Fifth Ave. Shoe Corp.

In the Matter of FIFTH AvE. SHOE CORPORATION and Boor AND SHOE WORKERS' UNION , A. F. OF L. Case No. 1-R 3096.-Decided July 11, 1946 Goulston c6 Storrs, by Mr. Herbert B. Ehrmann, of Boston, Mass., for the A. F. of L. Grant c Angoff, by Mr. Sidney S. Grant, of Boston, Mass., for the C. 1. 0. Stoneman, Welch c6 Chandler, by Mr. Lewis Chandler, of Boston, Mass., for the Company. Mr. Emil C. Farkas, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Boot and Shoe Workers' Union, A. F. of L., herein called the A. F. of L., alleging that a question affecting commerce had arisen concerning the representation of employees of Fifth Ave. Shoe Corporation,' of Lowell, Massachusetts, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before John W. Coddaire, Jr., Trial Examiner. The hearing was held at Boston, Massachusetts, on June 12, 1946. The Company, the A. F. of L., and the United Shoe Workers of America, CIO, herein called the CIO, appeared and par- ticipated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Fifth Ave. Shoe Corporation is a Massachusetts corporation with its plant and office located in Lowell, Massachusetts, where it is engaged ' The name of the Company appears as amended at the hearing. 69 N. L. R. B., No. 46. 400 FIFTH AVE. SHOE CORPORATION 401 in the manufacture of women's shoes. In its operations the Company uses raw materials consisting principally of leather, rubber, cloth, heels, nails and thread. The Company, a subsidiary of A. S. Beck, Inc., which has manufacturing plants and retail stores in Massachusetts and Pennsylvania, has been in operation since the latter part of Feb- ruary 1946. Sales for the present year, based upon the Company's operations during the last 3 months, will total approximately $750,000. Of the raw materials used by the Company, approximately 25 percent is shipped from points outside of the Commonwealth of Massachusetts. Approximately all the manufactured products of the Company are shipped to points outside of the Commonwealth of Massachusetts; of these finished products only approximately 1 percent is returned for ultimate sale in Massachusetts. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Boot and Shoe Workers' Union is a labor organization affiliated with the American Federation of Labor, admitting to membership employees'of the Company. United Shoe Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to member- ship employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On April 11, 1946, the A. F. of L., by letter, notified the Company that it represented a majority of the Company's production employees and requested recognition as their collective bargaining representative. On April 15, 1946, the Company replied, stating that the matter was one which should be discussed with its attorney. Conferences were thereafter held between the A. F. of L. and the attorney for the Com- pany on one or two occasions in the latter part of April. On April 18, 1946, the CIO advised the Company, by letter, that it represented a majority of the Company's workers and notified the company not to enter into a collective bargaining contract with any other union. Subsequently, on May 13, 1946, employees of the Com- pany voted to strike until the Company recognized the CIO as their collective bargaining representative. On the morning of May 14, 1946, in accordance with the strike vote, the employees did not report for work. A conference was held at the Massachusetts State Board of Arbi- tration on May 14, 1946, at which time the Company refused to recog- nize the CIO while the workers were out on strike, and the CIO agreed 701592-47-vol. 69--27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to call a meeting and order the workers back to their jobs. The A. F. of L. filed its petition with the Board on this same date. On May 15, 1946, at a meeting called by the CIO, it ordered the employees back to their jobs, but they refused to return to work. A conference between the Company and the CIO was held the same day, as a result of which they signed a stipulation providing for the Com- pany's recognition of the CIO as collective bargaining representative of the production employees. Before the stipulation was executed, it is clear from the record, the Company had received actual notice of the filing of the A. F. of L.'s petition. Since May 14, 1946, the Company and the CIO have been negotiating for a full collective bar- gaining contract. Arguing that more than 10 days had elapsed between the A. F. of L.'s initial claim to representation and the filing of the petition in this proceeding, the CIO contends that the stipulation of May 15, 1940, constitutes a bar to a current determination of representatives under the doctrine of the General Electric X-Ray case.2 But, unlike the facts in the General Electric X-Ray case, no collective bargaining agreement was executed in this interval. And our precedents are un- mistakably clear that a petition filed before the execution of a collective bargaining contract prevents the agreement from operating as a bar.-' Moreover, we have consistently held that an agreement, such as the stipulation of May 15, 1946, which merely provides for exclusive recognition and contains no substantive provisions governing terms and conditions of employment, is of insufficient stature to preclude an immediate election 4 Accordingly, we find that no bar exists to a current determination of representatives. We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, in accordance with an agreement of the parties, that all production employees of the Company, excluding stitching room machinist, stitching room machinist's assistant, office and clerical em- ployees, shippers and receivers, janitor, maintenance men, foremen, assistant foremen, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2 Matter of General Electric X-Ray Corporation, 67 N. L. R. B. 997. See Matter of Olan Industries, Inc., 67 N. L. It. B. 1043, a companion case to General Electrio X-Ray case and issued the same day. 4 See Matter of Standard Oil Company of Indiana, 56 N. L. R. B. 1101 ; and Matter of Corn Products Refining Company, 52 N. L. It. B. 1324. FIFTH AVE. SHOE CORPORATION V. THE DETERMINATION OF REPRESENTATIVES 403 We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED, that as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Fifth Ave. Shoe Corporation, Lowell, Massachusetts, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the First Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among em- ployees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by Boot and Shoe Workers' Union, A. F. of L., or by United Shoe Workers of America, CIO, for the purposes of collective bargaining, or by neither.