Cumberland Shoe Corp.

National Labor Relations Board - Board Decisions

Oct 29, 1963

144 N.L.R.B. 1268 (N.L.R.B. 1963)

1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or to refrain from becoming or
remaining , members of any labor organization.
ALBERT SIMON, INC.,
SIMON PHONOGRAPHS, INC.,
AMERICAN PHOTO MACHINE, INC.,
Employers.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify any of the above-designated employees if presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor, Squibb Building , 745 Fifth Avenue, New York 22, New York, Telephone
No. Plaza 1-5500, if they have any question concerning this notice or compliance
with its provisions.
Cumberland Shoe Corporation and Boot and Shoe Workers'
Union, AFL-CIO. Case No. 26-CA-1469. October 29, 1963
DECISION AND ORDER
On June 26, 1963, Trial Examiner Eugene E. Dixon issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the attached, Interme-
diate Report. He also found that Respondent had not engaged in
certain other alleged unfair labor practices and recommended dis-
missal of these allegations of the complaint. Thereafter, Respond-
ent and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.
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 Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report and the entire record in this case, including the
exceptions and briefs , and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner only to the extent they are
consistent herewith.
1. The Trial Examiner found that Respondent did not violate Sec-
tion 8(a) (5) of the Act. We find merit in the General Counsel's
exceptions to this finding.
144 NLRB No. 124.
CUMBERLAND SHOE CORPORATION 1269
At the time the Union requested recognition and bargaining it had
received authorization cards from approximately 80 of the 140 em-
ployees then in the appropriate unit.' The Trial Examiner, relying
upon the Board's decision in Englewood Lumber Company,2 held that
17 of the Union's cards were not valid authorizations for purposes of
determining majority status because the employees who signed them
testified that they were told when they were solicited by fellow em-
ployees that a purpose of the cards was to secure an election. He
concluded, therefore, that the Union did not represent a majority of
the employees when it demanded recognition.
We believe that the instant case is factually distinguishable from
Englewood Lumber, supra, and that hence that case is inapplicable.
While it is true, as found by the Trial Examiner, that 17 of the
signatories testified that they were told that a purpose of the cards
was to secure a Board election, it does not appear that they were told
that this was the only purpose of the cards.' In this case the cards,
on their face, explicitly authorized the Union only to act as bargain-
ing agent of the employees, and,, contrary to the implied finding of the
Trial Examiner, the failure of the Union's solicitors to affirmatively
restate this authorization does not indicate that it was abandoned or
ignored. Thus, there is no evidence here to negative the overt action
of the employees in signing cards designating the Union as their
bargaining agent, and the instant situation is not one in which the
Union has beguiled employees into signing union cards.' In view of
the Respondent's threats, promises of benefit, and coercive interroga-
tion of employees, as found by the Trial Examiner, we are persuaded
that Respondent's refusal to bargain with the Union on January 23,
1963, was not the result of a good-faith doubt of the Union's majority,
but in order to gain time to destroy that majority.' We find, accord-
ingly, that the Union has demonstrated its majority status and that
Respondent, by refusing to recognize or bargain with it, violated Sec-
tion 8(a) (5) and (1) of the Act.'
1 The unit agreed upon by the parties hereto consists of "All production and maintenance
employees employed at the Respondent 's Chapel Hill, Tennessee, plant, excluding office
clerical employees , technical and professional employees, watchmen and guards , and super-
visors as defined in the Act."
2 130 NLRB 394
8 In the Englewood Lumber case the solicitor explained to almost all the employees that
the cards were only for the purpose of securing a Board election and thereby secured many
signatures , including those of two employees whose hostility to the designated union was
open and notorious and explicitly communicated to the solicitor. Cf. also, Morris cE
Associates, Inc, 138 NLRB 1160, 1164.
'Koehler 's Wholesale Restaurant Supply, 139 NLRB 945.
3 Joy Silk Mills v. N.L R B., 185 F. 2d 732 (C.A.D.C.), cert. denied 341 U S 914.
O Member Brown joins in this finding because , in his opinion , the best evidence of em-
ployees' intent , le, their signature to cards designating the Union as their bargaining
agent, establishes the majority status of the Union at the time it requested recognition.
He believes it unnecessary and inappropriate to considered any representations the Union's
solicitors may have made or what the employees may have been told.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent contends, and the General Counsel disputes, that five
employees classified as watchmen should be included in the bargaining
unit on the ground that they do not meet the statutory definition of
watchmen or guards. The employees in question guard the plant
doors to prevent removal of shoes during the 45-minute lunch period
and during three 10-minute breaks each morning and three 10-minute
breaks each afternoon. In addition, they make rounds each hour of
every night and lock the doors and gates. It is their duty to report to
supervisors any attempts to remove shoes from the property. Al-
though they do some maintenance work, they are classified as watch-
men and it is obvious that they devote a substantial portion of their
time to guarding Respondent's property. It is well settled that em-
ployees whose duties include the enforcement of rules for the pro-
tection of the employer's property and the safety of persons on the
premises,are excluded from production and maintenance units.' We
shall, accordingly, exclude them from the unit.
Respondent further contends that two leadmen and a supervisory
trainee should be included in the production and maintenance unit
whereas the General Counsel contends that the three are supervisors
as defined in the Act. The two leadmen, White and Johnson, fill in
at the machines of employees in their respective sections when the regu-
lar relief men are busy, return defective work to the employees respon-
sible therefor and point out the defects, reassign employees from one
machine to another in order to balance production, and set and adjust
machines as the occasion requires. Their compensation is computed
on pan hourly basis in contrast to that of foremen and higher super-
visors, who receive weekly salaries. Neither is concerned with hiring,
firing, layoffs, promotions, granting of overtime, or disciplining of
employees nor does the record indicate that either may make effective
recommendations in connection with such actions. Although several
employees testified that either White or Johnson gave them orders,
it appears that the orders referred to were those described above and
were merely routine directions which did not require the exercise of
discretion or the use of independent judgment. Certain of these
"orders"' were, in fact, communications from foremen and the plant
superintendent which were merely relayed through White and John-
son to the employees for whom they were intended. Under these
circumstances we find that White and Johnson are not supervisors
as defined in the Act ' and ' are, therefore, included in the bargaining
unit.
Allin, who is carried on Respondent's payroll as a trainee, in the
prefitting-lining department, spends more than half of his working
hours on a repair machine and in matching and delivering work. He
was never told that' he was in training for any particular supervisory
7 See Wonderknit Corporation, 123 NLRB 53.
CUMBERLAND SHOE CORPORATION 1 271
position although he testified that he hopes and that he assumes he
will be a supervisor upon completion of his training. Like the two
leadmen, Allin occasionally moves employees from one machine to
another in accordance with schedules or work layouts set in advance
by the foreman of his department and any orders he may give are
either mere transmissions of instructions or of a routine nature. Re-
spondent's representatives testified that it was Respondent's hope that
Allin would eventually qualify as a foreman. Whatever his ultimate
responsibility may be, however, it is clear that Allin does not presently
possess any of the attributes of a supervisor enumerated in the Act.
He is, therefore, included in the unit.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Cumberland
Shoe Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees unlawfully regarding their union
activities or sympathies, threatening them with reprisals, or prom-
ising them benefits in connection with their union activities or
sympathies.
(b) Refusing to engage in collective bargaining with Boot and Shoe
Workers' Union, AFL-CIO, as the exclusive bargaining representa-
tive of its employees in a unit consisting of its production and main-
tenance employees, with respect to rates of pay, hours of employment,
and other terms and conditions of employment.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed them in
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Boot and Shoe Workers'
Union, AFL-CIO, as the exclusive representative of all employees in
the aforesaid appropriate unit, with respect to rates of pay, hours of
employment, and other terms and conditions of employment, and, if
an understanding is reached, embody such understanding in a signed
agreement.
(b) Post at its plant in Chapel Hill, Tennessee, copies of the
attached notice marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Twenty-sixth Region, shall,
after being duly signed by Respondent's authorized representative, be
8In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals, Enforcing an Order "
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps it has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
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, as amended, we hereby notify our employees that :
WE WILL NOT threaten our employees with economic reprisals
if they choose Boot and Shoe Workers' Union, AFL-CIO, or any
other union, as their bargaining representative, or with economic
benefits if they refrain from such choice.
WE WILL NOT interrogate our employees concerning their or
other employees' union affiliation or activities in a manner consti-
tuting interference, restraint, or coercion in violation of Section
8(a) (1) of the Act.
WE WILL NOT instruct our employees to report on the union
affiliation or activities of other employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce any of our employees in the exercise of their
right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection
as guaranteed by Section 7 of the Act, or to refrain from any or
all such activities.
WE WILL, upon request of the Union, bargain collectively with
Boot and Shoe Workers' Union, AFL-CIO, as the exclusive bar-
gaining representative of our production and maintenance em-
ployees, with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees employed at
the Respondent's Chapel Hill, Tennessee, plant, excluding
office clerical employees, technical and professional employ-
CUMBERLAND SHOE CORPORATION 1273
ees, watchmen and guards, and supervisors as defined in the
Act.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of Boot and Shoe Workers' Union,
AFL-CIO, or any other labor organization.
CUMBERLAND SHOE CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Seventh Floor Falls Building, 22 North Front Street, Memphis,
Tennessee, Telephone No. Jackson 7-5451, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , brought under Section 10(b) of the National Labor Relations
Act, as amended ( 61 Stat . 136), herein called the Act , was heard before Trial Ex-
aminer Eugene E. Dixon at Lewisburg, Tennessee, between April 23 and 25, 1963,
pursuant to due notice with all parties represented . The complaint , issued by the
representative of the General Counsel for the National Labor Relations Board (herein
called the General Counsel and the Board ) on March 7 , 1963, and based on charges
filed by Boot and Shoe Workers' Union , AFL-CIO (herein called the Union) on
February 19, 1963, alleged that the Respondent had engaged in and was engaging
in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act.
In substance the complaint alleged that Respondent engaged in various acts of
interference , restraint , and coercion in connection with rights guaranteed its employees
in Section 7 of the Act and that it refused to bargain with the duly designated collec-
tive-bargaining agent of its employees in an appropriate unit . In its answer Re-
spondent denied the commission of any unfair labor practices.
Upon the entire record in the case ( including excellent briefs from both the General
Counsel and the Respondent ) and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
At all times material herein, Respondent has maintained its principal office and a
manufacturing plant at Chapel Hill, Tennessee, where it is engaged in the manufac-
ture, sale, and distribution of shoes. During the year preceding the issuance of the
complaint, Respondent manufactured, shipped, and sold from its Chapel Hill, Ten-
nessee, plant shoes valued in excess of $400,000 to points directly outside the State
of Tennessee. During the same period of time, Respondent, in the course and
conduct of its business, purchased and caused to be shipped to its Chapel Hill, Ten-
nessee, plant materials for the manufacture of shoes valued in excess of $300,000
directly from States of the United States other than the State of Tennessee. Re-
spondent is, and has been at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Boot and Shoe Workers' Union, AFL-CIO, is, and at all times material herein
has been , a labor organization within the meaning of Section 2(5) of the Act.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The alleged interference, restraint , and coercion
A campaign by the Charging Union to organize Respondent's employees at its
Chapel Hill plant began about January 1, 1963. Several witnesses called by the
General Counsel testified regarding various coercive remarks made to them by
Foreman Thomas Garrett during the course of this campaign as follows- (1) Larry
Barcheers testified that in late January, Garrett called him back to the shipping
room and began talking to him about wages. Garret said that the plant would
close down if the Union came in He also told Barcheers that if he heard any-
thing about the Union, to come back and tell him about it. (2) David Gentry
testified that Garrett came to his machine and asked him if he had heard any union
talk. When Gentry replied that he had not, Garrett said that he did not see how
the Union was going to help the employees, that he thought the Company was being
as fair as it could be, and that the plant was not yet in full production Garrett
said that if the Union came in , they would have to close the doors. Gentry testified
that in the next month, Garrett talked to him approximately five more times and
that in each of these conversations he told Gentry that the Company could not
operate under union rules and that they would have to close the doors. (3) Albert
Jones testified that Garrett called him to the shipping department and asked him if he
had heard anything about the Union. Jones replied that he had not heard anything
except what Mr. Allin, the foreman in the fitting room, had said Garrett said that
he did not know, but he thought the Company had enough law on its side that it
could close the plant if the Union was voted in. About 2 weeks later, according
to Jones' further testimony, Garrett came to his machine and asked him how
he stood on the Union. Jones replied that he did not know because he was trying
to make 100 percent. (4) Marilyn Hargrove testified that Garrett came to her
machine and asked her if she had heard anything about the Union She replied in the
negative. (5) Harry Ring testified that he was called to the shipping room by
Garrett who told him there that wages were going up and that the Company
was giving the employees a nickel raise 6 weeks earlier than the Company was
required to do under the wage law. Garrett told Ring that he had not heard how
Ring felt about the Union He also said that the Company was not for it. Garrett
then said, "The Federal Government gives you the right to vote in the Union, but
it also gives the Company the right to close the plant. That's what Mr Bransford
has said the Company was going to do in case the Union was voted in." (6) Bobby
Wolaver testified that he was also called back to the shipping room by Garrett who
told him that just because he had signed a union card, he did not have to vote
for the Union and that he wished that Wolaver would reconsider the matter and
think about the situation before he voted for it. (7) Ronald Dodson testified that
he was called back to the shipping room where Garrett asked him if he had heard
anything about the Union. Dodson replied that he heard a little talk about one.
Garrett then asked Dodson if he had signed a union card. Dodson replied that he
had. Garrett told Dodson that the president of the Company said that if the Union
came in down there, they would close the plant down. (8) Junior Flye testified
that Garrett came to his machine and told him that he had heard some talk about the
Union and did not believe it was a good idea. Garrett then said that the plant would
close if the Union came in and the Company would do what they said they would
in his testimony, Garrett admitted talking to each employee of his department
separately in the shipping area immediately adjoining the shipping room. According
to Garrett, he told the employees that they had been having short hours, short days,
and short weeks, and that there had been some bad quality and losses of leather. He
asked for the employees' cooperation in trying to recoup some of these losses. He
asked for a better effort in their work. He stated that he personally was not for
the Union, and did not see how the Union could help the employees at that particular
time. He said that the Company was doing everything it could do to keep the
employees working and to give them as much time as possible. He pointed out that
some work that had been scheduled for the Franklin plant had been moved to the
Chapel Hill plant so that the Chapel Hill employees could have more work.
Garrett further admitted having talked to the employees individually on at least
one other occasion. As before, according to him, he made substantially the same
remarks to each one. He said that "they" had been informed that they had orders
only to the first of the year and that salesmen were doing everything they could to
obtain orders to afford more production. He again asked for their cooperation. He
again mentioned that the Union was trying to organize the employees, and said that
any further burden placed upon the Company might cause it to have to close down.
CUMBERLAND SHOE CORPORATION 1275
He added that he did not want that to happen. He explained that the Federal Gov-
ernment gave them the right to vote the Union into the plant. He referred to a
raise which the Company had given employees some months before the increase was
required by law.' He denied making any statement to employees about the possible
closing of the plant other than the one about the Company's financial condition and
the possible effect of an additional burden upon it.2 He told the employees that the
Company could not continue to lose money and stay in operation. In his further
testimony, Garrett admitted that he interrogated some of the employees about the
Union.
Respondent adduced evidence, which was undenied and credited, that it was
operating at a loss at its Chapel Hill plant. Respondent's evidence also shows that
it is not the Company's practice to manufacture for inventory. Rather, it manu-
factures only upon order. At the time of Garrett's discussions with the employees,
Respondent never had a backlog of orders for more than a few days' work In these
circumstances, Respondent contends that Garrett's remarks simply meant "that the
Union in an effort to secure higher wages might place an additional financial burden
on the Company, and that such an additional burden might make it necessary for
the Company to close the plant." Thus, according to Respondent, Garrett's remarks
were "nothing more than a prediction of the possible effect of action reasonably
expected to be taken by the Union and did not constitute a threat that the Company
in retaliation or in an effort to avoid its statutory obligations would close its plant."
Respondent also contends that Garrett's interrogation of the employees about the
Union "were usually couched in words suggesting that they were used merely as a
means of introducing the Union as a subject of conversation and not as part of a
serious effort by Garrett to obtain information or to coerce employees."
While I do not doubt that Garrett told the employees much of what he testified
about, I also believe and find that he also told the employees essentially those things
which the General Counsel's witnesses testified he told them. Garrett impressed me
as being a very uncomfortable witness on the stand and much of his direct testimony
came in by way of leading questions. It seems to me that considering the manner
in which Garrett conducted these conversations with the employees and the number
of them, there was bound to occur variations from the same general theme that
Garrett claims to have employed with all of them and that these variations are
reflected in the General Counsel's version. Accordingly I find from the foregoing
that Respondent (1) threatened to close the plant if the Union were chosen the
bargaining agent of the employees; (2) instructed an employee to report on the
activities of the Union; (3) offered or implied the offer of a benefit for opposing the
Union; 3 and (4) interrogated the employees about the Union all in violation of
Section 8(a) (1) of the Act.
In addition to the foregoing, employee Melvin Newcomb testified credibly and
without contradiction that Foreman J. D. Chapman came to his machine on
February 21 and asked him what he thought about his job and told him, "If you
think very much of your job you will vote against the Union." By this remark
Respondent further threatened its employees in violation of Section 8(a)(1) of
the Act.
Employee Fred Little testified that Chapman came to him one day late in January
and told him be wanted to talk to Little after work that evening. When Little went
to see him Chapman asked him what he thought about the Union. Little replied that
he did not know. Chapman said that he represented the Company and he had to
talk against the Union and if a man was paying all he could pay and could not pay
any more he would just have to quit.4
The evening after the Company received the Union's representation petition,
according to Little's further testimony, Chapman called him at a filling station where
he was helping and asked if he could come down and talk to Little. Little replied
that he could. A few minutes later Chapman arrived and they talked in Chapman's
'Nevertheless, he also testified on cross-examination that he talked to Ring about a
raise that the "employees were getting."
2In this connection he admitted that he told the employees that they could vote any
way they wanted to and then told them that the Company might be forced to close the
plant "if there were any extra burdens "
I Garrett's comment to Jones about the Company giving a raise of a nickel 6 weeks be-
fore required by law I find to have been such a promise of benefit in the context it was
made regardless of whether it was made in reference to a raise which had taken place or
to one that was about to take place
' Elsewhere Little testified that Chapman had said, "If a man was paying all that he
could pay and couldn't pay any more he would just have to close up."
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
car. Chapman asked how things were looking in the union campaign and how
many cards had been signed.
In his testimony Chapman admitted having initiated two conversations with
Little about the Union and having gone to the filling station purposely to see Little
on the occasion of the last one. He denied , however, interrogating Little about the
Union. As for the remark about quitting , Chapman testified that Little had said
"he was going to have to make more money-or else he would have to quit."
Chapman told him that he did not think Little "could get any more money right
now, and that it was up to him about quitting ." I have no difficulty in finding on
the above testimony that Chapman illegally interrogated Little about the Union in
the two conversations . However, even if I were to credit Little 's testimony in toto,
I would conclude that the other alleged coercive remarks by Chapman were too
equivocal to find that they also violated the Act.
Employee Harry Ring testified that in February , Foreman Garrett told him that
Plant Manager Carlton wanted to talk to him in the office . There Carlton asked
him how he liked his job and said that Ring was doing well in making over 100
percent every day. They talked awhile about some new shoes the Company was
going to start and different things and then Carlton said, "About this union business,
Harry, how do you feel about that?" When Ring said that he had never worked
under organized labor Carlton said that he had and that "some of the people there
were sorry that they got a union after they had it." Carlton also said "that he hated
to see the Union come in up there, and said it works us against each other." He
further said that "it wouldn 't do any good , because the Company already pays the
wage law." In this same conversation , according to Ring's further testimony , Carlton
told him that "he was looking for men with the ability of being foremen and that
someday there might be a job like that for [Ring]."
There was no essential denial of the foregoing in Carlton 's testimony . I credit
Ring. This evidence reveals further illegal interrogation by Respondent of its em-
ployees. In my opinion it also reveals a further promise of benefit or the implication
of a benefit vis-a-vis a promotion for Ring having been made in the context of the
Company's stated opposition to the Union.
Another employee , Carolyn Brown , testified to a conversation with Foreman
Carlton Ellis in late January 1963, as follows:
He just came by the machine one day. We was talking about the union-
he was talking about the union, how it would do, and asked me did I know
what the union really was. He said that if the union came in we would lose all
of our benefits , paid holidays , vacations , and everything.
She had several other conversations with Ellis "mostly about the same thing." On
cross-examination she testified that she really did not known who started the con-
versations but that they were friendly, she speaking for the Union and he against
it. She admitted that Ellis had told her "that if the umon came in the company
and the union would have to negotiate about benefits" and that what benefits the
employees would get "would be those that the company and the union agreed on "
According to Ellis, Brown initiated the conversations the substance of which
he testified as follows:
She came to me and took the time to talk about the union . She said she
didn't know which way she felt about it. She told me that , and one particular
time she came to me and asked me, that she had heard all of their benefits would
be taken away when the union came in. At that time I told her that from the
company's standpoint that when the union came in they would have to nego-
tiate with the union to get their benefits.
On the foregoing testimony I find no violation.
B. The alleged refusal to bargain
On January 18, 1963, the Union wrote Respondent claiming to represent a
majority of Respondent 's production and maintenance employees and requested
recognition as their collective -bargaining agent.5 This letter was received by Re-
spondent on January 22.
5After the close of the hearing a stipulation was offered by the parties as follows: On
January 18, 1963, a representation petition was filed by the Union ( Case No. 26-RC-1888)
naming Respondent as the employer , and describing a collective -bargaining unit which is
the same in substance as that described in the complaint as amended at the hearing. A
copy of this petition was received from the Board by Respondent on January 22, 1963
Thereafter the Company and the Union entered into a consent election which was approved
CUMBERLAND SHOE CORPORATION 1277
On January 23 Respondent wrote the Union as follows:
This will acknowledge your letter of January 18th in which you claim that
a majority of the employees of Cumberland Shoe Corporation at Chapel Hill
have turned over their right and their say-so about their jobs, their wages, and
their working conditions to your Union, and in which you request recognition.
During the past several days I have heard reports of your organizing efforts
in our plant and the methods your Union has been using in an effort to get
people to sign cards. I do not believe that a majority of our employees have
freely and without coercion authorized your Union to represent them, nor do
I believe that they ever will.
I will not accept your word for what the Cumberland Shoe employees want
and certainly will not accept your statement that they have authorized you to
speak for them. In the light of this, I will not meet with you as requested in
your letter nor can we recognize you as bargaining agent.
The number of employees on the payroll as of January 22 with respect to whom
there is no dispute as to their properly being in the unit was 140.6 On this basis 71
would have had to belong to or have designated the Union as their collective-
bargaining agent as of January 22 to have constituted a majority on that date.
As of that date the Union had succeeded in getting 84 employees to sign cards
which by their language authorized the Union to act as their bargaining agent? Two
of those employees, however, had resigned their employment prior to January 22 8
so that the total number of cards to be considered in computing the majority at that
time was 82. Eighty-two, of course, was clearly a majority if all the authorizations
were valid Respondent contends that 17 of the cards were not valid authorizations
and that consequently the Union did not represent a majority of the employees on
January 22. On the basis of Englewood Lumber Company, 130 NLRB 394,8 I
agree with Respondent.
In that case 27 out of 38 employees had signed cards in a campaign which the
Trial Examiner described as having been waged on the theme that an election
would be held. Ten of them testified that when solicited they were told that the
cards were for the purpose of obtaining a Board election. Also, one of the leaders
of the solicitors testified that he told practically everyone he talked to that the cards
would be sent to the Board to obtain a secret election. The majority held that "In
these circumstances, considering only what the employees were told, and not what
may or may not have been their subjective reaction to what they were told, we do
not think it can be reasonably said that the employees, by their act of signing
authorizations, thereby clearly manifested an intention to designate the Union as
their bargaining representative."
by the Regional Director on February 14, 1963 . This agreement contained the same unit
description as that appearing in the amended complaint . The election was set for
March 14 , 1963 On March 5, 1963, the Regional Director approved a request for a
withdrawal of said petition and the parties were so notified by letter on that date. The
stipulation is hereby received as part of the record herein.
8 There were five more employees who performed guard or watchmen duties upon whom
there was a dispute in this connection , the Respondent contending that they were rank-and-
file employees who should have been in the unit. In addition there was a dispute as to
whether or not three other employees were supervisors , Respondent contending they were
not and that they also should have been in the unit In view of my disposition of the
majority question here, there is no need to dispose of the conflicts regarding these eight
employees
The cards stated as follows:
I, an employee of the-----------------------------------------------------
hereby authorize the Boot and Shoe Workers Union , AFL-CIO, through its duly
accredited representatives , to act for me as a collective bargaining agency in all
matters which pertain to rates of pay, wages , hours and all other conditions of em-
ployment , including the signing of an agreement with my employer in conformity
with the National Labor Relations Law and /or States Labor Relations Law.
Name ----------------------------------------------------------------------
Address -------------------------------------------------------------------
Operation ------------------------------------------ Date -----------------
Marilyn Hargrove resigned on January 17 and Mary Alice Lee resigned on January 18.
e Decided February 17, 1961, by a divided panel of the Board , Members Leedom and
Rodgers for the majority and Member Jenkins in dissent.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The situation here is almost identical to that in the Englewood case. Here 17
employees testified that they were told when they were solicited by fellow employees
that the purpose of the cards was to secure an election.iO This testimony is undenied
and credited. It also appears from the undenied and credited testimony of Marilyn
Vaughn that the talk "all over the plant" was about trying to get an election.
As indicated, the Englewood decision was by a divided panel in 1961. Since
that time there has been a change in the composition of the Board. Whether or
not the Board would reach the same result now as it did then in Englewood I do not
know. I do know, however, that the Englewood case is binding on me and that
it is also controlling on the facts herein. Accordingly, I find that the Union did
ro A list of the 17 employees and the substance of their testimony follows:
(1) H G Earonhart testified that his signature was solicited by Junior Watkins who
said that "it was to have an election." He was told that the union needed to have 80 per-
cent of the employees signed up in order to get an election.
(2) Bobby Childers testified that his signature was solicited by another employee who
told him that if they secured the signatures of more than 50 percent of the employees, they
would have an election, and that the purpose of the card was to secure an election.
(3) Patsy Floyd testified that she and Elizabeth Hopkins signed cards at the same time.
Her signature was solicited by Hazel Collins, another employee Hazel Collins told her
that the purpose of the card was to bring the union question to a vote in an election
(4) The testimony of Patsy Floyd shows that the signature of Mary Elizabeth Hopkins
was likewise solicited and secured through the representations of Hazel Collins concerning
the limited effect of the cards
(5) Calvin Cozart testified that his signature was solicited by another employee This
employee told him that the purpose of the card was to secure a vote on the union He ex-
plained that it was required that a certain number of cards be signed before an election
would be held.
(6) Johnny Adams testified that his signature was solicited by another employee who
explained to him that the purpose of the card was to get an election on the union question
(7) Lewis Wilson testified that his signature was solicited by another employee who ex-
plained to him that the purpose of the card was to get an election, and that they must get
"enough cards" in order to have an election.
(8) Janice Taylor testified that her signature was solicited by another employee who
told her that the purpose of signing the card was to get an election. The person soliciting
her signature did not explain to her that an effort would be made to get the union into
the plant without an election.
(9) Cornelia Lee testified that the employee who solicited her signature told her that
they would have to have 90 percent signed up in order to get an election He said that
that was the purpose of the card
(10) Barbara Shaw testified that her card was solicited by an employee who told her
that the purpose of the card was to get an election.
(11) Harold J. Smith testified that his signature was solicited by another employee who
told him that the purpose of the card was to get an election. The other employee did not
tell him that his card would be used for the purpose of attempting to get the union into the
plant without an election.
(12) Carolyn Haynes testified that her signature was solicited by another employee who
told her that the purpose of the card was to get an election. The witness testified further
that the employee soliciting her signature did not tell her that her card would be used for
the purpose of trying to get the union in without an election.
(13) Tommy Blackwell testified that his signature was solicited by another employee
who told him that the purpose of the card was to get an election. He was not told that
his card would be used for the purpose of trying to bring the union into the plant without
an election.
(14) Earl Daughrety testified that his signature , along with a group in the lasting de-
partment that signed at the same time, was solicited by Henry Hargrove, Jr, who said
that the purpose of the card was to get an election. Hargrove did not tell him that his
card would be used in an effort to bring the union into the plant without an election.
(15) James T. Helnick testified that his signature was solicited by Fred Little who told
him that the purpose of the card was to get an election, and did not tell him that there
was any other purpose in the signing of the card.
(16) Henry Hargrove, Sr., testified that he was approached by two or three employees
together. One of them asked him to sign a union card, telling him that the purpose of the
card was to get an election. He did not tell him that the card would be used in an effort
to bring the union in without an election
(17) Adron Phifer testified that his signature was solicited by another employee who
told him that the purpose of the card was to get 4n election
BRICKLAYERS & MASONS INT'L UNION, LOCAL 3, ETC. 1279
not represent a majority of Respondent 's employees when it requested recognition
and that Respondent , when it then refused to recognize the Union , did not violate
Section 8 (a)(5) of the Act. Cf. Gorbea, Perez & Morel(, S. en C., 133 NLRB
362, 369-374.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above, occurring in
connection with the operations of the Respondent described in section 1, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent violated Section 8(a)(1) of the Act, it
will be recommended that Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
In view of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Boot and Shoe Workers' Union , AFL-CIO , is, and at all times material herein
has been , a labor organization within the meaning of Section 2(5) of the Act.
2. Cumberland Shoe Corporation is engaged in and at all times material herein
has engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise of
rights garanteed in Section 7 of the Act , Respondent has engaged in and is engaging
in unfair practices prescribed by Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
5. By refusing to bargain with the Union on and after January 23, 1963, Re-
spondent has not engaged in and is not engaging in unfair labor practices proscribed
by Section 8(a) (5) of the Act.
[Recommended order omitted from publication.]
Bricklayers and Masons International Union, Local No. 3, and
C. M. Fish , Its Agent and Engineered Building Specialties,
Inc.
United Brotherhood of Carpenters and Joiners of America, Local
No. 98, and Tom Severn , Its Agent and Engineered Building
Specialties, Inc. Cases Nos. 19-CD-79 and 19-CD-79-2. Octo-
ber 29, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the Act, follow-
ing charges filed by Engineered Building Specialties, Inc., herein
called the Employer, alleging that Bricklayers and Masons Interna-
tional Union, Local No. 3, and C. M. Fish, its. agent, herein called
Bricklayers, and United Brotherhood of Carpenters and Joiners of
America, Local No. 98, and Tom Severn, its agent, herein called
Carpenters, had each respectively violated: Section 8(b) (4).(D) of the
Act. Pursuant to notice, a. hearing was held on May 21, 1963, at
Spokane, Washington, before Hearing Officer Patrick H. Walker.
144 NLRB No. 119.