepted (1) to the failure of the Trial Examiner to find upon the evi-
dence that the respondent by threatening to replace striking employ-
ees with new employees and by inducing members of Lodge No. 41
to disavow the acts of their authorized representatives and to abandon
the strike interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8
(1) of the Act; and (2) to the failure of the Trial Examiner to find
that by such violation of Section 8 (1) of the Act, the respondent
caused a prolongation of the strike among its employees which
commenced on January 12, 1939.
We have considered the Exceptions filed by District No. 9 and all
of the evidence in support of the allegations in the amended com-
plaint of a violation of Section'8 (1) of the Act by the respondent.
22 See N. L. R. B. V. Mackay Radio and Telegraph Company, 304 U. S 333, enf'g Matter
of Mackay Radio and Telegraph Company, Q. Corporation, and American Radio Telegra-
phists' Association, etc, 1 N, L. R. B. 201,
AMERICAN SHOE MACHINERY Sr TOOL COMPANY 1329
On the basis of all of the evidence and in view of our finding that
the strike by the respondent's employees starting on January 12, 1939,
was not caused by unfair labor practices of the respondent, we find
that the respondent has not interfered- with, restrained; and coerced
its employees within the meaning of the Act. We shall order that
the amended complaint be dismissed in this respect.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAw
1. The operations of the respondent, American Shoe Machinery &
Tool Company, occur in commerce, within the meaning of Section 2
(6) -of the Act.
2. Progressive Lodge No. 41, International, Association of I Iachin-
ists, and International Association of Machinists, District No. 9, are
labor organizations, within the meaning of Section 2 (5) of the Act.
3. The respondent has not refused to bargain collectively with the
representatives of its employees, within the meaning of Section 8 (5)
of the Act.
4. The respondent has not discriminated in regard to hire or tenure
of employment, thereby discouraging membership in a labor organiza-
tion, within the meaning of Section 8 (3) of the Act.
5. The respondent has not interfered with, restrained, or coerced
its employes in the exercise of the right's guaranteed in Section' 7 of
the Act, within the meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
amended complaint against American Shoe Machinery & Tool Com-
pany, St. Louis, Missouri, be, and it hereby is, dismissed.