Fred W. Mears Heel Co.

In the Matter of FRED W. MEARS HREL COMPANY, EMPLOYER and UNITED SHOE WORKERS OF AMERICA, CIO, PETITIONER Case No. 14-R-1428.-Decided September 24, 1046 Fordyce, White , Mayne, Williams, and Hartman, by Messrs. N. W. Hartman and James Wear, Jr., both of St. Louis, Mo., ' for the Company. Messrs . Dave Wilson and Herbert Long, of St. Louis , Mo., for the Petitioner. Mr. Warren H. Leland, of counsel to the Board. DECISION AND DIRECTION Upon a petition duly filed, the National Labor Relations Board on June 3, 1946, conducted a prehea,ring election among employees of the Employer in the alleged appropriate unit to determine whether or not they desired to be represented by the Petitioner for the purposes of collective bargaining. At the close of the election a Tally of Ballots was furnished the parties. The Tally of Ballots shows the following: Approximate number of eligible voters-------- -------------- 123 Void ballots ------------------------------------------------ 0 Votes cast for Petitioner------------------------------------ 52 Votes cast against Petitioner -------------------------------- 45 Valid votes counted ---------------------------------------- 97 Challenged ballots-------------- --- -------------- ---------------------------- 7 Valid votes counted plus valid ballots ------------------------ 104 Thereafter, hearing on the case was held at St. Louis, Missouri, before Charles K. Hackler, hearing officer. At the hearing the Em- ployer moved to dismiss the proceeding on the ground that prehearutg elections are improper and illegal. For reasons stated in the Squibb case,' the motion is denied.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 'Matter of E. R. Squibb S Sons, 67 N. L. R B 557 2 The Employer also requested dismissal of the proceeding on the ground that the Peti- tioner failed to prove the appropriateness of the comprehensive unit its seeks . Inasmuch as such units are virtually always found appropriate when desired by the sole union con- cerned , we find no merit'in this request. 71 N. L. R. B., No. 6. 18 FRED W. MEARS HEEL COMPANY 19 Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF TFIE EMPLOYER Fred W. Mears Heel Company, a Massachusetts corporation with its principal office and place of business at Lawrence, Massachusetts, operates factories, warehouses, and branch offices in various States in the United States. We are concerned herein only with the Employer's St. Louis, Missouri, plant, which is engaged in the manufacture of wood heels. During the year 1945, the Employer purchased for this plant raw materials, consisting chiefly of lumber, valued in excess of $100,000, of which approximately 75 percent was received from points outside the State of Missouri. During the same period the Employer manufactured at this plant wood heels valued in excess of $100,000, of which approximately 25 percent was shipped to points outside the State of Missouri. The Employer admits and we find that it is engaged in commmerce within the meaning of the National Labor Relations Act. 11. TIIE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. III. TIIE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Petitioner seeks a comprehensive unit comprised of all em- ployees at the Employer's St. Louis plant, excluding office, clerical and supervisory employees. The Employer takes no affirmative posi- tion on the appropriate unit, but it disagrees with the Petitioner with respect to the following employees, whom the Petitioner would ex- clude as supervisory : Givens: Evidence adduced at the hearing discloses that Givens is a night foreman in charge of the second shift, directing the work of approximately 35 individuals throughout the entire plant. Givens 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is the only representative of management present during the hours of this shift. All matters relating to production and discipline are handled by him, and he renders a report to the plant superintendent the following day. We are convinced that Givens is a supervisory employee within the meaning of our customary definition . We shall accordingly exclude him from the unit. Kaufman : This employee is a working foreman in the finishing sec- tion of the Conventional Heels Department . He ensures that the machines are in proper condition to operate, and he transmits pro- duction orders which he receives from the plant superintendent to employees in the finishing section. He works approximately three hours a clay at the machines and the remainder of his time is con- sumed in observing and checking the finishing line . While Kaufman is expected to report infractions -of rules to the superintendent, there is absolutely no evidence to indicate that he may effectively recom- mend discharge of employees in the finishing section. Moreover, both the plant superintendent and the department foreman are present during the time that Kaufman is at work. We are satisfied, therefore, that Kaufman is not a supervisory employee within the meaning of our customary definition.3 We shall, accordingly, include him in the unit. llfilster: This employee is an automatic turner and sample maker whose work is substantially the same as other turners . He occasionally substitutes for the foreman of the Conventional Heel and lVedges Department during the litter's absence . However, such substitutions are infrequent . We do not believe that these sporadic substitutions warrant excluding him from the unit as a supervisory employee. We shall, accordingly , include him. Schneider: This employee is a working foreman among approxi- mately 10 wedge blockers. While there is evidence that , in December 1945, he laid off an employee , it is clear from the record that his super- visory authority was withdrawn in Jann.ary 1946 . We are convinced that Schneider is not now a supervisory employee within the meaning of our customary definition . We shall, accordingly , include him in the unit. Stross : This employee is an hourly paid maintenance man who maintains production machines and other plant equipment . Although he occasionally has a helper , there is no evidence that he possesses supervisory authority as such. We shall , accordingly. include him in the unit. D'Anth,ony: This employee is a working leader in the shipping department. There is no evidence that he possesses supervisory au- 3 See Matter of Marine Bastin Company , 65 N L R B. 970, see also Matter of Interna- tional Harvester Company, 68 N. L. R B 383. FRED W. MEARS HEEL COMPANY 21 thority within the meaning of our customary definition. We shall, accordingly, include him in the unit. We find that all employees of the Employer at its St. Louis, Mis- souri, pla.nt,4 excluding office and clerical employees, and all super- visory employees with authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees, or effectively recommend such action,,' constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. TIIE DETERMINATION OF REPRESENTATIVES The prehearing election was held among the employees on June 3, 1946, the pay-roll period ending April 13,1946, having governed voting eligibility. The election was conducted with the use of the customary type bal- lot utilized in cases where only one union is involved. The ballot contained language inquiring whether or not the voter desired to be represented by the Petitioner. Under the query there were the usual two squares, of which one was marked "YES", and the other "NO", with instructions to the voter to place an "X" in the square of his choice. At the counting of ballots the Board agent counted as a valid vote for the Petitioner a ballot showing no marking except a pencil mark made through the word "NO". The Employer .objects to the counting of this ballot as a valid vote for the Petitioner. Inasmuch as the ballot, at the very least, does not clearly reflect the intention of the voter, we sustain the Employer's objection and declare the ballot to be void. The Petitioner challenged the ballots of Givens, Kaufman, Milster, Schneider, Stross, and,D'Anthony on the ground that they are super- visory employees. In accordance with our determinations in Section IV, supra, we sustain the challenge to Givens' ballot, and overrule the challenges to the ballots cast by Kaufman, Milster, Schneider, Stross, and D'Anthony. The remaining challenged ballot was cast by one Harry Neal. Ilis ballot was challenged by the Employer on the ground that he was not an eligible voter. The record reveals that Neal left his job on April 9, 1946, apparently to enlist in the Navy. A witness for the Petitioner testified at the hearing that Neal was rejected by the Navy, was rein- stated by the Employer on April 29, 1946, and shortly thereafter again left. his work, this time to join the Army. Neal, it seems, appeared at • 4 Including Kaufman, nlilster, Schneider, Stress, and D'Anthony. 5 Among these are Givens ; and also including Jenkins and Belsha, whom the parties agree to exclude as supervisory. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the polls and voted while a member of the Army. Despite the fact that the Employer did not list his name on the pay roll for the period ending April 13, 1946, it is clear that Neal was employed by the Employer during this determinative period, which commenced on April 7, 1946. Although Neal left his work on April 9, 1946, he was reinstated before the election, and, as a member of the armed forces on the day of the election, he was clearly an eligible voters Accordingly, we overrule the challenge to Neal's ballot. We shall direct that the ballots of Kaufman, Milster, Schneider, Stross, D'Anthony, and Neal be opened and counted. DIRECTION 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 Section 203.54, of National Labor Relations Board Rules and Regulations-Series 4, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Fred W. Mears Company, St. Louis, Missouri, the Regional Director of the Fourteenth Region shall, pursuant to said Rules and Regulations, within ten (10) days from the date of this Direction, open and count the challenged ballots of Kaufman, Milster, Schneider, Stross, D'Anthony, and Neal, and shall thereafter prepare and cause to be served uponothe parties a Supplemental Tally of Ballots, including therein the count of these challenged ballots. MR. JAMES J. REY*IOLDS, JR., dissenting in part, concurring in part : It appears that Kaufman acts as an overseer of approximately 25 employees in the finishing section of the Conventional Heel Depart- ment. Although he performs manual labor about 3 hours each day, the balance of his time is devoted to observing and checking the work 6 The Notice of Election contained the following : "Eligibility Rules "Employees described under VOTING UNIT in this Notice of Election who did not work during the designated pay-roll period because they were ill or on vacation or temporarily laid off and employees in the Armed Forces of the United States who pre- sent themselves in person at the polls, shall be eligible to vote. "Voting Unit _ "Those eligible to vote are all employees of the Company at its St Louis, Missouri, plant, who were employed during the pay-roll period ending April 13, 1946, but ex- eluding office and clerical employees, foremen, and supervisors with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action." FRED W. MEARS HEEL COMPANY 23 of other employees in the section. Moreover, the record clearly shows that it is his duty to report rule infractions to the plant superintendent. Under these circumstances, and particularly by reason of his moni- torial duties which are exercised over employees in the unit voting in this election, I am of the opinion that a desired community of interests is lacking and the challenge to Kaufman's ballot should be sustained. Since in all other respects I concur with my colleagues, I would now certify the Petitioner.