Bruce Shoe Co.

National Labor Relations Board - Board Decisions

Mar 31, 1953

103 N.L.R.B. 1322 (N.L.R.B. 1953)

1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By refusing to bargain collectively with United Textile Workers of
America, AFL, as the exclusive bargaining representative of the employees in
the appropriate unit, the Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By such refusal to bargain and by threatening concerning union activities,
thereby interfering with , restraining , and coercing their employees in the exer-
cise of rights guaranteed in Section 7 of the Act, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 ( 6) and (7) of the Act.
7. The Respondents have not engaged in unfair labor practices within the
meaning of the Act by failing to reinstate or reemploy Myrtle Johnson.
[Recommendations omitted from publication in this volume.]
LUNDER SHOE CORPORATION D/B/A BRUCE SHOE COMPANY AND BRUCE
SHOE COMPANY, INC., and UNITED SHOE WORKERS OF AMERICA, CIO.
Case No. 1-CA-1162. March 31,1953
Decision and Order
On December 22, 1952, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that each Respondent cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the Respondents filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Styles, and
Peterson].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed.' The Board has considered the Intermediate
1 During cross -examination by Respondents , George Fecteau , territorial representative
of the Union , testified that there never had been a local of the Union in existence which
accepted as members , employees of Mitchell Shoe Company , Inc, or of the Respondents,
but that there had been a negotiating committee of employees of Mitchell Shoe Company,
Inc., for the purpose of negotiating a contract . Counsel for the General Counsel there-
after interposed an objection , which was sustained by the Trial Examiner , to the fol-
lowing question asked of the witness by the Respondents : "Were they [ the negotiating
committee ] elected by members of the United Shoe Workers who were employed at the
Mitchell Shoe Company ?" Respondents thereafter offered to prove that there was in fact
in existence , at the time of the filing of the petition leading to the certification of the
Union, a noncomplying local, or shop committee , acting as a labor organization for em-
ployees of the Mitchell Shoe Company , Inc. This offer was rejected by the Trial Examiner.
As the Trial Examiner pointed out , no offer of proof that members of the negotiating
103 NLRB No. 122.
LUNDER SHOE CORPORATION 1323
Report, the brief and the exceptions, and the entire record in the case
and hereby adopts the findings, conclusions , and recommendations of
the Trial Examiner with the following additions, corrections,2 and
modifications.
1. The Respondents urge that the issuance of the complaint, which
is based in part on two amended charges, contravenes Section 3 (a)
of the Administrative Procedure Act in that the Board has not pub-
lished in the Federal Register a statement of the nature and require-
ments of an amended charge,3 and they were required to resort to
procedure not so published.
We find, as did the Trial Examiner, there is no merit in this
contention. As the Board pointed out in the Cathey Lumber Com-
pany case,4 the only purpose of a charge is to set in motion the Board's
investigatory machinery in order to ascertain whether or not a com-
plaint should issue. The Board there upheld the validity of a com-
plaint which enlarged upon the charge, as it was the complaint and
not the charge which framed the issues in an unfair labor practice
case. Accordingly, as the complaint is here predicated in part on
two amended charges, as well as on the original charge, and as the
contents of the charges do not operate to limit the scope of the com-
plaint, the validity of the complaint is clear . And in view of the
nature of the charge or amendments thereof, the Board's practice of
accepting and investigating the amended charges herein can hardly
be called a procedure to which Respondents were required to resort,
within the meaning of Section 3 (a) of the Administrative Procedure
Acts
committee «ere "officers" within the meaning of the Act was made, and any answer
to the question asked could not encompass proof that said committee members were
officers. Furthermore, Fecteau had already testified during the course of Respondents'
cross-examination that there was no local union in existence, and an offer to prove
through Fecteau, an adverse witness, that such a labor organization was in existence
would obviously have proved unavailing Moreover, if it was the Respondents' purpose
to break down Fecteau's previous testimony on cross-examination as to the nonexistence
of a local, the Respondents should have proceeded by further cross-examination and not
by an offer of proof. Accordingly, as it does not appear that the Trial Examiner in any
way precluded the proper cross-examination of Fecteau, we shall affirm his ruling.
2 we note and correct the following inadvertent error in the Intermediate Report : In
July 1951, George Fecteau telephoned Michael Lunder at Lunder's office in Dover, New
Hampshire, not at Lunder's office in Biddeford. This error does not affect the Trial
Examiner's ultimate conclusions or our concurrence therein.
2 Section 3 (a) of the Administrative Procedure Act provides in pertinent part: "Every
agency shall separately state and currently publish in the Federal Register . . . (2)
statements of the general course and method by which its functions are channeled and
determined including the nature and requirements of all formal or informal procedures
available as well as forms and instructions as to the scope and contents of all papers,
reports, or examinations; and (3) substantive rules adopted as authorized by law and
statements of general policy or interpretations formulated and adopted by the agency for
the guidance of the public, . . . No person shall in any manner be required to resort
to organization or procedure not so published."
4 Cathey Lumber Company, 86 NLRB 157, enfd. 185 F. 2d 1021 (C. A. 5).
Cf. Dant and Russell, Ltd., 344 U. S. 375.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner found, and we agree, that the Respondent
Lunder Shoe Corporation d/b/a Bruce Shoe Company, hereinafter
known as Lunder, on and after October 11, 1951, refused to bargain
with the Union in good faith and thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act, in violation of Section 8 (a) (5) and (1) of the
Act.
Respondent Lunder urges, in effect, that it was under no duty to
bargain with the Union as it was not a true successor of Mitchell Shoe
Company, Inc., in that (1) its operations were different from those of
Mitchell and thus there was no continuation of the employing indus-
try, and (2) it had no knowledge of the certification at the time it
acquired the Biddeford plant."
For the reasons set forth by the Trial Examiner we find, contrary
to Lunder's contention, that the Respondent continued the employing
industry. In addition, we rely upon Bruce Lunder's testimony that
"a good substantial proportion, probably well over 50 percent of the
employees who eventually went on the payroll of Bruce Shoe Com-
pany ... sometime during July, had formerly worked for Mitchell."
As to Respondent Lunder's contention that it had no knowledge
of the existing certification at the time it commenced operation of the
Biddeford plant, we are satisfied, as was the Trial Examiner, that
Respondent Lunder took over the operation of the plant with full
knowledge of the existing certification issued by the Board on October
19, 1950. In addition to the reasons fully set forth by the Trial
Examiner, we rely upon the fact that Julian Weinstein, an officer,
stockholder, and general manager of Mitchell Shoe Company, Inc.,
was also general manager of Respondent Lunder for 4 months after
the transfer. Weinstein was aware that the Union was certified by
the Board as collective-bargaining representative of the Mitchell
employees in October 1950, and was thereafter authorized by Board
election in March 1951, to enter into a union-security agreement"
Indeed, as general manager of Mitchell Shoe Company, Inc., Wein-
stein personally carried on extensive contract negotiations with the
Union up to March 1951.$ And after Respondent Lunder had pur-
chased the Biddeford plant on or about June 29, 1951, Julian Wein-
6 "The very nature of a certification of a union as bargaining agent for a group of
employees compels the conclusion that a mere change in employers does not operate to
destroy the effectiveness of the certification ." N. L. If. B . v. Armato, 199 F 2d 800.
' Case No. 1-UA-3810. Although Weinstein testified that he did not recall this election
having been held among the employees of Mitchell Shoe Company , Inc., in March 1951,
the record shows that he signed on behalf of Mitchell Shoe Company , Inc., the tally of bal-
lots prepared after the counting of the ballots cast. This tally of ballots is dated March
15, 1951.
g Although no contract ever resulted from these negotiations , Weinstein had submitted a
proposed contract to his father , principal stockholder of Mitchell Shoe Company , Inc., for
his approval.
LUNDER SHOE CORPORATION 1325
stein continued to serve in his same capacity as general manager for
Lunder until the latter part of October 1951. As general manager
of Lunder, Weinstein hired and discharged personnel, gave directions
to the foremen, and was responsible for the entire operation of the
Biddeford plant. His authority was exceeded only by that of Michael
Lunder, the president of Respondent Lunder. It is thus clear, in view
of Weinstein's active managerial position with Respondent Lunder,
that his knowledge of the Union's outstanding certification is attribut-
able to Respondent Lunder,9 and we so find.
3. The Trial Examiner found that Respondent, Bruce Shoe Com-
pany, Inc., hereinafter known as Respondent Bruce, a successor of
Respondent Lu)1der, also refused to bargain in good faith with the
Union and thereby interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed by Section 7 of the
Act, in violation of Section 8 (a) (5) and (1) of the Act.
However, as the record shows, and as the Trial Examiner found,
that Bruce became a successor of Respondent Lunder after the orig-
inal charge in these proceedings had been filed, and as the record does
not establish that Bruce played any part in the commission of its
predecessor's unfair labor practices, the Board believes that it can
fully effectuate the policies of the Act by merely requiring Bruce, as
well as Respondent Lunder, to remedy the unfair labor practices as
herein found. Accordingly, we shall reverse the Trial Examiner's
findings that Bruce violated Section 8 (a) (5) and (1) of the Act,
but we do find that Respondent Bruce , as well as Respondent Lunder,
is responsible for remedying the unfair labor practices committed by
Respondent Lunder io
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Lunder Shoe Corporation
d/b/a Bruce Shoe Company,11 and its successor, Bruce Shoe Company,
Inc., Biddeford, Maine, jointly and severally, and their officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively concerning wages, hours, and
other conditions of employment with United Shoe Workers of Amer-
ica, CIO, as the exclusive representative of all production and main-
9 Julian Weinstein was still general manager on October 11, 1951, at a time when Fecteau
talked to Michael Lunder by telephone and sought to bargain on behalf of the Union.
10 The Birdsall -Stockdale Motor Company , 101 NLRB 305; Auto part Manufacturing
Company, 91 NLRB 80; Alexander Milburn Company, 78 NLRB 747.
' The provisions of paragraphs 1 (a) and 2 (a) of this Order apply to Respondent
Lunder only insofar as it may retain or reacquire control of the Biddeford plant.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenance employees employed at the Biddeford plant, exclusive of
executives, foremen, salesmen, office and clerical employees, part-time
employees, watchmen, professional employees, and all supervisors as
defined in the Act.
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist United Shoe Workers of
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement,
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning wages, hours, and
other conditions of employment with United Shoe Workers of Amer-
ica, CIO, as the exclusive representative of all employees in the afore-
mentioned appropriate unit, and if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at the plant in Biddeford, Maine, copies of the notice
attached hereto and marked "Appendix A." 12 Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by representatives of Lunder Shoe Corpora-
tion d/b/a Bruce Shoe Company, and Bruce Shoe Company, Inc.,
respectively, be posted by them immediately upon receipt thereof, and
be maintained by them for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the said Re-
spondents to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order what steps the Re-
spondent Lunder Shoe Corporation d/b/a Bruce Shoe Company, and
its successor Bruce Shoe Company, Inc., have taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
Respondent Bruce Shoe Company, Inc., engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (5) and
(1) of the Act, be, and it hereby is, dismissed.
12 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
LUNDER SHOE CORPORATION
Appendix A
NOTICE TO ALL EMPLOYEES
1327
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
IVE WILL bargain collectively, upon request, with UNITED SHOE
1VoRKERs or AMERICA, CIO, as the exclusive representative of all
our employees in the unit described herein with respect to rates
of pay, hours of employment, or other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All production and maintenance employees at our Biddeford,
Maine, plant, excluding executives, foremen, salesmen, office
and clerical employees, part-time employees, watchmen, pro-
fessional employees, and supervisors as defined in the Act.
AVE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the above-named
labor organization, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or refrain from any
and all such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the National Labor Relations Act.
All our employees are free to become, remain, or refrain from be-
coming members of the above-named union, or any other organization,
except to the extent that this right may be affected by an agreement
in conformity with Section 8 (a) (3) of the Act.
LUNDER SHOE CORPORATION d/b/a
BRUCE SHOE COMPANY,
Employer
Dated -------------------- By --------------------------------
(Representative ) ( Title)
BRUCE SHOE COMPANY, INC.
(Successor to Employer)
Dated -------------------- By --------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon a charge, an amended charge, and a second amended charge, respectively
duly filed on March 26, 1952, August 4, 1952, and August 12, 1952, by United
Shoe Workers of America, CIO, herein called the Union, the General Counsel
of the National Labor Relations Board, respectively called herein the General
Counsel and the Board, by the Regional Director for the First Region, issued a
complaint dated August 21, 1952, against Lunder Shoe Corporation d/b/a
Bruce Shoe Company and Bruce Shoe Company, Inc. as Respondents, respectively
called herein Lunder and Bruce. The complaint as amended alleges that on or
about September 27, 1951, and at all times thereafter, in violation of Section 8
(a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act, Respondents refused and con-
tinued to refuse to bargain with the Union as the exclusive representative of
an appropriate unit of employees employed in the plant at Biddeford, Maine.
Respondents filed answers in which they denied the commission of the unfair
labor practices ascribed to them. Lunder answered that it was engaged in
the manufacture, sale, and distribution of shoes at the Biddeford plant from
on or about August 1, 1951, to on or about July 1952 where it was the employer
of employees working there from on or about August 1, 1951, to on or about
March 1, 1952, and for no other period. Bruce answered that it has engaged in
the manufacture, sale, and distribution of shoes at the Biddeford plant since
on about March 1, 1952, where it has been the employer of employees working
there only since on or about March 1, 1952.
Pursuant to notice a hearing was held at Biddeford, Maine, and at Boston
and Newton, Massachusetts, on various dates between September 30 and October
13, 1952, before Stephen S. Bean, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. All parties were represented and afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues.
In their answers, each Respondent averred in part that the Board is in viola-
tion of Section 3 (a) of the Administrative Procedure Act, and each moved
that the complaint be dismissed on the ground of such alleged violation. Their
argument on this motion may be reduced to a point to the effect that although
the Board has stated and published in the Federal Register procedure respecting
the issuance of a complaint upon or after the filing of a or the charge, it has
not thus, made reference to an amended charge, that the complaint is based in
part upon two amended charges, and that accordingly Respondents may not be
required to resort to procedure not so stated and published. Upon principles
fully set forth in Cathey Lumber Company, 86 NLRB 157, I denied these motions.
During the hearing, it developed that the name of Bernard L. Alpert, Regional
Director, of the Board for the First Region appearing on the certification of
representatives issued on October 19, 1950, certifying the Union as the exclusive
representative of all the employees in an appropriate unit of Mitchell Shoe
Company, Inc, herein called Mitchell, who sold its business to Lunder on June
29, 1951, was physically signed by Raymond J. Smith, chief field examiner
of the Board for the First Region, who also wrote the initial "S" under
Alpert's name. Respondents contended that this conduct invalidated the cer-
tification. It not having appeared that Respondents were misled by irregu-
larity, if any there was, in this ministerial procedure, I ruled, contrary to their
contention, on the undenied testimony of Smith to the effect that he signed
LUNDER SHOE CORPORATION 1329
the name of the Regional Director on the certification of representatives in
question under authority delegated to him by the latter, that the Union was
duly certified as the bargaining representative of all production and mainte-
nance employees of Mitchell, employed at its Biddeford, Maine, plant. I now
rule that the certification in question (Exhibit GC-8) may be received in evidence.
In cross-examination by Respondents, George Fecteau , territorial representa-
tive of the Union, testified that no local of the Union, accepting into member-
ship employees of Mitchell, Lunder, or Bruce, has ever been in existence. Re-
spondents took exception to my excluding a succeeding question directed at
investigating whether a negotiating committee which was in existence at some-
time while the plant was operated by Mitchell, was elected by Mitchell's em-
ployees and made an offer to prove that at the time of the filing of the petition
for certification there was a committee acting as a labor organization which
was not in compliance with Section 9 (f), (g), and (h) of the Act. No offer
of proof that the members of the negotiating committee were "officers" within
the meaning of Section 9 (f) (2), was made, and any answers to the question
as to whether they were elected could not encompass proof that they were
officers of a labor organization. The offer of proof was rejected.
Respondents ' motions to dismiss the complaint because of lack of proof are
disposed of in accordance with this report. The General Counsel's motion to
conform the pleadings to the proof as to names, dates, and any other minor
variances was granted. Respondents and the General Counsel filed briefs on
November 24, 1952.
I wish that this record might have been neater. But I can derive consolation,
despite its shortcomings, in recalling the reflections of Judge Learned Hand at
Bryn Mawr a quarter of a century ago when he said :
A judge's life, like every other, has in it much of drudgery , senseless
bickerings, stupid obstinacies, captious pettifogging, all disguising and
obstructing the only sane purpose which can justify the whole endeavor.
These take an inordinate part of his time ; they harass and befog the un-
happy wretch, and at times almost drive him from that bench where like any
other workman he must do his work. If that were all, his life would be
mere misery, and he a distracted arbiter between irreconcilable extremes.
But there is something else that makes it-anyway to those curious crea-
tures who persist in it-a delectable calling. For when the case is all in
and the turmoil stops, and after he is let alone, things begin to take form.
From his pen or in his head, slowly or swiftly as his capacities admit, out
of the murk the pattern emerges, his pattern, the expression of what he has
seen and what he has therefore made, the impress of his self upon the not
self, upon the hitherto formless material of which lie was once but a part
and over which he has now become the master. That is a pleasure which
nobody who has felt it will be likely to under-rate.
And now we may move on to the substance of the case. Upon its entire record,
and from my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Lunder maintained its principal office at 43 Park Street, Dover,
New Hampshire, and a place of business at 24 State Street, Biddeford, Maine,
from on or about June 29, 1951, to on or about July 22, 1952, where at such latter
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
address it was engaged in the manufacture, sale, and distribution of women's
shoes. During this period it caused quantities of its finished products of a value
in excess of $25,000 to be sold and transported from said place of business, in
interstate commerce, to States of the United States other than the State of
Maine. It admits that it is engaged in commerce within the meaning of the Act,
and I so find.
Respondent Bruce at all times since on or about July 22, 1952, maintained
its principal office and place of business at 24 State Street, Biddeford, Maine,
where it has continuously been engaged in the manufacture, sale, and distribu-
tion of women's shoes. During the period from on or about July 22, 1952, up
until the present time it has caused quantities of its finished products of a value
in excess of $25,000 to be sold and transported from said place of business in
interstate commerce, to States of the United States other than the State of Maine.
It admits that it is engaged in commerce within the meaning of the Act, and I
so find.
II. THE ORGANIZATION INVOLVED
United Shoe Workers of America, CIO, is a labor organization which during
the times material herein admits or admitted to membership employees of
Mitchell, of Respondent Lunder, and of Respondent Bruce.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
1. The employing industry and its relationship to the Union
For some period before the time of the alleged unfair labor practices, Mitchell
was engaged in the manufacture and sale of women's shoes and operated the
plant involved herein. As disclosed by the Board's records, on October 19, 1950,
following a consent election in which 136 employees of Mitchell voted in favor
of the Union and 33 cast votes against the Union, the Union was certified by
the Board as the certified bargaining representative of Mitchell's employees in
a unit consisting of production and maintenance employees. On June 29, 1951,
Mitchell assigned its leases and sold its business including all of the personal
property, machinery, and equipment at the plant, to Respondent Lunder. Mitch-
ell retained the right to use such portions of the premises as might be neces-
sary to finish shoes which it was processing. Beginning with the first week of
July 1951, Lunder started hiring and putting to work employees who had worked
for Mitchell.
During the remainder of the month, while the manufacture of some shoes
was being started by Lunder and the manufacture of others was being com-
pleted by Mitchell, workers, a very substantial percentage of whom had been
employed by Mitchell, progressively entered Lunder's employment and left Mitch-
ell's employment. By the end of the month, Mitchell had completely ceased
operations and all employees at the plant were then Lunder's. Before June 29,
1951, Michael Lunder, president of Lunder, was aware of the fact that Mitchell
had been negotiating with the Union.'
'Julian S. Weinstein testified that he told Michael Lunder that the Union had sub-
mitted a contract to Mitchell. He then changed or corrected his testimony to say that he
did not say anything about a contract , but that he did tell Michael Lunder that Mitchell
had been negotiating with the Union Michael Lunder testified that Weinstein Informed
him around June 1951 that Mitchell had been negotiating with the Union for a few
months, that nothing had been heard from the Union for a few months , and that as far
as he was concerned the Union was dormant.
LUNDER SHOE CORPORATION 1331
Bruce L. Lunder is the assistant treasurer and is or was a director of Re-
spondent Lunder. He is the treasurer of Respondent Bruce, and the son of
Michael Lunder. He entered the plant about the first of July 1951, and at first
largely occupied himself in making observations and learning the business.
Julian S. Weinstein, an officer and stockholder of Mitchell, was hired by Michael
Lunder and remained on, as general manager for Lunder for about 4 months.
Moe Rosenbloom who acted in a supervisory capacity for Lunder in Dover as-
sumed some of Weinstein's duties when the latter left. After September 1951,
Bruce L. Lunder started purchasing supplies. In March 1952, Rosenbloom left
Lunder's employ. Bruce L. Lunder became general manager about this time.
By then according to Respondents' evidence, conversations had been and were
being engaged in relative to the sale of the business. A written agreement of
sale from Lunder to Bruce was made on July 22, 1952.
Mitchell's stock fitting room foreman was employed by Lunder and continued
to work in the same capacity for Lunder for about 3 months. Mitchell's making
and packing room foreman was not employed by Lunder. Mitchell's lasting room
supervisor came to work for Lunder and remained about 6 weeks. Mitchell's
stitching room supervisor remained on with Lunder for about 11 months.
Mitchell's cutting room supervisor was employed by Lunder. One hundred and
thirty-two production and maintenance employees, some of whom had not worked
for Mitchell, were on Lunder's payroll by the week ending August 25, 1951. Of
these 132, 86 remained in Lunder's employ on March 1, 1952. Of these 86, 81
remained in Bruce's employ on September 26, 1952.
In connection with the sale of June 29, 1951, Lunder agreed to pay Mitchell
$33,331 for the machinery, equipment, and personal property located in the cut-
ting, stitching, lasting , California, making, packing, stockfitting, shipping, and
maintenance rooms. It agreed to pay $11,368 for miscellaneous equipment and
office furniture and supplies and $25,000 for lasts, dies , and patterns. Mitchell
agreed to execute documents necessary to transfer to Lunder all machines leased
from United Shoe Machinery Corporation.
Lunder purchased some new machinery between June 29, 1951, and March 1,
1952, at a cost of approximately $9.000 or $10,000. Some of the machines on
which Mitchell had made "Californias" were returned to United Shoe Machinery
Corporation. New lasts, dies, and patterns were purchased at a cost of $6,500 to
$7.000. Basically there was no physical change made by Lunder in the setup of
the factory.
As appears above, Mitchell manufactured women's shoes. The work that has
been performed in the plant by Lunder and Bruce since June 29, 1951, up to the
present time has likewise consisted of manufacturing and selling women's shoes.
Mitchell made a process known as California or casual shoes as well as a high
poca boot. It manufactured some high-heeled shoes. Not all the shoes Mitchell
made were on a compo construction. Lunder and Bruce specialized in flat heel
shoes on a compo construction. They did not make wedge heel shoes.
The agreement of July 22, 1952,2 called for the payment of $100,000 by Bruce.
On August 29, 1952, Lunder filed a notice with the Biddeford city clerk that it was
no longer doing business at 24 State Street, Biddeford. Sidney Spiegel became
Bruce's president and Bruce L. Lunder its treasurer, and each invested $50,000.
The latter's payment was made by 10-year notes endorsed by Michael Lunder.
Both Spiegel and Bruce Lunder were aware of the fact that a charge had been
served on Lunder on March 27, 1952.
On or about July 12, 1952 , articles of incorporation for Respondent Bruce were filed
with the Secretary of State for the State of Maine.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter Bruce continued to manufacture and sell substantially the same
products as Lunder had manufactured and sold. It assumed all the assets and
liabilities of Lunder; used the same plant and equipment; retained essentially the
same supervisory staff and working force and continued to assign to them the
same duties they had performed for Lunder ; and Bruce L. Lunder remained in
the position of general manager which he had taken over for Lunder about March
1, 1952.
2. The alleged refusal to bargain
In the latter part of July 1951, George Fecteau, as above appearing, territorial
representative of the Union, having heard from William Dallman, field repre-
sentative of the Union, that Mitchell had sold its business to Lunder, telephoned
from his office at Manchester, New Hampshire, to Michael Lunder at his office
in Biddeford, Maine. Fecteau pointed out to Lunder that the Union was
the bargaining agent for the employees in the Dover plant and asked for an
appointment for the purpose of signing or discussing a contract which had
previously been orally negotiated with Mitchell. Michael Lunder replied that
Julian S. Weinstein was still with Lunder, was in charge of labor relations, and
that Fecteau would have to communicate with Weinstein. Fecteau attempted
to reach Weinstein at Dover by telephone about twice up until sometime in
September 8
On October 11, 1951, Fecteau by telephone told Michael Lunder that he had
not been able to reach Weinstein and again asked Lunder for an appointment
with him for the purpose of negotiating a contract. Lunder again referred
Fecteau to Weinstein. On January 21, 1952, Fecteau wrote Michael Lunder at
Dover that the Union had been chosen the bargaining agent for employees at
8 Fecteau testified that he called Weinstein without reaching him possibly once each 2
weeks Dom the time of his talk with Michael Lunder in the latter part of July until he
went to St. Louis, he believed, on September 9 and that to the best of his recollection he
unsuccessfully attempted again to reach Weinstein by telephone between September 15
and October 1; and that he talked again to Michael Lunder by telephone on October 11,
1951. Weinstein testified that he was general manager for Lunder until toward the end
of October 1951 when he was discharged. Fecteau further testified that he made addi-
tional unavailing attempts to communicate by telephone with Michael Lunder after October
1951 and did finally talk to him on March 18, 1952. It was Fecteau's testimony that the
unsuccessful calls to Michael Lunder and to Weinstein were person-to-person calls and
that he had left his number with the operator each time it had been reported that either
man was not available, with a request that he be called back. Michael Lunder and Wein-
stein each denied knowledge of any request that he call Fecteau. Lunder admitted talk-
ing to Fecteau in July 1951 and in March 1952, but denied talking to him in October 1951.
One of Lunder's and Bruce's switchboard operators at Biddeford testified she has no
recollection of any incoming telephone calls from Fecteau to Weinstein or to the plant.
Another operator at Biddeford testified that to her recollection she received no such
calls between the week before Thanksgiving 1951 and January 29, 1952. The telephone
company records which go back to September 26, 1951, disclose that Fecteau made a com-
pleted call to Michael Lunder at Biddeford on October 11, 1951. Lunder's switchboard
operator at Dover testified she could not recall any person-to-person calls from Fecteau to
Michael Lunder since January 22, 1951, and that she did remember such a call in March
1952. The telephone company records disclose that such a call was made on March 18,
1952. These records do not reveal that any person-to-person calls were made to Weinstein
by Fecteau after September 26, 1951, or that more than two were made to Lunder by
Fecteau after that date.
In view of the findings I am making respecting Fecteau's three conversations with
Michael Lunder between July 1951 and March 1952 and letter which he addressed to him,
on January 21, 1952, and to the Bruce Shoe Company on March 18, 1952 , I deem it unim-
portant to resolve with the utmost preciseness this confusing conflict of evidence as it
bears upon the questions as to whether Fecteau was less assiduous in his demand for
bargaining than he claims or more diligent than Respondents admit, or whether Respond-
ents were as elusive as the General Counsel apprehends or as ingenuous as they vow.
LUNDER SHOE CORPORATION 1333
the Biddeford plant formerly run by Mitchell and requested a bargaining
meeting. Fecteau received no reply to this communication.
On March 18, 1952, Fecteau talked with Michael Lunder by telephone a third
time, again pointed out that the Union had been certified as the representative
cf the employees in the Biddeford plant, told him he had been unsuccessful
in his attempts to make contact with Weinstein, and that he would like to
negotiate a contract with Lunder. Lunder then denied that the Union repre-
sented the employees "because of the fact that the Company had been changed
from the Mitchell Shoe to the Bruce Shoe, and . . . the name would change
again to the Spiegel and Bruce. . . . " By letter signed by Michael Lunder,
president and treasurer of Lunder Shoe Corporation, and received by the
Biddeford city clerk on April 23, 1952, Respondent Lunder gave notice that it
was conducting the business at 24 State Street, Biddeford, under the name
and style of Bruce Shoe Company. After talking with Michael Lunder on
March 18, 1952, Fecteau addressed a letter to Bruce Shoe Company at Biddeford
the same day, stating that in the past requests through correspondence and by
telephone that its officials meet with the Union which had been designated as
the bargaining agent of the employees at Biddeford had been unproductive of
results and that if no reply indicating its willingness to meet with the Union
were received it would be forced to take action provided by law.'
No reply was received from this letter and a charge was filed by the Union
S days later. Thereafter, counsel for Respondents by letter dated May 15
stated to Fecteau it had been brought to his attention that the Union had on
previous occasions requested recognition as the collective-bargaining representa-
tives of the employees at the Biddeford plant. Fecteau replied the Union had
not requested recognition for the reason that sometime previous it had been
certified as the bargaining agent of the employees at the plant, but that it had
requested, and again did ask for , a meeting for the purposes of negotiating a
contract. Respondents' counsel 's rejoinder on May 16, 1952, was that the owners
of the company did not believe the Union then represented a majority of the
employees of their company for the purpose of collective bargaining but that
the Union might present whatever evidence of majority it might have. In reply
Fecteau asserted that there seemed to be a persistence in ignoring the issue,
which was not whether the Union had a majority, but rather, whether the
owners would join with it in a bargaining meeting which the Union had been
ready and willing to hold ever since it had been certified.
On May 23, 1952, Respondent Lunder filed a petition for investigation and
decertification of the Union under Section 9 of the Act. On August 19, 1952,
the Regional Director ruled that it did not appear that the petition raised a
question concerning representation and dismissed the petition.
B. Discussion and conclusions
The facts found above established that the Union was certified by the Board
as bargaining representative of Mitchell' s production and maintenance employees
on October 19, 1950.
4 Michael Lunder, Bruce L. Lunder, and Spiegel all denied recalling receiving or seeing
either this letter or that written to Michael Lunder on January 21, 1952. Fecteau signed,
registered , and personally mailed at the Manchester , New Hampshire , post office, the letter
of January 21. The return receipt was signed at Dover by Lunder's employee as Michael
Lunder's agent on January 22, 1952. Fecteau also dictated , signed , and personally regis-
tered the letter of March 18, 1952, to the Bruce Shoe Company . The return receipt was
signed at Biddeford by Respondent Lunder's employee , a shipper , whose duty it was to
pick up the mail , as Bruce Shoe Company's agent on March 19 , 1952 . 1 have no hesitancy
in finding, despite the testimony Of these 3 witnesses , that both of these letters were in
fact received and that their contents became known to Respondent Lunder's officials, 2 of
whom became officials of Respondent Bruce.
257965--54-vol. 103-85
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Lunder took over Mitchell's business on June 29, 1951, with knowledge
of the Union's representative status, the Union thrice by telephone and twice
by letter requested Lunder to bargain.` None of the five requests was pro-
ductive of results. On the date of the third telephone conversation and the
second letter, Michael Lunder, for the first time, questioned the Union's repre-
sentative status. If Lunder's conduct amounted to a failure to bargain in good
faith and if the certification of the Union before the transfers of ownership by
Mitchell to Lunder and by Lunder to Bruce (at a time when the latter was aware
of the service of the unfair labor practice charge against Lunder) was binding
upon Respondents, there can be no question that both Respondents violated
Section 8 (a) (5) and (1) of the Act.' A Board certification in the ordinary
case must be honored by an employer for a reasonable length of time, usually
for 1 year, regardless of any intervening turnover in personnel. Such certifica-
tion normally runs not only with a particular employer but also with an employing
industry and is binding upon all employers who conduct the industry.
The central preliminary issue in this case is, therefore, whether upon the
record as a whole, despite the transfers in ownership from Mitchell to Lunder
and from Lunder to Bruce, there was a practical continuity of the employing
industry and that consequently Respondents were under a duty to bargain with
the certified Union. Respondents contend in part, that they constituted sub-
stantially different businesses from the business conducted by Mitchell. Con-
sequently, they assert the "employing industry" rule and the "successorship"
doctrine have no application and that they were under no obligation to bargain
with the Union.
This question, then, narrows down to whether the "employing industry" re-
mained essentially the same or became substantially different after the transfers
of ownership on June 29, 1951, and July 22, 1952 In determining this issue the
critical consideration is whether, in their totality, there was after these dates
a sufficient continuity of business operations, supervisory personnel, and working
force to impel one to the conclusion that there was essentially a practical con-
tinuation of the employing industry, without significant change in essential
attributes of the employment relationship. On the strength of the facts found
in section III A 1, and which require no reiteration, I conclude and find con-
trary to Respondents' contention that Respondents successively took over and
continued the employing industry, and that the essential continuity of the
employing industry was established, when, as I have found in section III A 2,
the Union requested bargaining in July 1951 and on October 11, 1951, within a
period of 1 year of the date of its certification by the Board, and on occasions
thereafter. I further conclude, since the officers of Respondent Bruce were aware
on July 22, 1952, of the Union's outstanding claim of the commission of, and of
the pending of proceedings alleging, unfair labor practices on the part of Lunder,
that it also should become liable to remedy whatever such practices in which
Lunder may have engaged.'
These conclusions are not, as Respondents assert, invalidated by the fact that
Lunder made some changes in product and machinery or, as Respondents con-
, Here, unlike the situation in C. L. Bailey Grocery Company, 100 NLRB 576, Lunder
could not reasonably have interpreted Fecteau's request as one to bargain on the basis of
some unit in which the Union did not have a majority, rather than a request to bargain
with respect to the unit in which the Union had majority representation. Moreover
Respondents did not refuse to bargain with the Union on the ground that it sought to
bargain for an inappropriate unit.
a Medo Photo Supply Corp v. N L. R B., 321 U. S. 678, 687; N. L. R. B. v. Crompton
Highland Mills, 337 U. S 217, 223-225.
7 The Birdsall-Stockdale Motor Company, 101 NLRB 505.
LUNDER SHOE CORPORATION 1335
tend, that the General Counsel failed to sustain the burden of proving that
there was a. substantial continuity of working force. A couple of examples of
cases supporting a result quite the opposite of that at which it is asked I arrive
are found in Simmons Engineering Co., 65 NLRB 1373, and Armato and Wire
d Sheet Metal, 97 NLRB 971, affd. 199 F. 2d 800 (C. A. 7). In the first case the
employer , in addition to manufacturing bakery blades as had its predecessor,
also manufactured cutlery blades and it maintained that only 9 or 10 of the
voters in the election were still employed, that the unit had increased from.
approximately 17 employees to 28, and that of the original group of voters re-
maining in its employ , 5 had signed membership cards in another union since
the election. In the second case, Armato's work force had been considerably
reduced following the date of certification and after the unfair labor practices
occurred Wire & Sheet Metals' force increased to 25, 17 of whom were
newcomers.
It is not essential that a successor enterprise permanently retain the pred-
ecessor 's entire supervisory force. Here all but 1 of 6 supervisors were retained
by Lunder . Although 3 of the remainder had, for various reasons left Lunder's
employ by about 4 months after the date of the sale, it is clear that by that time
the essential characteristics of the relationship of employment between the
working force and the then proprietor was well established without material
change from those that existed when the previous owner was in control.
The central ultimate issue in this case , then , is whether in fact Michael
Lunder's conduct amounted to a failure to bargain in good faith . As I have found,
Mr. Lunder who was the president of Respondent Lunder, refused personally
to deal with the Union in July 1951 and referred its representative to the plant
general manager . This was at a time more than 6 months prior to the date
and service of the original charge and Section 10 (b) of the Act, as well as the
allegations of the complaint, preclude and obviate any necessity of determining
whether this conduct constituted a failure to bargain in good faith. But it can
be taken at least as an indication of a lack of desire on President Lunder's
personal part to discuss the matter of bargaining with the Union.
We have observed that on October 11, 1951, which was within 1 year of the date
of the certification of the Union and within 6 months of the filing and service of
the first charge, Michael Lunder again declined to meet personally with the Union
and for a second time referred Fecteau to Weinstein.
Although the latter was displaced about 3 weeks later, Mr. Lander, who was
well acquainted with Fecteau through the latter's dealings in behalf of the Union
which was also the bargaining representative at Respondent Lunder's Dover
plant, apparently made no effort at any time thereafter to apprise Fecteau of
the fact that Weinstein was no longer available for discussion. And so things
ran along until January 21, 1952, when Fecteau wrote Michael Lunder the letter
reiterating substantially the same request that a meeting for the purpose of nego-
tiating a contract might be had. Mr. Lunder ignored this letter. Weinstein, to
whom Fecteau had been referred, had long since left the Biddeford plant and
finally Fecteau made the telephone call to Michael Lunder on March 18, 1952, tell-
ing him he had been unsuccessful in his attempts to reach Weinstein and again
asking for a bargaining meeting. Then for the first time, Mr. Lunder made his
assertion that in his opinion the Union did not represent the employees in the
Biddeford plant and that he did not feel inclined to negotiate. The letter sent by
Fecteau the same day asking , for a fifth time, that bargaining be undertaken
evoked no response.
The requirement to bargain in good faith is not fulfilled by an employer when
its president for whose conduct it is responsible , sits back and repeatedly refers
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requests of a collective-bargaining representative for meetings to the local man-
ager of 1 of its 2 plants, who takes no affirmative action to arrange a meeting
between the 2, refrains from informing the representative, who complains of his
inability to make contact with the manager, that he no longer is employed, and
finally after 7 or 8 months belatedly asserts that he doubts the Union's representa-
tive status. Neither does a failure to answer letters staisfy the good-faith re-
quirement. Nor does an employer's subsequent action, taken several weeks after
a charge alleging a refusal to bargain in good faith has been served, in filing a
petition for investigation and decertification of a union, subject such a conclusion
to challenge. Rather does it bear the mark of a shift in strategy from an arti-
fice of attrition to a defense of digression, resorted to in the hope of confusing
the question of good or bad faith.
I am persuaded that Michael Lunder adopted his extended course of fending off
Fecteau not because of any good-faith doubt respecting the status of the Union,
but for the purpose of avoiding the assumption of those obligations which the
Act prescribes, and that his conduct was in disparagement of the collective-
bargaining process.
In view of the foregoing and upon consideration of the totality of Respondent
Lunder's conduct, and of the record as a whole, I find that from October 11, 1951,
and at all times thereafter, Respondent Lunder evinced an intention to avoid
its duty to bargain in good faith, and refused to bargain in good faith, with the
Union, and thereby interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act, in violation of Section
8 (a) (5) and (1) of the Act.
Respondent Bruce took over the business of Respondent Lunder with notice
of the existence of unremedied unfair labor practices committed by the latter
and continues to operate the business without any discernible change of existing
labor policy. Under these conditions the Board has consistently held that both
businesses are liable to remedy such unfair labor practices. I find, therefore,
that from July 22, 1952, and at all times thereafter, Respondent Bruce refused
to bargain in good faith with the Union and thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by Section 7
of the Act, in violation of Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring
in connection with the operations of the Respondents set forth in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, I
will recommend that they cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It has been found that Respondents have refused and are continuing to refuse
to bargain collectively with the Union as the exclusive representative of the
employees in an appropriate unit. I therefore shall recommend that Respond-
ents, upon request, bargain collectively with the Union as such representative
and, in the event that an understanding is reached, embody such understanding
in a signed agreement.
BAYLY MANUFACTURING COMPANY 1337
In view of the nature of the unfair labor practices committed, the commission
of similar and other unfair labor practices may be anticipated. The remedy
should be coextensive with this threat. I shall, therefore, recommend that
Respondents cease and desist from in any manner infringing upon the rights
of employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. United Shoe Workers of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. Lunder Shoe Corporation d/b/a Bruce Shoe Company and Bruce Shoe
Company, Inc., are engaged in commerce within the meaning of the Act.
3. All production and maintenance employees of Respondents employed at the
Biddeford plant, exclusive of executives , foremen, salesmen , office and clerical
employees , part-time employees , watchmen , professional employees, and all super-
visors as defined in Section 2 (11) of the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
4. United Shoe Workers of America, CIO , was on October 19, 1950 , and at all
times since has been the exclusive representative of all employees in the afore-
said appropriate unit for the purposes of collective bargaining within the mean-
ing of Section 9 (a) of the Act. Respondent Lunder Shoe Corporation d/b/a
Bruce Shoe Company from October 11, 1951, and thereafter , and Respondent
Bruce Shoe Company, Inc., from July 22, 1952, and at all times thereafter, by
refusing to bargain collectively with United Shoe Workers of America, CIO, have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
5. By interfering with , restraining , and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices within the meaning
of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication in this volume.]
BAYLY MANUFACTURING COMPANY and UNITED GARMENT WORKERS OF
AMERICA, AFL
Los ANGELES JOINT BOARD, AMALGAMATED CLOTHING WORKERS OF
AMERICA, CIO and UNITED GARMENT WORKERS OF AMERICA, AFL.
Cases Nos. 01-CA-1309 and 21-CB-399. March 31, 1953
Decision and Order
On October 20, 1952, Trial Examiner Irving Rogosin issued his
Intermediate Report in the above-entitled proceedings, consolidated
for hearing, finding that the Respondents had engaged in certain
103 NLRB No. 140.