National Labor Relations Board v. Somerset Shoe Co.

• Decision Date: 09 May 1940
• Docket Number: No. 3482.,3482.
• Citation: 111 F.2d 681
• Parties: NATIONAL LABOR RELATIONS BOARD v. SOMERSET SHOE CO.
• Court: U.S. Court of Appeals — First Circuit

111 F.2d 681 (1940)

NATIONAL LABOR RELATIONS BOARD v. SOMERSET SHOE CO.

No. 3482.

Circuit Court of Appeals, First Circuit.

May 9, 1940.

COPYRIGHT MATERIAL OMITTED

Mortimer B. Wolf, of Washington, D. C. (Charles Fahy, Robert B. Watts, Laurence A. Knapp, Samuel Edes, and Mary Lemon Schleifer, all of Washington, D. C., on the brief), for the Board.

John J. Mahon, of Lewiston, Me. (Skelton & Mahon, of Lewiston, Me., on the brief), for Somerset Shoe Co.

Before MAGRUDER and MAHONEY, Circuit Judges, and PETERS, District Judge.

MAGRUDER, Circuit Judge.

The National Labor Relations Board petitions for enforcement of an order against Somerset Shoe Company dated May 17, 1939.¹ 49 Stat. 454 § 10(e), 29 U.S.C.A. § 160(e). Respondent is a Massachusetts corporation engaged in the manufacture and sale of women's shoes, having a plant and head office at Auburn, Maine, and two plants at Skowhegan, Maine, where the alleged unfair labor practices occurred. Without doubt, respondent is subject to the National Labor Relations Act. 49 Stat. 449, 29 U.S.C.A. § 151 et seq. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, and companion cases; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014. This is conceded by counsel, and the jurisdictional facts need not be stated.

Upon a charge duly filed by the United Shoe Workers of America, hereinafter called United, a labor organization affiliated with the C. I. O., the Board issued its original complaint against respondent on August 13, 1937. The complaint alleged in substance that the production departments at the two Skowhegan plants together constitute an appropriate collective bargaining unit, and that since March 22, 1937, United has been the exclusive representative of all the employees in said unit by virtue of designation by a majority of the employees therein; notwithstanding which, on March 22, 1937, and at all times thereafter, respondent has refused to bargain collectively with United as such representative, in violation of subdivisions (1) and (5) of Section 8 of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 5). By amendment made at the hearing, the Board complained of an additional unfair labor practice, in that respondent "in its Skowhegan Plants on or about March 24, 1937, although it had plenty of business at said time, did lock out its employees * * * in order to coerce, discourage and prevent said employees from designating the United * * * as their representative for collective bargaining", in violation of subdivisions (1) and (3) of Section 8 of the Act. The Board has found that respondent committed the unfair labor practices, as charged.

Labor unrest manifested itself among the wholly unorganized employees at the Skowhegan plants early in January, 1937. Dissatisfaction with wage rates led to two or three brief strikes, which were settled, temporarily, with the assistance of federal and state conciliators. After one of these settlements was negotiated, January 20, 1937, the men decided to organize, and formed themselves into the Skowhegan Shoe Workers' Association, an unaffiliated organization. A majority of the production employees in the two plants joined. About February 1 individual wage adjustments were made, but the men were not satisfied with the way the management had carried out the agreement. Mr. Bowler, the general superintendent of the plants at Auburn and Skowhegan, had a conference with officers of the Association, in the presence of conciliators, and certain points of agreement were arrived at. This was on or about March 1. On the same night, the agreement was read to a mass meeting of the Association, but was not favorably received. A motion to call in a C. I. O. organizer was unanimously carried. Accordingly a telegram in the name of the Skowhegan Shoe Workers' Association was sent on March 3 to organizers for United then at Lewiston, Maine, requesting them to attend a mass meeting of the Association to be held the following day. This is not the picture frequently painted, of a happy family disrupted by outside agitators, but on the contrary, an unhappy family calling in organizers of a national labor union to help them.

At the mass meeting on March 4 the employees were addressed by one Nolan, a United organizer. Application cards for membership in United were distributed and 89 signatures were secured. These cards read: "I, the undersigned, hereby apply for membership in the United Shoe Workers of America of the C. I. O. and authorize its officers to represent me in negotiations with my employer for the purpose of collective bargaining on wages, hours, grievances, and conditions of employment." During the following week more application cards for membership in United were passed around the shop by dues collectors for the old Skowhegan Shoe Workers' Association and additional signatures were obtained. Still more applications were signed at mass meetings on March 12 and March 18. By March 18, 362 workers had signed up, a clear majority of the 485 production employees in the two Skowhegan plants according to respondent's payroll of March 10. It was testified that these mass meetings were called by the Skowhegan Shoe Workers' Association, were limited to employees of respondent, and that persons attending had to show their Association membership cards. It was further testified that at the meeting on March 18, at which about 300 persons were present, it was moved and unanimously carried that Messrs. Nolan and Lawless, organizers for United, should go to the plant and request the management to recognize United as the bargaining representative. The next day this committee was unable to see Mr. Thomas O'Byrne, the president of respondent, for he was not at the Skowhegan plant that day. Accordingly, on March 22, 1937, United mailed a letter from its Boston headquarters, addressed to Mr. O'Byrne, stating that United "has now signed application cards for membership in our union of a majority of the shoe workers employed in the Somerset Shoe factories — Nos. 1 and 2", and requesting a conference to discuss a union agreement at the earliest possible date. The Board states that this request to bargain was received by the respondent on March 29, 1937. What apparently happened was that when the letter arrived at Skowhegan the plants there had been closed down and the letter was forwarded to the head office of respondent at Auburn. Respondent never made any answer, never sought to verify the claim that a majority of its employees had designated United as bargaining agent.

Meanwhile, on March 5 Mr. Bowler, the general superintendent, started to curtail production at the Skowhegan plants. He stopped putting new work into the cutting room where the first work in the production of shoes is performed. As work in process moved through the factory various groups of employees, beginning with the cutters, were laid off as their work was completed. Finally when all the work in process was finished both plants shut down production on March 24 for an indefinite period. The employees were not discharged. Mr. Bowler himself testified that "We didn't regard them as discharged." Thereafter the local paper published the statement that the plants would remain closed until "local shoe workers agree to abandon outside affiliations". The news article attributed this statement of policy to "an official of the Somerset Shoe factory". The official was Mr. Bowler.²

On April 12 factory No. 1 was reopened for a few days for the purpose of making samples, preparatory to opening up in full production. About sixteen workers returned for this purpose. On April 15 the United members decided they would consider themselves on strike because of the respondent's refusal to bargain and started to picket plant No. 1.

About this time a "citizens' committee" made its appearance. The committee consulted with the management and obtained a list of the employees. Mr. Bowler testified that "We had a vague idea of the general campaign that was under way", that is, a "back to work" movement. The committee mailed to each employee a printed circular and a ballot. The circular emphasized the loss which the town stood to suffer if its shoe factories should remain closed. The committee stated that "before it can proceed intelligently it is necessary that it know positively the attitude of the shoe workers of Skowhegan". Accordingly, the ballot, which was secret, asked three questions, the first of which was "Do you favor a local union or a union with national affiliations?" The other two questions asked the employee to express himself on whether efforts should be made to persuade the Somerset Shoe Company to reopen. There is no evidence as to the result of this ballot. When the citizens' committee received a substantial number of applications from employees who desired to return to work they gave a list of applicants to the management, which on May 10 called a meeting of employees at which Mr. O'Byrne stated that if enough people manifested their willingness to work, the plant was ready to be reopened. There was a practically unanimous showing of hands from the 150 employees present. The plant was reopened on the next day, May 11, and men who applied were taken back without discrimination.

Upon the reopening, application blanks were circulated throughout the plant for membership in a new unaffiliated labor organization, the Pine Tree Shoe Workers' Association. The charter members of this association were the 16 employees who had been working during the middle of April making samples. On July 23, 1937, the Pine Tree Shoe Workers' Association addressed a letter to the "Somerset Shoe Company, Auburn, Maine", asking to be recognized as the exclusive representative of all the employees of the company at Skowhegan, enclosing a typewritten list of members. This letter was not mailed, but the...