Brown Shoe Co., Inc.

National Labor Relations Board - Board Decisions

May 29, 1936

1 N.L.R.B. 803 (N.L.R.B. 1936)

In the Matter of BROWN SHOE COMPANY, INC., A CORPORATION and
BOOT AND SHOE WORKERS' UNION, LOCAL No. 655
Case No. C-20.-Decided May 09, 1936
Shoe Industry-Interference , Restraint or Coercion : espionage ; employment
of labor spies and strike-breaking agency to destroy union ; by civic clubs and
organizations ; by public officials , business men and towns-people ; initiating and
fostering anti-unionism among public officials and towns-people ; threat to trans-
fer plant ; intimidation ; vilifying union and its leaders and organizers ; dis'-
crediting union leaders ; circulating anti-union petition in plant ; terroristic
activities against union members, leaders and organizers ; during strike-Strike:
intervention by police-Discrimination : non-reinstatement following temporary
lay-off-Reinstatement Ordered, Non -Strikers-Back Pay: awarded-Reinstate-
ment Ordered , Strikers : strike provoked by employer 's law violation ; displace-
ment of employees hired during strike ; preferential list ordered , including.
Mr. David C. Shaw for the Board.
Nagel, Kirby, Orrick & Shepley, by Mr. Ethan A. H. Shepley, of
St. Louis, Mo., for respondent.
Mr. A. L. Schweitzer, of St. Louis, Mo., for the Union.
Mr. Fred. G. Krivonos, of counsel to the Board.
DECISION
STATEMENT OF CASE
Charges having been duly filed by Boot and Shoe Workers' Union,
Local No. 655, of Salem, Illinois, hereinafter termed the union, the
National Labor Relations Board, by its agent, the Regional Director
for the Fourteenth Region, issued and duly served its complaint dated
October 30, 1935, against Brown Shoe Company, Inc., St. Louis, Mis-
souri, a corporation,'respondent herein, alleging that the respondent
has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8, subdivisions (1) and (3)
and Section 2, subdivisions (6) and (7) of the National Labor Rela-
tions Act, approved July 5, 1935, hereinafter termed the Act. The
complaint, in brief, alleges :
(1) That the respondent, a New York corporatioii, with its prin-
cipal office and place of business in St. Louis, Missouri, is engaged,
principally, in the manufacture, production, sale and distribution of
shoes in interstate and foreign commerce, and, in the course of such
803
804 NATIONAL LABOR RELATIONS BOARD
operations , operates - a plant for the assembly , manufacture and pro-
duction of shoes in the town of Salem, Illinois, hereinafter termed the
Salem plant.
(2) That the respondent , on or about September 24, 25 and -27,
1935 , laid off and thereafter refused to reinstate Reba Powell , Dorothy
Harvey, Fonda Wheat and Muriel Vanatta , shoe workers employed
at the Salem plant, because they had joined and assisted the union.
(3) That the respondent , by statements , suggestions , implications
and other conduct of its officers and agents, induced and urged cer-
tain citizens of the town of Salem, Illinois, to coerce, intimidate,
interfere with and restrain the employees of the respondent at the
Salem plant from joining , forming and assisting the union and from
engaging in concerted activities for collective bargaining or other
mutual aid or protection , and that such citizens have so coerced and
restrained such employees by warnings, threats, acts of violence and
other conduct.
(4) That the respondent , by its officers and agents , has attempted
to discourage membership in the union , by threatening to close the
Salem plant and to move it elsewhere if the employees in the plant
continued in their union activities , by exhibiting open hostility to
the union and its activities , by threatening employees with discharge
or discrimination for joining the union , and by other forms of
intimidation , discrimination and coercion.
The respondent 's answer admits its corporate organization and
the nature of its business as alleged in the complaint , but denies
that its manufacturing operations at the Salem plant constitute
interstate commerce ; the answer admits the lay-offs of the four em-
ployees alleged in the complaint , but denies that they were refused
reinstatement or that they were laid off because they had joined or
assisted the union . The answer denies each and every other allega-
tion in the complaint.
Pursuant to notice thereof, Alphonse G. Eberle, duly designated by
the Board as Trial Examiner , conducted a hearing commencing No-
vember 13, 1935, at St . Louis, Missouri . The respondent appeared
by its counsel , Ethan A. H. Shepley . The union appeared by A. L.
Schweitzer . The Board was represented by its Regional Attorney.
Full opportunity to be heard, to cross-examine witnesses, and to
produce evidence was afforded to all parties.
The respondent 's motion to dismiss the complaint, based on allega-
tions of the unconstitutionality of the Act, and its motion to strike
certain paragraphs of the complaint ( both motions combined with
its answer ), were denied by the Trial Examiner . The respondent's
motion to dismiss the complaint , made during the hearing , for want
of evidence to sustain the allegations concerning the Board's juris-
DECISIONS AND ORDERS 805
diction under the Act and to sustain the allegations of unfair labor
practices, was also denied by the Trial Examiner. The allegations
of the complaint concerning Fonda Wheat were dismissed on motion
by counsel for the Board. These rulings are affirmed by the Board.
Acting pursuant to Article II, Section 35 and 36 (a) of National
Labor Relations Board Rules and Regulations-Series 1, the Board
ordered the proceeding to be transferred and continued before it
and ordered the Trial 'Examiner to file an intermediate report with
the Board. Upon the record made in the proceeding, the steno-
graphic report of the hearing and all evidence, oral and docu-
mentary, offered and received at the hearing, the Trial Examiner
filed an intermediate report with the Board, finding and concluding
that the evidence is insufficient to sustain the allegations of the com-
plaint that the lay-offs of Reba Powell, Dorothy Harvey and Muriel
Vanatta were discriminatory because of union affiliation or activity;
that although there is positive testimony of anti-union conduct by
certain citizens of Salem in total disregard of the constitutional
rights of the respondent's employees, the evidence does not show
any connection, by means of authorization or agency, between the
respondent and the conduct of the citizens of Salem; and that the
evidence does not support the allegations of interference, intimida-
tion and coercion. The Trial. Examiner recommended, therefore,
that the complaint be dismissed. Evidence of intimidating conduct
and statements by various citizens of Salem was admitted at the
hearing under a ruling that it would be stricken and disregarded
by the Trial Examiner if no connection between the citizens and
the respondent were shown. The intermediate report accordingly
recommends and rules that such testimony be stricken and disre-
garded. In view of his findings and recommendations as to the un-
fair labor practices, the Trial Examiner made no findings as to the
nature of the respondent's business operations in relation to inter-
state commerce. The union filed exceptions to the intermediate re-
port, contending that the Trial Examiner erred in his findings and
conclusions and that the evidence at the hearing warranted findings
that the respondent had engaged in unfair labor practices as alleged
in the complaint.
After a review of the record in this proceeding, the Board finds
material findings and conclusions of the Trial Examiner to be erro-
neous and contrary to the evidence. The Board finds the evidence
recommended by the Trial Examiner to be stricken to be relevant
and material to the issues in the proceeding and the Trial Ex-
aminer's recommendation in that respect is rejected and his ruling is
reversed. The Board finds no prejudicial error in any of the Trial
Examiner's other rulings on objections and exceptions to the intro-
806 NATIONAL LABOR RELATIONS BOARD
duction of testimony and motions to strike testimony; if anything,
we find many of his rulings sustaining the respondent's objections to
the introduction of evidence to have been made upon the basis of a
narrow view of the scope of the allegations in the complaint, and
thus distinctly favorable and advantageous to the respondent. In
view of these conclusions, this decision does not discuss in detail the
union's exceptions to the intermediate report.
Upon the entire record in the proceeding, including the pleadings,
the stenographic transcript of the hearing, and the documentary and
other evidence offered and received at the hearing, the Board makes
the following :
FINDINGS OF FACT
A. THE RESPONDENT AND ITS BUSINESS
Generally
I. The respondent, Brown Shoe Company, Inc., originally or-
ganized in 1879 as a Missouri corporation, became a New York cor-
poration in 1913, has its principal office and principal place of busi-
ness in the City of St. Louis, Missouri, and is engaged in the manu-
facture, production, sale and distribution of a complete line of
medium-priced men's, women's and children's shoes.
II. (a) The respondent is the third largest shoe manufacturing
company in the United States. Its stock is listed on the New York
and St. Louis stock exchanges. It owns and operates 14 shoe fac-
tories, one in St. Louis and 13 in small towns located in four states
within a short radius of St. Louis. The respondent also operates in
St. Louis two general offices and warehouses, two other warehouses,
a general supply plant, a plant for manufacturing paper boxes used
for packing and shipping shoes, and a sole leather plant. Through
its wholly owned subsidiary, the Moench Tanning Company, Inc., it
operates two tanning plants in Gowanda, ' New York, one for sole
leather and one for upper leather.
(b) Prior to about 1915, the greater part of the respondent's opera-
tions were carried on in St. Louis. As its business grew, competition
and the consequent search for cheaper labor led the respondent to
establish plants in small towns comparatively close to St. Louis,
some of them in states other than Missouri. The movement to the
small towns, in fact, began nearly ten years earlier. Beginning with
'The respondent 's registration statement filed with the Securities and Exchange Com-
mission under Section 210 of the Securities Exchange Act of 1934 (15 U. S. C. A., Section
78a et seq ), lists these factories ( Exhibit B-3) as follows:
Brookfield , Missouri Litchfield, Illinois Sullivan . Illinois
Caruthersville , Missouri Mattoon, Illinois Vincennes , Indiana
Moberly, Missouri Murphysboro, Illinois Union City, Tennessee
Charleston, Illinois Pittsfield, Illinois
Dixon , Illinois Salem, Illinois
DECISIONS AND ORDERS 807
the respondent's Moberly plant in 1907, small-town plants of the
respondent have been built with funds subscribed by representative
citizens in each of these towns. The typical agreement between the
respondent and these citizens provides for a fixed sum to be furnished
by the citizens for the erection of the factory, for the respondent
to expend a fixed minimum sum for labor in the operation of the
plant during a specified period of years (usually ten years), and for
reconveyance of the plant to the citizens in the event of the respond-
ent's discontinuance of operation of the plant within the specified
period, excepting plant shut-downs caused by calamities or trade or
labor conditions (Exhibit B-16). With the expansion of the re-
spondent's business after 1925, still more plants were located in small
towns near St. Louis; in October 1935, five of the respondent's 13
small-town plants were still subject to the reconveyance clause (Ex-
hibit B-3). It has been the respondent's policy to confine many of
these plants to specialized types of shoes. Thus the Salem plant
makes ladies' shoes; the Moberly, Missouri, plant, which had been
making nail and welt shoes, was restricted to sewed shoes, and the
nail shoes were moved to the Pittsfield, Illinois, plant.
(c) The respondent owns about 70 per cent of its machinery and
leases 30 per cent, comprising its larger machines, from several shoe
machinery manufacturers, chiefly the United Shoe Machinery Com-
pany. It is comparatively easy for the respondent to close any of its
manufacturing plants and move it to another town. In addition to
plants already owned by the respondent, plant sites are readily avail-
able-the respondent is constantly being solicited by groups of citi-
zens, from small towns surrounding St. Louis, seeking the location
of plants.
(d) The respondent's operations in all of its plants are directed
from its principal offices in St. Louis. A central committee com-
posed of its chief officers determines its operating policies, including
its general labor policy. For over a year, until September 16, 1935,
the respondent employed an industrial relations counselor to advise
and direct its labor policy and labor relations. Two general super-
intendents divide the general supervision of the various plants. A
traffic manager schedules the movement of supplies from St. Louis to
the various plants, and of finished shoes from the plants to the ware-
houses in St. Louis.
(e) Approximately half of the sole leather and upper leather used
in the respondent's operations is supplied by the tanneries of its sub-
sidiary, the Moench Tanning Company, Gowanda, New York. The
balance of its leather is purchased from tanneries in Pennsylvania,
Delaware, Massachusetts, New York, Michigan, Wisconsin and Illi-
nois. Other supplies used in the respondent's operations come from
97571-36---vol. i- 52
808 NATIONAL LABOR RELATIONS BOARD
various states of the United States. The leather and other supplies
are shipped to the respondent's warehouses in St. Louis. Some of the
upper leather is sorted there.
(f) The respondent cuts soles, builds heels and manufactures cer-
tain of the inks, dyes and stains, and boxes and cartons for its own
products. Soles are rough shaped, counter boxes and box toes are
made, wooden heels, laces , eyelets, dyes, inks and other shoe supplies
are made and assembled in its, warehouses and plants in St. Louis.
These constitute partly finished parts of shoes sent to the other plants
in Missouri and to the plants in other states for further processing
into finished shoes.
(g) Supplies and materials essential for the construction and as-
sembly of shoes in practically all the small-town plants of the re-
spondent, as well as cartons and boxes in which the shoes are packed
at the plants when completed, are loaded on trucks at its warehouses
and plants in St. Louis, Missouri, and transported to its small-town
factories , most of them in other states.2 The trucks are sealed when
loaded. A list of contents and instructions for the processing, cut-
ting, construction and assembly of materials into finished shoes at
the factories accompany shipments. The trucks consist of tractors,
and trailers into which the supplies are packed. The trailer is trans-
ported to its destination, unhooked at the particular plant from the
tractor, which is then attached to another trailer into which cartons
and boxes of shoes, completed at the plant from materials and sup-
plies previously received, had been packed. These are transported
to the respondent's warehouses in St. Louis, for distribution to its
customers throughout the United States. The respondent's traffic
manager maintains a schedule of truck movements, based on produc-
tion schedules. The trucks used in the respondent's interstate trans-
portation of materials and completed shoes to and from its plants
are owned by Ben Gutman, Inc., who characterizes himself as the
"transportation division" of the respondent. The trucks bear the
name of the respondent and of brands of its shoes. Gutman, Inc. is
paid by the respondent on a mileage, time and service basis.
(h) The approximate aggregate production capacity of all of the
respondent's plants is 18,000,000 pairs of shoes a year. For the fiscal
year ending October 31, 1934, the respondent produced 13,700,000
pairs; during the six months following, it produced about 6,000,000
pairs, indicating a production of 12,000,000 pairs for the fiscal year
1935. The respondent's business for the fiscal year 1934 was approxi-
mately $26,800,000; its operating costs were about $25,260,000. In
the six months following, sales totalled about $12,332,960, and operat-
2 There is testimony that some of the shipments between St Louis and the Vincennes,
Indiana plant are by rail . There is no evidence of the method of transportation between
St Louis and the Dlurphysboro , Illinois and Union City , Tennessee , plants.
i
DECISIONS AND ORDERS 809
ing costs $11,663,258. The shoe factory labor cost of the respondent's
products, in relation to the wholesale price, is approximately 25 to 27
per cent; materials cost about 60 per cent. The remaining 13 to 15
per cent represents administrative and other operating costs, and
profits. The respondent's total employees number approximately
10,400; of these, 7,500 to 8,000 are shoe workers.
(i) The respondent operates sales offices in St. Louis, Missouri, and
in Chicago, Illinois. It has six selling branches or divisions, the
Brown Shoe Company ,3 the Central Shoe Company, Blue Ribbon
Shoemakers, Mound City Shoe Company, United Shoe Manufactur-
ing Company and Forest Park Shoe Company. It employs 300 sales-
men, "out on the road" all over the United States; some of them
maintain offices. The respondent's shoes are sold in 15 to 20 thou-
sand retail stores throughout the United States. Of these, the
"Brown plan" stores buy and sell shoes made by the respondent ex-
clusively in return for the use of the respondent's name and consider-
able credit.4 The respondent's shoes are sold under its own brands,
such as Buster Brown, Brownbilt, Tread Straight, Blue Ribbon and
Air-step, and under the private brands of retailers. Small portions
of its product are sold to certain large consumers and still smaller
portions are sold abroad. The respondent also purchases and resells
to domestic retailers small amounts of rubbers, overshoes and
slippers. The respondent, at various times, engages in nation-wide
advertising campaigns in magazines. It has advertised over the
radio. It advertises in the national trade journals of the industry
(Exhibit B-6).
The Salem,, Illinois, plant
III. (a) Among its small-town plants specified above, the respond-
ent operates a plant at Saleni, Illinois, for the assembly, manufacture
and production of women's shoes. Here is produced, principally, the
respondent's line of Air-step shoes, a patented advertised brand
(Exhibit B-6).
(b) The Salem plant was built in 1925, after a group of repre-
sentative citizens of the town had subscribed $100,000 for the erection
of the factory. The agreement between the citizen subscribers and
the respondent (Exhibit B-16) provided that the respondent be fur-
nished with a warranty deed to a factory site, and the amount sub-
scribed in cash, and for the rebate of all taxes, license fees and water
Not Brown Shoe Company, Inc, i espondent herein.
The respondent's Securities and Exchange Commission registration statement (see
note 1) lists six retail stores as subsidiaries of the respondent, in process of liquidation
or disposal. According to the testimony of E R. McCarthy, the respondent's vice-presi-
dent, these stores were taken over as security for unpaid accounts, to be disposed of in
payment thereof.
•
810 1 ATIONAL LABOR RELATIONS BOARD
rates for ten years. The respondent, in turn, agreed to expend for
labor in the operation of the plant not less than $1,250,000 during
the first ten years. The respondent also agreed to reconvey the plant
to the citizen subscribers in the event it discontinued its operations
within the ten-year period, excepting shut-downs rendered necessary
by casualties, calamities or causes beyond its control, including labor
or trade conditions. An additional $25,000 was subscribed later for
the erection of an extension to the plant, under similar terms. The
respondent fulfilled its payroll obligations under the agreement in
about five years, and owns the Salem plant in fee.
(c) The Salem plant has a production capacity of approximately
4500 pairs of shoes a. day. The plant averages a production of about
1,000,000 pairs a year. About 900 workers are employed in the plant.
In the respondent's fiscal year 1934, ending October 31st, the annual
payroll in the Salem plant totalled $400,000; in the fiscal year 1935
it was $500,000. There are two peak production seasons during the
year, January, February and March in the spring season , and July,
August and September, in the fall season . Production tapers off
after the capacity months until approximately April 30th and Octo-
ber 30th, which mark the start of the two annual inventory periods.
(d) The great majority, about 95 per cent, of the materials and
supplies 5 used in the construction of shoes at the Salem plant are
delivered there by truck, tractor and sealed trailer (see finding II (g)
above), from the respondent's plants and warehouses in St. Louis,
Missouri. No waybills and freight receipts are used. A list of
contents, and instructions, made out in St.. Louis, for the cutting of
the leather and the construction of shoes from supplies so delivered,
accompany the shipments. The frequency of shipments is deter-
mined by a weekly schedule sent to the Salem plant by the respond-
ent's traffic manager in St. Louis. When it arrives, the trailer is
parked in a dock or shed at the Salem plant; the seal is broken and
the trailer is unloaded by employees of the respondent. The un-
loaded trailer is then filled with completed shoes, in boxes and car-
tons, each pair in a box, sealed and sent back to the respondent's
warehouses in St. Louis, for distribution to its various customers
throughout the United States. The respondent's shipping clerk
checks incoming shipments of materials and checks and lists outgoing
shipments of shoes.
(e) About 60 per cent of the shoes manufactured at the Salem
plant are the respondent's line of Air-step shoes. The rest bear
various brands, as ordered. Normally, about 90 per cent of the
E The supplies and materials include upper leather, soles cut out in the rough, bases and
blocks for leather heels, tops for wood heels, wood heel blanks, laces, eyelets, counter
boxes, box toes, dyes, inks, thread, practically everything that goes into the making of a
shoe, and cardboard boxes and cartons for packing completed shoes, each pair in a box.
0
DECISIONS AND ORDERS 811
shoes made at the Salem, Illinois plant are shipped to the respond-
ent's warehouses in St. Louis, Missouri, as set forth above; about 10
per cent consist of "special orders" shipped directly to customers in
various states . These proportions vary, the special orders sometimes
amounting to about 25 per cent.
Interstate commerce
IV. (a) The course of the respondent's operations produces an
unmistakable and continuous flow of large quantities of supplies
and materials used in the production of shoes from states other
than the State of Missouri to its plants and warehouses in St. Louis,
Missouri , and from such plants and warehouses to its various small-
town plants in states other than the State of Missouri ; and of com-
pleted shoes from such small-town plants to its warehouses in St.
Louis, Missouri , and thence throughout the United States and to
foreign countries.
(b) The respondent not only receives its raw materials from many
states throughout the nation and sells and distributes its product
all over the' United States, but its method of manufacturing is itself
uniquely interstate in character. The respondent's production sys-
tem necessitates and sets into motion a constant flow of goods be-
tween its base of supply and place of warehousing in St. Louis,
Missouri, and its small-town factories in other states. The manu-
facture of most of its product is dependent upon this flow, and is
dependent on a labor market in several states. The respondent's
assembly lines virtually extend from St. Louis, Missouri, into three
other states. The mass production of shoes, as practiced by the re-
spondent-the very manufacturing process-necessarily, directly
and substantially transcends state boundaries, so that of its own
nature, and apart from the flow of raw materials to the respondent
in St. Louis and of finished shoes from St. Louis throughout the
nation , it constitutes interstate commerce.
(c) The continuous flow of goods in the course of the respondent's
business is unmistakably marked in the respondent's operation of the
Salem plant, where there is also a minor flew of materials to such
plant and of finished shoes from such plant directly to purchasers
in other states. The Salem plant assembly line is in effect an exten-
sion of the respondent's manufacturing process initiated in St. Louis.
Supplies and materials, for the assembly of shoes, many of them par-
tially processed there, flow in a continuous stream from St. Louis,
Missouri, to Salem, Illinois, and there pass the benches of the re-
spondent's 900 employees, where, by a continuous chain of specialized
operations of processing and assembly, they are constructed into
shoes, packed into individual boxes and cases, and then shipped, to
812 NATIONAL LABOR RELATIONS BOARD
a minor extent, directly to customers throughout the United States,
but principally back to the respondent's St. Louis warehouses,
whence, together with shoes similarly processed in other states, they
are distributed to such customers.
(d) The respondent's operations, generally, constitute a continuous
flow of trade, traffic and commerce among the several States.
(e) The respondent's operations in the Salem plant constitute a
continuous flow of trade, traffic and confnence among the several
States.
B. THE UNION; THE JOINT SHOE COUNCIL
V. (a) Local No. 655 is a labor organization which is a local of
the Boot and Shoe Workers Union, affiliated with the American
Federation of Labor. The union is composed of shoe workers em-
ployed by the respondent in its Salem plant. It was organized in
the fall of 1933, with a membership of about 66. By the winter and
spring of 1934-1935 it had grown to a membership of about 800 to
850. In the summer of 1935, membership was about 600; at the
time of the hearing it was about 150 to 200.
(b) In the spring of 1934, seven locals of the Boot and Shoe
Workers Union, embracing workers in seven of the respondent's
small-town plants, were organized into a Joint Shoe Council of the
Brown Shoe Company plants, in order to present a "united front"
to obtain a joint working agreement with the respondent for all
such plants. The Joint Shoe Council included representatives of
Local 655 of Salem, and of the union locals in Sullivan, Mattoon,
Charleston, and Murphysboro, Illinois, Moberly, Missouri , and Vin-
cennes, Indiana.
C. BACKGROUND OF RELATIONS BETWEEN THE RESPONDENT AND THE UNION
VI. (a) About May 1934, the union local in each of the seven
plants of the respondent represented in the Joint Shoe Council, in-
cluding Salem, called a strike upon receiving word from its repre-
sentative that the respondent had failed to appear to negotiate a
joint working agreement at a. conference scheduled with the Joint
Shoe Council in Mattoon, Illinois. The strike lasted about three
weeks; all of the seven plants were shut clown. The strike was set-
tled after a conference in St. Louis between representatives of the
locals and officers of the respondent, including its president, John
A. Bush. The terms of the settlement, embodied in a memorandum
signed by Bush (Exhibit B-27), provided: "No Union recognition.
No discrimination against the Union. No immediate flat wage or
piece price increase. All questions of piece prices, wages, working
conditions and differences to be taken up in each individual factory
for settlement by a Committee consisting of one employee from each
DECISIONS AND ORDERS 813
department and one other of their own choosing, the Factory Super-
intendent and the General Superintendent or his representatives." 3
A majority of the locals voted to accept the, settlement terms and
all seven plants resumed operations.
(b) Shortly after the strike settlement, Bush employed A. A.
Abner, owner and president of Industrial Investigators and Engi-
ners, Inc., and of the A. A. Abner Detective Agency, Inc., both
organized about 1928, as "industrial relations counselor" for the re-
spondent, at a salary of $200 per month and expenses. His name
and title of industrial relations counselor were printed on the re-
spondent's stationery (Exhibit B-26). Ahner's employment in this
capacity, according to his own testimony, began before the workers
at the Moberly plant returned to work after the strike, and con-
tinued for over a year, until September 16, 1935. Harry Widman,,
associated with Abner in his business, was later employed by the
respondent, upon Ahner's recommendation, as his assistant.? Ahner,
before organizing his own companies, was what is called by detec-
tives an "operative", and for five years St. Louis district manager,
of the Railway Audit and Inspection Company, a nation-wide pri-
vate detective agency engaged largely in "investigating" labor union
activities, breaking strikes and furnishing guards and strike-break-
ers. He has had wide personal experience as a labor spy by joining
labor unions to report their activities to employers. The ostensible
corporate purposes of the Abner Detective Agency are, broadly,
according to Abner, surveys, inspections, criminal and civil investi-
gations; his "Industrial Investigators and Engineers" was also in-
corporated to investigate all cases relating to industrial relations and
all phases of union endeavors and enterprises. Actually, Ahner has
a reputation as a professional strike-breaker and union-wrecker, an
employer of thugs, sluggers and armed guards in his strike-breaking
activities, a planter of labor spies in factories and labor organiza-
tions, an organizer of "independent" or company unions on behalf
of employers, has been implicated in "framing" union leaders, and
is notorious in the St. Louis industrial area for successful terrorism
in his chosen field. He operates; in Missouri, Illinois, Iowa, Kansas,
possibly Indiana, and "wherever we are sent." The annual gross
income of both his corporations is about $100,000. Ahner's activities
have been widely publicized in articles in the St. Louis "Post Dis-
patch", an important daily newspaper of wide circulation and na-
,",The settlement memorandum bears no date , contains no provision for the duration of
the arrangement and does not mention the respondent by its corporate name. It is en-
titled "Agreement with Committee of Employees from the following factories : Sullivan
Ills., Salem Ills ., Mattoon Ills ., Charleston Ills ., Murphysboro Ills., Vincennes Ind., Moberly
Mo " It is signed , "J A. Bush, Pres."
7 Abner testified that he had destroyed all records of his association with the respondent,
a procedure customary in his work.
814 NATIONAL LABOR RELATIONS BOARD
tional reputation. His activities have been condemned, by formal
resolution of the Central Trades and Labor Unions of St. Louis.
He is well known as the head of a "slugging outfit" and for inter-
ference, often by violence, with self-organization of workers and
their concerted activities for collective bargaining and mutual aid
and protection. Bush disclaimed any knowledge of Ahner's repu-
tation at the time he hired Ahner. To him he was a "square shooter",
employed at the suggestion of one of the respondent's officials, to
deal with the respondent's labor problems, then increasing in volume.
Bush telephoned only one of Ahner's several references, prior em-
ployers, to check on his honesty. Ekins, one of the respondent's
directors and a general superintendent, admitted he had learned of
Ahner's reputation after he was employed by Bush. The record
leaves no doubt that the respondent knew the true nature of Ahner's
profession and business at the time he was employed, and its rela-
tionship to labor unions. We cannot but conclude that his employ-
ment by the respondent immediately after the show of strength by
the strike of the seven local unions, including Local No. 655, united
in the Joint Shoe Council, was for the purpose of intimidating the
union locals, interference with their growth and activity and, most
likely, their destruction. Ahner's employment by the respondent
continued for more than two months beyond the effective date of
the Act, July 5, 1935, and during this time the Sullivan and Charles-
ton locals finally disintegrated (see finding VI (g) below), and
the disruption of Local No. 655 in Salem began (see findings VIII
and IX below).
(c) After his employment, Ahner made a tour of every plant of
the respondent "that had any union elements" and conducted open
meetings there. He appeared in Salem, with Bush, in the summer
of 1934. Employees in the Salem plant were assembled and Ahner
was introduced as the respondent's "industrial relations counselor."
In his speech, Ahner characterized himself as a friend of organized
labor, a former union member; he advised the employees that "the
matter of unionism was a voluntary one, . . . and that they were not
forced to become a member because some agent of the union said so."
Shortly after this speech, information of Ahner's reputation as a
strike-breaker reached and was spread among employees in the Salem
plant. Norris, the union organizer there, informed Finks, superin-
tendent of the Salem plant, that Ahner was connected with detective
agencies and was a strike-breaker, and requested that Ahner be elim-
inated from the union's dealings with the respondent in Salem.
Finks consulted Ekins, who, after getting the approval of Bush,
decided that labor grievances in Salem would be handled without
Ahner. There is no evidence that after his speech, Ahner appeared
DECISIONS AND ORDERS 815
in Salem again in his official capacity. But the respondent's labor
policy, the determination of important problems, was still made in
St. Louis, where Ahner acted as its chief labor adviser.
(d) Ahner admitted in his testimony, that in his work for the
respondent he employed investigators. He preferred the term "in-
vestigator" to "spy" in speaking of his operatives.
(e) Until several months before the hearing in this proceeding, the
respondent employed George Strong as a spy in the Salem plant. He
went about the plant with a candy wagon, ostensibly selling candy
and soft drinks to the respondent's employees. Actually, his work
was to report to Ekins what he had heard that would be likely "to
cause trouble." He was paid for each report on the basis of its value
to Ekins; the prices ranged from $8.00 to $100. Ekins admitted that
Strong had reported on labor matters, for example, a project to
organize an independent union in the Salem plant. Strong, before
he operated the candy wagon, worked in the Salem plant stock room;
he is now employed by the respondent in St. Louis, in one of the
leather departments; in the course of his present work, he still visits
various of the respondent's plants, including Salem. Ekins, to whom
he reported on the Salem plant, testified, "I had to have some infor-
mation . Mr. Ahner was entirely out of the Salem factory."
(f) In the summer of 1935 the Joint Shoe Council arranged a
meeting with the respondent to present proposals for a joint agree-
ment concerning wages, rates of pay and working conditions. On
July 22, 1935, representatives of the several union locals in the Joint
Council, including Salem, met at the Missouri Athletic Club in St.
Louis, with Ekins and Kaut, the respondent's general superintend-
ents, and Ahner, its industrial relations counselor. No business was
transacted at the meeting because of the absence of Bush. Ahner
made or secured a list of union representatives present, as evidence
that the respondent had met with representatives of its- employees.
Five of the union representatives present at the meeting-Norris,
union organizer in Salem , Gullion of Moberly, Hendrixson of Vin-
cennes, Davidson of Mattoon, McGonigal of Brookfield-testified that
sometime during the meeting Ahner stated that he had been hired
to destroy the unions in the respondent' s plants. Abner, Ekins and
Kaut, and Tyrell Lawyer, then president of the union local in Sulli-
van, denied that Abner had made such a statement. On August 12th,
the Joint Shoe Council again met representatives of the respondent,
including 'Bush and Ahner. The proposals for a joint agreement
were presented to Bush; but Bush refused to enter into any sort of
agreement with the Joint Council. Neither at this meeting, nor at
an intervening meeting of the Joint Shoe Council, was there any dis-
cussion of the anti-union statement claimed to have been made by
816 NATIONAL LABOR RELATIONS BOARD
Abner on July 22nd. None of the union representatives appears to
have complained of it to Bush or to have discussed it at their own
meetings.
(g) Early in August, 1935, the union local in the respondent's
Sullivan, Illinois plant burned its charter at a union meeting. Early
in September, the union local in the respondent's Charleston plant
voted to send its charter back to the national offices in Boston (Ex-
hibit B-7). The burning of the Sullivan charter took place under
circumstances strongly persuasive of collusion between Tyrell Law-
yer, the union local's president, and Ekins. The respondent closed
its Sullivan plant, after Lawyer had presented a protest to the lay-off
of an edge cutter, a union member, without seniority in his job, and
had supported a strike on that issue. There is testimony indicating
that the respondent's mimeographed notices announcing the closing
of the factory, issued on July 30th, were dated July 29th, the very
day of the strike. Lawyer testified he had advised Ekins to close
the plant. Lawyer was in close touch with Ekins just before the
charter was burned and telephoned him immediately after it was
done. Although Bush discharged him from the Sullivan plant,
through Ekins he was later employed by the respondent in St. Louis
as a salesman, at a salary of $25.00 a week while learning (Exhibits
B-17 to 22). The Sullivan plant reopened after the charter was
burned. Workers were required to register for reeinployinent at
the court house with a citizens' committee (Exhibit B-15). Later,
the Sullivan citizens' committee and the respondent's superintendents
published a joint advertisement in the Sullivan "Progress" thanking
the respondent's employees and others for their cooperation in the
reopening of the plant (Exhibit B-14). The Charleston plant was
closed at the time the union local there voted to return its charter.
The Decatur, Illinois "Herald", on September 12, 1935, reported,
"according.to authoritative reports from the Brown Shoe Co., in St.
Louis" that the Charleston plant would be reopened "as a result of
the action", and that "as soon as the officials of the Brown Shoe Co.
hear of the action in Charleston, machinery will be moved to Charles-
ton from the factory in Salem. This action is expected because of
the continued strength of the union in Salem." (Exhibit B-7; see
finding IX (f) below.) Widman, the assistant of Abner and his
associate in his business, worked in the respondent's Sullivan plant
as personnel man ; he also worked in Charleston, where the vote to
return the charter was preceded by the activities of a citizens' coin-
mittee in securing the signatures of 500 shoe workers to,an agreement
to return to work under "any conditions stipulated by the Brown
Shoe Company officials" (Exhibit B-7). Widman was practically
in complete charge of labor relations in the Sullivan and Charleston
DECISIONS AND ORDERS 817
plants, and turned over to Ekins only such problems as he could not
settle. He represented the respondent in its dealings with the union
locals in those plants.
Relation of the Salem plant to the town
VII. The town of Salem, Illinois, has a population of about 4,400.
The respondent's Salem plant plays a dominant role in the economic
life of the town's inhabitants, workers, business men and public offi-
cials alike. The payroll of the Salem plant furnishes the town with
its chief source of income, and is the basis of considerable credit
extended to employees in the plant by the merchants. Moreover,
news of labor relations in other of the respondent's small-town plants,
including those in Charleston and Sullivan, Illinois, located near
Salem, is rapidly transmitted to Salem and is a matter of common
interest and concern to its inhabitants, employees of the respondent
and the others. The merchants and public officials of Salem, many
of them subscribers to the $125,000 furnished the respondent for the
erection of its factory (see finding III (b) above), no less than the
workers, are deeply interested in keeping the Salem plant open and in
operation. The town's inhabitants are, consequently, keenly sensi-
tive to information which has a bearing or may have an effect on
their interest in the continued operation of the Salem plant. The
business men of Salem, in the summer and fall of 1935, were of the
impression that it would be easy to move the Salem plant. It was
known that the respondent's Charleston plant was closed at the time.
There is uncontradicted testimony in the record .that the Charleston
plant had in the spring of 1935, made some of the Air-step line of
shoes, the principal product of the Salem plant, and there is evidence
indicating that the Charleston plant had experimented with this line
of shoes and was available for their manufacture.
D. THE UNFAIR LABOR PRACTICES
Interference, restraint and coercion
VIII. The evidence in the record establishes that from early in
August to about mid-October, 1935, the town of Salem was the scene
of anxiety on the part of its business men, public officials, and super-
visory and shoe worker employees of the respondent, lest the Salem
plant be closed by the respondent, and of considerable activity by
these elements against the union and its organizer, Norris,8 which
amounted to a veritable anti-union drive. During that time rumors
s Morris Norris , the union organizer , was employed in the Salem plant in 1933. He has
since 1934, been the representative of Local No. 655 and of the national organization, the
Boot and Shoe Workers' Union.
8 18 NATIONAL LABOR RELATIONS BOARD
were persistent in the town and in the factory that the plant was to
be closed and the work moved elsewhere. There is evidence of direct
anti-union conduct during that period by business men and town
officials; by supervisory employees of the respondent; by shoe
worker employees of the respondent; and of conduct by business
men and town officials which, while not directly anti-union, has an
unmistakable anti-union significance in the light of the whole situ-
ation. These anti-union activities in Salem were aimed chiefly to
discredit Norris in the town and to get the union members to emulate
the union locals in Sullivan and Charleston and renounce the union
charter (see finding VI (g) above).
IX. (a) The impelling motive for the anti-union conduct of the
Salem inhabitants was the fear that the Salem plant would be closed
by the respondent and the work moved elsewhere. The germ of that
fear appears to have been first planted directly in Salem by the
respondent early in August, 1935, about the time the union local in
Sullivan had burned its charter after the closing of the Sullivan
plant. At that time, Eugene R. McCarthy, the respondent's vice-
president, actively engaged in the conduct of its affairs, visited Salem.
While there he had conversation with Omar J. McMackin, mayor
of the town, one of its leading merchants and a substantial sub-
scriber to the funds for building the Salem plant, and with several
other business men of the town. McMackin testified that there had
been rumors of a strike in Salem and that the merchants of Salem
were concerned that if there was a strike the plant might be moved
somewhere else. In reply to the question, "Had you any direct infor-
mation from any officials from the Brown Shoe Company, or any
hint or inference that that may be done?", he testified, "Mr. Mc-
Carthy . . . said they wanted to work the factory at Salem, that they
were making the Air-step shoe there, which was a very popular shoe,
and they wanted to know that they could have peaceful operation of
the factory, otherwise it might be necessary to do something else
about the Air-step shoe, (italics supplied) that they couldn't afford
to make contracts and sales and then have something happen there
which would interfere with the output of the shoe and their sales."
(b) McCarthy's statement to McMackin and the others brought
quick action by the Salem merchants. A few days after the con-
versation, at McMackin's suggestion, the majority of the leading
business men of Salem held a meeting at the country club of the
town. The business men called the meeting to seek a way of insur-
ing industrial peace so the factory would remain in Salem; the
current rumors concerning the possible closing of the Salem plant
were discussed. A committee of five, including McMackin, was ap-
pointed to meet officials of the union to talk over the situation. After
DECISIONS AND ORDERS 819
a conference between this committee and union officials, including
Denny, president of Local No. 655, the committee sent a letter dated
August 8, 1935, to McCarthy (Exhibit R-5), informing him of the
conference, expressing the realization of the union officials that a
shut-down of the Salem plant would injure the town, requesting the
respondent to deal fairly with the union at the then impending meet-
ing of the respondent and the Joint Shoe Council on August 12th
(see finding VI (f) above), and hoping that the meeting would
result in a satisfactory agreement, "whereby the Salem plant may
continue to operate." This letter was read by Denny at a union
meeting on August. 15th, and was approved on motion (Exhibit
R-8 f ).
(c) The August 15th union meeting was called for all 1935 union
card holders. The announcement of the meeting, chalked on a side-
walk near the factory, bore the words "Strike Vote." When the
members had assembled, the card holders whose dues were in arrears s
were, on a motion made by Arthur Seibman, later active against
Norris and the union and characterized by union officials as an agita-
tor, asked to leave. A motion to strike in support of the Sullivan
local was then defeated by a vote of 250 to 6. Tyrrell Lawyer, pres-
ident of the Sullivan union local, implicated in the burning of its
charter and in collusion with the respondent in anti-union activities
in Sullivan (see finding VI (g) above), had appeared before Local
No. 655 at a meeting in Salem shortly before this, and explained
the situation in Sullivan. Lawyer, in his testimony, denied that he
made a plea for a sympathetic strike in Salem.
(d) On the evening of August 25th, Morris Norris, the union or-
ganizer, was decoyed from his home in Salem by a telephone call, and
slugged-beaten on the head and kicked in the mouth. He reported
the case to the local state's attorney. No official action resulted from
his complaint. There is evidence in the record that officials of union
locals in other of the respondent's small-town plants experienced
violence or threats of violence in the summer of 1935. A mob of
Charleston citizens, equipped with tar, watched all roads for the ap-
pearance in Charleston of Harold Davidson, union agent in Mattoon,
on the night of September 11th. Earlier in the summer, members of
the Joint Shoe Council, who had sponsored a meeting in Litchfield,
Illinois, were run out of town by a citizens' committee ; in fact,
Ahner, at the meeting in the Missouri Athletic Club on July 22nd
(see finding VI (f) above), twitted them about it. Gullion, union
organizer in Moberly, testified that on September 9th he received, by
mail, a paper bearing the names of Cox, Carlen, Gullion, McGonigal,
Under the union rules, failure to pay dues results in automatic suspension from active
membership.
820 NATIONAL LABOR RELATIONS BOARD
Davidson and Norris; lines were drawn through the names of Cox,
Carlen, Davidson and Norris, union officials who had been beaten and
slugged.
(e) Early in September, a number of copies of a document (Ex-
hibit B-24) purporting to be a certificate by the circuit court clerk
of Effingham County, Illinois, to the effect that Norris had been in-
dicted there in 1932 for larceny and receiving stolen property, had
pleaded guilty, and had'been paroled and had paid his fine and had
been released from parole, were notarized as true copies by T. N.
Spencer, a notary public, employed in the offices of the Illinois Bond
and Investment Company at Salem, of which B. E. Martin, a repre-
sentative citizen of Salem, and a subscriber to the respondent's orig-
inal building fund (see finding III (b) above), is president. Spencer
notarized the copies from the Effingham court clerk's certificate; he
testified he was handed the copies by a stenographer employed in his
office, and that he gave the notarized copies to Charles McMackin,
the son of Mayor McMackin of Salem. The notarized copies were
distributed in Salem and in the plant, and there was talk in the
town and among employees in the respondent's plant that Norris had
been convicted of stealing chickens. Norris admitted in his testimony
that he had pleaded guilty to a charge of petty larceny. There is no
evidence as to who secured the certificate from the Effingham clerk.
Abner testified that investigation of criminal records of union leaders
was part of his work.
(f) Early in September, Charles Howe, assistant superintendent
in the Salem plant, called the attention of Denny, president of the
union, to the article in the Decatur "Herald" of September 12, 1935
(see finding VI (g) above), and gave Denny a copy of the paper.
Previously, on August 15th, the day of the strike vote (see finding
IX (c) above), according to Denny, Howe had said to him, "I hear
you're going to vote tonight to send your charter back"; and Howe
had discussed with him the fact that no samples were being made
for the Salem plant and had stated that the respondent's Charleston
plant was experimenting with the line of shoes made in Salem with
a view to transferring the work to Charleston. Howe denied Denny's
testimony that he had intimated to Denny that the Salem plant
would be closed, and testified that he and Denny had frequent con-
versations. The article, in the Decatur "Herald", on its front page
(Exhibit B-7), headlined, "Union Votes Charter Out, Plant of Brown
Shoe Co. Expected to Reopen Following Action", is credited to a staff
correspondent in Charleston. It reports that the union local in Sul-
livan had voted to return its charter to Boston, that, according to an
authoritative report from the respondent in St. Louis, the Charleston
plant "will reopen within three weeks as a result of the action", that
DECISIONS AND ORDERS 821
it is reported "that machinery will be moved to Charleston from the
factory in Salem, and that this action is expected because of the con-
tinued strength of the union in Salem." The article also reports that
a Charleston citizens' committee secured signatures of 500 shoe
workers to an agreement to return to work under any conditions
stipulated by the respondent. This article, and "some of the wild
rumors" alarmed the union and caused it to arrange a meeting be-
tween the union's executive committee and Ekins in St. Louis, on
or about September 18th. Ekins denied the rumor of the moving of
the Salem work to Charleston contained in the article, and stated that
all that was necessary to keep the work at the Salem plant was "to
avoid the type of unpleasantness that had occurred at other places."
Denny also testified that Ekins intimated that in the event of labor
trouble in the Salem plant the work could and would be moved.
(g) Late in September, McMackin, accompanied by another rep-
resentative citizen of Salem, called on the respondent's president in
the St. Louis office and inquired as to the future of the Salem plant.
According to McMackin, Bush "assured me they wanted to operate
the Salem plant, they liked the class of work that came out of the
Salem plant . . . and if they could know that they would like
peaceful operations and wouldn't have shutdowns, they would like
to work the plant to full capacity." "He said that if the plant ran
peacefully, we would have full production there." McMackin testi-
fied that McCarthy, who was present, "said about the same thing".
McCarthy, in his testimony, stated that McMackin came to ask Bush
"how full the Salem factory was going to run," "what the picture
was ahead." He testified that he told McMackin that production in
Salem would stay down until "we began making shoes for Spring."
He denied that he had said anything at this time that the Salem
plant would be closed in the event of labor troubles.
(h) In 1935, the fall seasonal slump in the Salem plant began
before its normal time, because of previous overproduction, and the
respondent began laying off workers in mid-September. About a
year before, the union had secured an agreement with Finks and
Ekins that seasonal lay-offs were to be made on a seniority basis, so
that workers longest employed were to be laid off last when produc-
tion slumped and returned to work first when production revived.
The seniority arrangement with the respondent was the union's prin-
cipal accomplishment at the Salem plant, its outstanding achieve-
ment in collective bargaining.10 Under the seniority arrangement
the union members employed in the Salem plant were afforded a
10 There is evidence of other achievements in collective bargaining at the Salem plant :
the reinstatement by the respondent of two union members who had been discharged for
fighting, and the removal of an objectionable foreman, in both instances at the request of
the union
822 NATIONAL LABOR RELATIONS BOARD
measure of protection against discrimination; the arrangement
made it difficult for the respondent to lay off union members during
the seasonal slumps on account of their union membership and
activity under the guise of laying off "less efficient" workers. The
arrangement was adhered to by the respondent for about a year, and
formed the basis of the great bulk of the grievances dealt with by
Finks on presentation of the union's shop executives.:" When work-
ers laid off in September, 1935, complained of violations of the
seniority rule, shop executives who presented their complaints were
told the seniority rule was "out". About the end of September, or
possibly, October 1st, the union's president and executive board were
informed by Finks that the seniority arrangement was no longer in
effect. Denny testified that the union regarded that verdict as final.
Although Finks testified that he had taken up the abrogation of the
seniority agreement with Ekins, who agreed with his decision, Ekins,
in his meeting with the union officials in St. Louis on September
18th, did not mention the matter.
(i) On October 8th, at a special meeting, the union considered the
respondent's abrogation of the seniority agreement. The possibility
of a strike in protest was discussed. While several union members,
admittedly dissatisfied with the union, testified in behalf of the re-
spondent that the union voted to back up the seniority agreement and
to leave the matter to the "Labor Board" (the charges in this pro-
ceeding were filed on October 7th), we aie convinced by the testimony.
especially that of Denny who presided at the meeting and put the
motion, that the union voted to back up the seniority agreement to the
limit and authorized the union's executive board to take whatever
action was necessary in support of the seniority agreement.
(j) Early on Friday evening, October 11th, a crowd of about 175
employees of the Salem plant, many of them union members, gathered
in front of the plant. Word of the meeting had gone around in the
factory during the afternoon. Prompted by fear that the factory
would be closed, the crowd gathered to take some action about Norris,
the union organizer. Claude Swayze, a cutter, not a union member,
and admittedly hostile to the union, was in charge of the meeting.
A committee of four, two union and two non-union employees, was
designated to call on Norris. The union members on the committee,
Arthur Seibman and Frank Canaway, were admittedly hostile to
Norris and dissatisfied with the union.:' The crowd followed the
committee to the home of Norris. According to the committee mem-
n The union designated a shop executive for each department in the plant, who, with a
chairman, formed the union's executive board. Grievances were usually presented to
Finks by the department executives and the chairman. Finks also met with the executive
board.
12 It was Seibman who made the motion to oust delinquent members from the August
15th meeting. (See finding IX (c) above.)
DECISIONS AND ORDERS 823
bers , Seibman, the spokesman, told Norris that a committee of work-
ers at the plant wanted to talk to him. Norris testified that Seibman
said, "We have come to ask you to leave town". The committee
stepped off the porch of the house when Norris protested. Roy Sollis,
an instructor in the cutting room, with supervisory duties and au-
thority there, was in the crowd. There was a hostile demonstration
against Norris by the crowd, which remained on the scene for some
time. Continued demonstrations for several days finally caused
Norris to move his family to Centralia, Illinois.
(k) The next morning, October 12th, before the commencement of
work in the plant, a group of workers in the lasting department con-
sidered refusing to work with union members in their department.
They finally went in to work.
(1) Later, the same morning, Conrad Garner, a cutter, admittedly
hostile to the union and to Norris, and Roy Sollis, the instructor who
admitted hostility to Norris, left the plant in order to prepare copies
of a petition for signature by the respondent's employees. They
were out of the plant all morning; their foreman, Gruenkemeyer,
knew they were out. Sollis was paid for this time; Garner denied
that he was paid. The petition, according to Garner and Sollis, was
originally drawn up in pencil by the two ; they feared the possible
closing of the plant. Garner and Sollis testified they called on sev-
eral of the business men in town, with whom they discussed the word-
ing of the petition, and then took it to the local printer, who advised
them it was "too rough". They finally took it to a lawyer, Johnson,
city attorney of Salem, who revised it, and had it typed by his
stenographer. The copies of the petition in its final form were mime-
ographed that morning by,a stenographer employed by A. E. Miller,
a real estate dealer. Neither Johnson nor Miller or his stenographer
were paid for their work. Garner and Sollis began circulation of
the petition at once. The petition (Exhibit R-4) recites that cer-
tain employees are causing confusion and unfriendly relations be-
tween employees and the respondent which may result in the closing
of the plant as was the case in other nearby cities, and requests that
in the interest of the'undersigned employees and the community and
the respondent, the employees causing such confusion, misunderstand-
ing and unfriendly relations be asked to discontinue such conduct and
if it is not discontinued that they be discharged. The first part of
the next week the petition, obviously aimed at the union and its lead-
ers, circulated freely at the plant. About 450 employees of the re-
spondent, many of them union members, signed it, a great number
of them at the plant, and on October 15th, or 16th, it was presented
by Sollis to Finks, who sent it on to Ekins in St. Louis. There is
testimony that one of the signatures is a forgery; Garner signed
97571-36-vol 1-53
824 NATIONAL LABOR RELATIONS BOARD
three times; one worker signed when drunk and another permitted
his name to be written, although he did not know what he was sign-
ing. There is testimony that one employee told another, while at
work, if you want to work, you'd better sign it". The petition itself
shows that it is based on fear lest the Salem plant be closed.
(m) Denny testified he had thought the seniority arrangement
could be adjusted. However, the executive board was finally impelled
by the demonstration of the mob against Norris the evening before,
and by the contemplated refusal of the non-union lasters to work
with union members (see findings IX (j) and .(k) above), to exercise
the authority given it by the union vote on October 8th (see finding
IX (i) above) to back up the seniority agreement. The executive
board of the union met on Saturday night, October 12th, and decided
to call a strike in the plant on Monday, October 14th.
(n) Early on Monday morning, October 14th, the Salem plant was
picketed by union members, variously estimated in the testimony to
number 50 to 175. About 300 employees went in to work. Finks
telephoned Ekins in St. Louis and reported the situation. McMackin
heard of the picketing and visited the plant. Later that morning,
about 9:30, Bush telephoned him from St. Louis. According to
McMackin, Bush said, "if we are going to operate that factory we
must have it where we can operate it peacefully; we will not operate
it where there is danger of people being hurt or people being killed;
it is not our policy to operate it then." Bush testified he had said, "I
told him . . . that I wanted him to know that we couldn't run factory
unless we could run it peacefully, we didn't want any broken heads,
and there was nothing to do unless shut down the factory if we are
going to have that kind of condition over there . . ." McMackin re-
ported this communication from Bush at a mass meeting of business
men, town officials and some of the respondent's employees held about
10 o'clock that morning at the city hall. Representative citizens spoke
at the meeting, and there was some mention of an undisclosed plan
to settle the dispute at the plant. McMackin left the meeting and
ordered the police commissioner to break the picket line by 11: 30 that
morning. While McMackin testified that the chief of police was look-
ing for special police about 8: 30 or 8: 45 A. M., it is not clear from the
testimony whether these were deputized before or after Bush's tele-
phone call at 9:30. The special police, on McMackin's order, broke
up the picket line that morning. McMackin testified he made the
order to prevent violence when workers in the plant came out at the
noon hour. Several of the pickets, some of them carrying American
flags, were clubbed by special policemen. A few were piled into an
automobile and driven several miles out of town. Other special
police, some of them national guardsmen and employees at the Salem
plant, were sent to watch the roads leading into Salem, upon a false
DECISIONS AND ORDERS 825
rumor that neighboring union miners were expected to arrive to
support the union.
(o) Several days after the strike, Denny drew up proposals for
settlement of the strike and return to work without discrimination
and with recognition of the union. He showed the proposals to Mc-
Mackin, who had them typed. Denny submitted the proposals to
Finks, but was told Finks had no authority to act and was referred
to the respondent in St. Louis. Denny requested McMackin to present
the proposals to the respondent's offices in St. Louis. McMackin testi-
fied he told Ekins, in St. Louis, that he had proposals for an agree-
ment with the union, but that he did not present it because Ekins
advised him that the union members should present the proposals
themselves.
(p) Throughout the period between August 15th and October 14th,
various representative business men and town officials at Salem, in-
cluding McMackin, James, the commissioner of police, and others,
made anti-union statements to officers and members of the union,
suggested that they give up their union activities and their charter
to keep the Salem plant operating, made detrimental statements about
Norris, repeated their fears that the Salem plant would be closed and
moved from Salem unless the union got rid of Norris and its charter,
and said that the plant would operate at full capacity if the union
were abandoned. From the testimony, these statements, some of them
denied, were made on the streets, in business places, at the home of
Norris on October 11th, the night of the demonstration there, and at
his home the following night.
(q) During this period also, Finks and Howe, superintendent and
assistant superintendent at the Salem plant, Courtney, foreman of the
fitting room, and Luety, a "trial runner" and at times a temporary
foreman, Sollis, an instructor, Baker, an assistant foreman, and
Peck, a final inspector, all with supervisory functions and duties,
made statements, some of them denied, to various officials and mem-
bers of the union indicating their antagonism to Norris, suggesting
that the union dispose of its charter and that the plant would be
closed. Howe's conduct in this respect has been set forth in find-
ing IX(f) above. Denny testified that in September Finks asked
him to use his influence to keep labor troubles down in the Salem
plant; that in the event of labor trouble a citizens' committee would
do the hiring and firing in the plant; that he did not want the same
thing happening at Salem that happened in Charleston and Sullivan.
(r) In addition, during this time Salem business men and public
officials engaged in conduct which is illustrative of the tension and
depth of the anti-union feeling then existing in the town. James,
Salem police commissioner, at a town council meeting, urged Plum-
mer, street commissioner, to get rid of Marshall Cagey, employed in
S26 NATIONAL LABOR RELATIONS BOARD
his department; Cagey is the father of Vermont Cagey, financial
secretary of the union. John Taylor, a Salem baker, employer of
Herman Cagey, Vermont's brother, called on Plummer to find out
what Plummer intended to do about Marshall, the father. Neither
Marshall nor Herman lost his job. Mabel Sullins, union member,
was notified to vacate her home by Mills, the Salem postmaster, her
landlord, although they had previously made arrangements to pay off
arrears in rent. Mabel testified that Mills told her the work of the
Salem plant would be taken away if "we didn't drop the union."
Neva Schinn, an employee of the respondent, who rented a room at
the home of Dorothy Harvey, a complainant in this proceeding, was
advised by Middleton, a special policeman active in breaking up the
picket line on October 14th, that it would be best for her to move
from the Harvey house. Neva testified that she moved. She was
not working at the time and "I thought I would get back to work
sooner." On October 16th,, two days after the strike, Madden, a
union organizer, spent the night at the home of Frank McKinney,
father-in-law of Henry Smith, a member of the union executive
board. That evening the Salem chief of police drove up to McKin-
aiey's house, turned his lights on the porch, and told McKinney, "I am
informed you are harboring someone"; he refused McKinney's invi-
tation to enter 'the house. Two days later McKinney, who worked
as a meat cutter in a chain grocery store, was discharged by Funk-
hauser, the manager. Funkhauser had attended the citizens' meet-
ing in the country club on August 15th. Although he testified that
he discharged McKinney because "he hadn't showed enough profits
to satisfy the company", Funkhauser also testified, "I thought he
might be detrimental to the business if I kept him" and "if a man
is working for me and takes sides in a matter of that kind, I should
think, I have customers on both sides . . ."
(s) Late in October, 1935, after the charges in this proceeding had
been filed by the union, McMackin, accompanied by several other
Salem business men, again called on the respondent at its offices in St.
Louis. McMackin had requested the meeting, to find out how the
plant was going to operate. Bush, McCarthy, Ekins and the re-
spondent's counsel were present at the meeting. McMackin testi-
fied that McCarthy informed him "they were going to put shoes in
the Salem plant right away and as far as he knew the output would
soon get up to the normal amount of forty-five hundred pairs a day."
Conclusions
X. (a) A review of the testimony of the events in Salem during
the period between early August and mid-October, 1935, and a review
of the evidence of contemporaneous activities of the respondent's
DECISIONS AND ORDERS 827
officers and agents concerning Salem and the Salem plant, in the
light of the background of the relationship of the respondent and
the union and the relationship of the Salem plant and the town, set
forth above, convinces us that the anti-union drive in Salem was
caused by the respondent's own conduct and that the respondent is,
primarily responsible for the intimidation of its Salem plant em-
ployees in their union activities.
(b) It is the respondent's contention that the evidence establishes
no connection between the respondent and this anti-union drive in
Salem, and the Trial Examiner so found and concluded, on the theory
that the conduct of the citizens of Salem, the business men and the
employees of the respondent, was conduct in their own or the com-
munity's interest or in some cases official conduct of town officers.
The Trial Examiner also concluded that internal dissension in the
union 'and dissatisfaction with Norris motivated participation in
anti-union conduct by union members. The Trial Examiner's find-
ings and conclusions fail to take into consideration the full signifi-
cance of the background of the respondent's relations with the union,
including the evidence of the respondent's open cooperation with the
citizens' committee in Sullivan, its unmistakable hostility to organ-
ized labor in general and the local unions in its'various small-town
plants in particular, as evidenced especially by its open employment
of the notorious strike-breaker Abner to be its industrial relations
counselor, in charge of labor relations and labor policy, immediately
after seven of these local unions had united for concerted activities
for collective bargaining, the evidence of Ahner's close association
with Ekins, the respondent's general superintendent in charge of
labor relations in the Salem plant, and finally, the fact, well known
to the respondent, of the dominant economic position of the Salem
plant in the lives of the inhabitants of the town which made them
extremely sensitive to the slightest hint concerning its continued oper-
ation. The situation in Salem, in this view, required only the slight-
est hint from the respondent, the slightest suggestion of its attitude,
the slightest rumor of its conduct in its other plants, to stimulate
the inhabitants of Salem, business men, officials and employees of
the respondent alike, to accede to its wishes in order to keep the
Salem plant from being closed or moved by the respondent. These
wishes, in the light of the respondent's attitude to unions and of
what happened in Sullivan and Charleston, with which they were
familiar, were unmistakable : that the union in Salem cease to
function.
(c) The record contains uncontradicted evidence that the respond-
ent, through some of its chief officials, stated to representative citizens
of Salem that the Salem plant might be closed or moved or both in
828 NATIONAL LABOR RELATIONS BOARD
the event of "labor troubles" and, on one occasion, that it would be
closed if picketing of the plant continued after the October 14th
strike. These statements were made when the inhabitants of the
town were aware of the closing of the Sullivan and Charleston plants
and of the disruption of the union locals in these plants and the
consequent reopening or plans to reopen them for operation. To
them, chiefly, is attributable the anti-union turmoil in Salem, and
the respondent's responsibility therefor. There is not a word of evi-
dence that the respondent, if it had no intention of closing the Salem
plant , sought, when the rumors of closing flew thick and fast, and of
which the respondent knew, to allay the fears of the inhabitants of
Salem by a straightforward general announcement that the Salem
plant would not be closed; nor is there a. word of evidence that the
respondent, if it did intend to close the plant, sought to quiet the
situation in Salem by an announcement that its employees had a right
to have their union , and that it did not desire that mob tactics and
intimidation be used to break the union. That is the least the re-
spondent could have done were its intentions not to create a"situa-
tion stimulating anti-union activity. There is, to be sure, no evidence
,of any formal cooperation between the respondent and the citizens
of Salem in the anti-union drive; there is no such evidence as a reso-
lution of the respondent's board of directors authorizing the Salem
citizens to act for the respondent. But the evidence connecting
the respondent with the anti-union activities in Salem is clear
enough to preclude the substance of the Trial Examiner's con-
clusion that the inhabitants of Salem had pulled the respondent's
chestnuts out of the fire of their own accord. That cat's paw did
not move without urging by the respondent. McCarthy's statement
to Mayor McMackin, early in August (finding IX (a) above), indi-
cates a possible closing of the plant unless there could be "peaceful
operation" of the factory. In the light of the background situation,
his meaning is unmistakable-the only possible factor precluding
"peaceful operation" was the possibility of concerted activity of
Salem plant employees, through the union, in support of collective
demands. McCarthy's statement brought immediate action by the
citizens (finding IX (b) above). Late in September, Bush added
to the uncertainty by his statement to McMackin in St. Louis that
the Salem plant would operate full capacity if there could be "peace-
ful operations" and no "shutdowns". Again, the meaning is unmis-
takable. On the day of the strike, October 14th, McMackin ordered
the special police to break up the picket line immediately after Bush
in his telephone call from St. Louis threatened to shut down the
plant if it could not be operated peacefully. All of the anti-union
conduct, by Salem citizens, by its public officials, by Salem plant
DECISIONS AND ORDERS 829
employees, supervisory and shoe workers, set forth in finding IX
above, is traceable to fear that the respondent would close the Salem
plant if the union continued active in Salem. It was this fear which
caused the efforts to discredit Norris, the terrorism practiced against
him, the drive to get the union members to renounce the union char,
ter, the anti-union petitions, the breaking of the picket line. The
respondent directly inspired this fear and did nothing to allay it,
although, through its officials, Finks, Ekins, McCarthy and Bush, it
knew of the existence of this fear and its probable consequences.
It was only in late October, after the union had been disrupted, that
McMackin and other citizens were assured of capacity production
in the Salem plant.
(d) The respondent, in the same manner, is directly responsible
for the intimidating statements made to union officials and members
by supervisory employees in the Salem plant (see finding IX (g)
above). They, like the business men and workers, feared the plant
would be closed, a fear engendered by the respondent as set forth
above. Their supervisory positions made their statements to Salem
plant employees the more effective, and the respondent is responsible
for them in any event. That some of them were friendly with the
employees and were in the habit of discussing matters concerning the
Salem plant with them does not mitigate the effect of their conduct
in the light of the tense situation in Salem created by the respond-
ent's creation and fostering of the fear that it intended to close the
Salem plant in the event of labor troubles. It is sufficient that this
fear prompted them into action which, in its absence, may possibly
be explained on other grounds.
(e) While the seniority arrangement in the Salem plant was not
definite as to duration, it had been agreed upon between the respond-
ent and the union by means of collective bargaining, had been in
effect for a year and. was the union's chief accomplishment in col-
lective bargaining at Salem. The seniority rule was the union's
principal protection against discrimination by the respondent during
the seasonal slumps (see finding IX (h) above). The respondent's
arbitrary abrogation of the seniority rule, in the light of the back-
ground situation set forth above, is to be interpreted only as a blow
aimed directly at the union. Consequently, the respondent's termi-
nation of the arrangement without conferring with the union con-
stitutes interference, restraint and coercion of its Salem plant em-
ployees in the exercise of their right to collective bargaining guaran-
teed by the Act. The respondent first disregarded the rule in some
of the September lay-offs, then announced its decision to the union's
executive board. Tile 'respondent gave no consideration to the rights
of its Salem plant employees to collective bargaining nor to its own
duty under the Act not to violate those rights.
830 NATIONAL LABOR RELATIONS BOARD
(f) The union's picket line was broken up during the strike on
October 14th, as a consequence of the conduct of the respondent's
president (see finding IX (n) above). We find that the respondent's
conduct in that respect amounts to interference, restraint and coer-
cion of its Salem plant employees in the exercise of their right to
concerted activities for mutual aid and protection guaranteed them
by the Act.
(g) While 15 of the respondent's employees in the Salem plant,
former union members, testified in its behalf that they and others
had left the union because of dissatisfaction with Norris and the
union officers and the conduct of union affairs, it is clear from the
evidence that the principal cause of dissension in the union was the
fear implanted in Salem by the respondent that the Salem plant
would be closed. That fear is expressly announced in the petition
signed by 450 of the Salem plant employees, many of them union
members or former union members.
(h) The respondent's conduct, as set forth above, constitutes inter-
ference, restraint and coercion of its Salem plant employees in the
exercise of their right to self-organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for collective bargaining and other mutual aid or
protection.
Discriminatory discharges
XI. (a) Due to the fall seasonal slump, the respondent, between
September 14 and October 5, 1935, laid off 194 employees of the Salem
plant. Of these, guess-work by foremen in the Salem plant shows 73
to be union members, 81 non-union and 40 unknown as to union affilia-
tion.13 The charges in this proceeding name five Salem plant em-
ployees claiming discrimination (Exhibit B-1 a). Four were named
in the complaint. One of these, Fonda Wheat, failed to appear at the
Bearing and the allegations in the complaint as to her were dismissed.
Elmer Onheiser, whose name was included in the charges, but not in
the complaint, testified, in behalf of the respondent, that he had not
authorized the use of his name. He was reinstated by the respondent
on the day of the strike, October 14th. The three remaining com-
plainants are Muriel Vanatta, Reba Powell and Dorothy Harvey.
There is no evidence that any of them was refused reinstatement by
the respondent.
(b) Muriel Vanatta was employed by the respondent as a flat folder
in the fitting room of the Salem plant since 1931. She had been an
"A list of the workers laid off was prepared by the respondent after charges in this
proceeding were filed ( Exhibit R-3). Foremen at the Salem plant noted after each name
whether the worker was thought or known to be union or non -union. These designations
are guess -work on the part of the foremen. No evidence was introduced in behalf of the
union, from union records or otherwise , to check these designations.
DECISIONS AND ORDERS 831
active member since its organization in the fall of 1933, and her union
membership was known to the respondent's supervisory employees,at
the plant. There is no question as to her seniority over several opera-
tors in her department who were retained during the fall slump ; she
had not been laid off since the fall of 1933. Nor is there any question
as to her competence or efficiency. In 1933 she was sent to the Mur-
physboro plant at the respondent's expense to help out there. She
was laid off on September 27th. Of the 16 girls in her department,
seven were laid off, five of them union members. Of the nine retained,
six are union members. Three of the girls laid off have been put back
to work, two of ,them union members. The reason given by the re-
spondent for Muriel's lay-off is that on a production basis she failed
to earn the minimum hourly rate paid her during the three weeks
preceding her lay-off. In August, the flat-folders through Mrs.
Broda, the union executive in the fitting room, had complained to
Finks that they were unable to earn the minimum hourly rate, 30
cents, because of low piece prices. Mrs. Broda appointed a com-
mittee of three, Muriel and two sisters named Ferguson, to talk with
.Finks. Muriel did most of the talking for the operators. Finks
promised to take the matter up with the St. Louis office. Later, when
no action was taken, the girls threatened to refuse to work, and Finks
raised the hourly minimum to 371/2 cents, and again promised to in-
vestigate the piece rates. There is evidence that the piece rates were
found not to be lower than those elsewhere and that production by the
flat-folders was surprisingly even, indicating, according to Finks,
that the operators were holding back on their work. Finks testified
that the operators were kept at the same rates thereafter and earned
39 cents per hour on a production basis. However, the two Ferguson
girls were not laid off during the fall slump and the respondent did
not lay off two operators who had low production records for the
three weeks' test period claimed by the respondent to have been the
basis for lay-off of Muriel.
(c) Reba Powell was employed by the respondent as a kid puller in
the wood heel department for five and one-half years. She is a char-
ter member of the union and her union membership was known to her
forelady, Mrs. Woodf all, and to Finks: She appears to have had
seniority over several operators retained in her department during
the fall slump; she had not been laid off since the fall of 1933. Reba
and Ira Prahl, union executive in her department, testified that she
was a competent worker. Mrs. Woodfall, her forelady, testified that
her work was poor. However, it is clear that Reba on a production
basis, earned the minimum hourly rate. She was laid off on Septem-
ber 24th. Of the 13 in her department, four were laid off, two union
and two non-union. L. Filbrook, the most active union member in the
832 NATIONAL LABOR RELATIONS BOARD
department, was not laid off, nor were two other union members.
Four others retained were not union members.' The reason advanced
by the respondent for Reba's lay-off is inefficiency. Mrs. Woodfall
testified that she retained Evelyn Thompson, the least efficient kid.
puller but with more seniority than Reba, because she could also do
celluloid pulling. There is evidence indicating that Mrs. Woodf all
was not friendly to Reba and that Evelyn Thompson had informed
the forelady that Reba collected union dues in the department.
(d) Dorothy Harvey was first employed by the respondent in 1931,
when she was 16 years old. Because her earnings were only three
or four dollars a week, she found it necessary to quit in July, 1933.
That fall she returned to work on the prospect of better earnings
because of the National Industrial Recovery Act. She was employed,
in the fitting room, on French binding cementing, a machine opera-
tion. In the summer of 1934 she was laid off; in January 1935 she
was reemployed on cementing heel stays, hand work, and, part of
the time, in her old job of French, binding cementing. She was a
member of the union and her membership was known to the respond-
ent. She was laid off on September 25th. Of the seven operators
on cementing heel stays, three were laid off, one union member.
Three non-union workers and one union member were retained. One
of the non-union operators has been reemployed. The reason given
for Dorothy's lay-off is her lack of seniority on the work of cement-
ing heel stays; the evidence shows that she had no seniority on that
operation. Her foreman testified that Finks permitted him to make
the seasonal lay-offs on a seniority basis. However, Dorothy's claim
is that she had department seniority, based on her work on French
binding cementing, which began in 1933, although there is also testi-
mony that she tried to avoid this work because she claimed the ma-
chine was injurious to her health. The fitting room employs 250 to
300 operators, on 16 different operations, and it is reasonable to
conclude that normally seniority was tested by the job and not length
of service in the department. But Dorothy was employed on cement-
ing heel stays and French binding cementing on her return to work
after the lay-off in 1934. Her seniority status must therefore be de-
termined as of her employment in 1933. There is evidence that one
girl, with less seniority than Dorothy, was retained on French bind-
ing cementing during the 1935 fall slump.
(e) The evidence is convincing that Muriel Vanatta, Reba Powell
and Dorothy Harvey were laid off as a result of the respondent's
arbitrary abrogation of the seniority rule, which we have found to
have been a blow at the union and an interference with the exercise
by the respondent's employees of their right to collective bargaining
(see findings IX(h) and X(e) above). When Mrs. Broda protested
DECISIONS AND ORDERS 833
the lay-off of Muriel and Dorothy to the foreman, she was told the
seniority rule was "out". Ira Prahl did not present Reba's case; he
felt it was no use in the face of Mrs. Broda's experience. The re-
sultant effect on the union and its members, their discouragement,
is obvious; the seniority rule and its protection from discrimination
was the chief fruit of their union. It is not material in this con-
nection that the respondent laid off about as many union members
as non-union employees among the 194 laid off and that the union
leaders were not laid off. It was within the respondent's power
to set an example and it did so in the lay-off of Muriel, Reba and
Dorothy, all three employees known to the respondent as union mem-
bers. The reasons advanced by the respondent for their lay-off is
not, convincing. In the, light of the entire situation in the Salem
plant, we are convinced that these three employees were laid off by
the respondent in the course of the respondent's engaging in an un-
fair labor practice and because they were union members.
E. THE RESPONDENT'S CONDUCT IN RELATION TO INTERSTATE COMMERCE
XII. (a) The strike in seven of the respondent's plants in May,.
1934 (see finding VI(a) above) was the result of the respondent's.
failure to meet representatives of the union locals in these plants for
the purposes of collective bargaining. Unfair labor practices by the
respondent, including its arbitrary termination of the seniority ar-
rangement with the union, caused the strike at the Salem plant on
October 14, 1935. There is evidence that the respondent's refusal
to recognize union locals in several of its other plants and other con-
duct by the respondent indicating unfair labor practices, resulted in
strikes and the closing of the plants. Statistics compiled by the
Bureau of Labor Statistics, United States Department of Labor, cer-
tified under the seal of the Department of Labor and the signatures
of Frances Perkins, Secretary of Labor, and Isadore Lubin, Commis-
sioner of Labor Statistics (Exhibit B-25), show that in 1934, out of
65 strikes and lockouts in the boot and shoe industry, 36 were "or-
ganization" strikes and lockouts, due to labor disputes involving,
chiefly, the issues of union recognition and discrimination; these 36
strikes involved 18,648 workers and caused 359,340 man-days of idle-
ness. In 1935, from January to July inclusive, out of 29 strikes
and lockouts in the industry, ten were over the issue of "organiza-
tion", and involved 2,179 workers and 37,324 man-days of idleness.
(b) We have-found that, apart from the great flow of materials
to the respondent in St. Louis and of shoes from the respondent to
all parts of the United States, the respondent's very manufacturing
operations are interstate in character and require and cause a con-
tinuous flow of commerce between St . Louis and its small -town plants
,834 NATIONAL LABOR RELATIONS BOARD
in other states. On the basis of experience in the respondent's plants
and in other plants, the respondent's conduct as set forth in the find-
ings above burdens and obstructs commerce among the several states
and the free flow of commerce, and had led and tends to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce among the several states.
THE REMEDY
The strike at the Salem plant on October 14th was caused by the
respondent's conduct in arbitrarily terminating the seniority agree-
ment with the union and by other anti-union conduct for which we
have found it to be responsible. Moreover, we have found that the
violent breaking of the picket line on the day of the strike, was
caused by the respondent, this conduct amounting to interference,
restraint and coercion of its employees in the exercise of their right
to concerted activities for mutual aid and protection. An order
requiring the respondent to cease and desist from such conduct will
not wholly restore the union to at least the position it occupied in
the Salem plant on the day of the strike. We shall, therefore, in
order to restore the status quo, order the respondent to offer rein-
statement to those employees at the Salem plant who went out on
strike on October 14th, and to that end, if necessary, to displace
employees hired since October 14th to take the places of strikers 14
In order to restore the status quo, we shall also order the respondent
to enter into negotiations with the union with the object of reaching
an agreement in regard to the seniority arrangement which the re-
spondent arbitrarily abrogated in violation of its employees' rights
to collective bargaining in respect to conditions of employment.
We shall also order the respondent to reinstate the three discharged
employees. As we said in Matter of E. R. He ffelg ger Co., Inc.,
Case No. C 46, "Normally, we would also order back pay from the
'date of discharge to the time of respondent's offer of reinstatement.
,We believe, however, that in view of the Trial Examiner's recom-
mendations, respondent could not have been expected to reinstate the
discharged workers after it received the Intermediate Report, .. .
and therefore it should not be required to pay back pay from that
time to the date of this decision". The intermediate report in the
instant proceeding was received by the respondent's counsel, E. A. H.
Shepley, on February 14, 1936.
14 For orders to same effect, see Matter of Columbian E•na,nelting and Stamping Company,
Case No. C-14; Matter of Canvas Glove Manufacturing Worbs, Inc., Case No. C-24;
Matter of Rabhor Company , Inc., Case No. C-29.
DECISIONS AND ORDERS, 835,
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the
entire 'record in the proceeding, the Board finds and concludes as a
matter of law :
1. Boot and Shoe Workers' Union, Local No. 655, affiliated with
the American Federation of Labor, is a labor organization within the
meaning of Section 2, subdivision (5) of the National Labor Rela-
tions Act.
2. The respondent, by laying off Muriel Vanatta, Reba Powell and
Dorothy Harvey, because they joined and assisted a labor organiza-
tion, thus discriminating in regard to the tenure of the employment
of each of them and thereby discouraging membership in the labor
organization known as Boot and Shoe Workers' Union, Local No.
655, has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8, subdivisions (1) and (3) of the Act.
3. The respondent, by causing citizens and public officials of the
town of Salem and its officials and employees at the Salem plant to
intimidate, interfere with, coerce and restrain employees of the re-
spondent at its Salem plant in the exercise of the rights guaranteed
in Section 7 of the Act, and by its arbitrary abrogation of the senior-
ity arrangement with the union and by other conduct, and by each
item of such conduct, all as set forth in findings IX and X above, has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8, subdivision (1) of the Act.
4. The unfair labor practices in which the respondent has engaged
and is engaging, as set forth in the preceding conclusions 2 and 3,
and the findings of fact above, constitute unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER
On the basis of the findings of fact and conclusions of law, and
pursuant to Section 10, subdivision (c) of the National Labor Re-
lations Act, the National Labor Relations Board hereby orders that
the respondent, Brown Shoe Company, Inc.,' and its officers and
agents shall:
1. Cease and desist from in any manner interfering with, restrain-
ing or coercing its employees in the exercise of their rights to self-
organization, to form, join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid and protection, as guaranteed in Section 7
of the Act, and from in any manner inducing and causing citizens
and public officials, and its supervisory and other employees from
836 NATIONAL LABOR RELATIONS BOARD
interfering with, restraining or coercing its employees in the exercise
of such rights.
2. Cease and desist from in any manner 'discouraging ineinber-
ship in Boot and Shoe Workers' Union, Local No. ' 655, or in any
other labor organization, by discrimination in regard to hire or
tenure of employment or any term or condition of employment, by
laying off or discharging or threatening to lay off or discharge any
of its employees for joining or assisting Boot and Shoe Workers'
Union, Local No. 655, or any other labor organization.
3. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer immediate employment to employees at the Salem plant
who were employed by the respondent on October 14, 1935, and who
went out on strike on that day, in all cases in which the respondent
has since October 14th employed others to do the work of such
employees, and in all other cases place such employees on a list to
be offered employment, in the order of their seniority, as and when
their services are needed;
(b) Upon request, enter into negotiations with Local No. 655 for
the purpose of collective bargaining in respect to the seniority ar-
rangement in effect at the Salem plant until September, 1935;
(c) Offer to Muriel Vanatta, Reba Powell and Dorothy. Harvey,
and each of them, immediate and full reinstatement to their former
positions, without prejuice to their seniority or other rights and
privileges previously enjoyed;
(d) Make whole the said Muriel Vanatta, Reba Powell and
Dorothy Harvey, and each of them, for any losses of pay they may
have suffered by reason of their lay-offs, by payment to each of them,
respectively, of a sum of money equal to that which each of them
would normally have earned as wages during the periods from the
respective dates of their lay-offs to February 14, 1936, and from the
date of this decision to the time of such offer of reinstatement, com-
puted at the wage rate each was paid at the time of such lay-oft,
less the amount, if any, which each respectively earned during said
periods;
(e) Post notices immediately in conspicuous places in all of its
plants, stating (1) that it will cease and-desist as aforesaid; and
(2) that such notices will remain posted for a period of at least
thirty (30) consecutive days from the date of posting.