Plymouth Shoe Co.

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plymouth Shoe Companyand United Shoe Workers of America, AFL-CIO-CLC, Petitioner. Case 1- RC-10,668 September 25, 1970 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS Pursuant to a Stipulation for Certification upon Consent Election , an election by secret ballot was conducted under the direction and supervision of the Regional Director for Region 1 on September 4, 1969, among the employees in the stipulated unit described below . After the election , the parties were furnished with a tally of ballots which showed that of approximately 451 eligible voters, 370 cast ballots, of which 138 were for the United Shoe Workers of America, AFL-CIO-CLC, the Petitioner, 225 votes for the Plymouth Shoe Company Employees ' Benefit Association, the Intervenor, 5 votes were cast against the participating labor organizations , and 2 ballots were challenged. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the elec- tion. In accordance with the National Labor Relations Board' Rules and Regulations, the Regional Director conducted an investigation, and thereafter, on October 31, 1969, issued and duly served upon the parties his Report on Objections, in which he recommended that the objections be overruled, and that the Interve- nor be certified as the collective-bargaining representa- tive of the employees in the unit found appropriate below. Thereafter, the Petitioner filed exceptions to the Regional Director's Report and the Employer filed a brief in support of the Regional Director's Report. On April 15, 1970, the National Labor Relations Board issued a Decision, Order, and Direction of Second Election' in the above-entitled proceeding in which the Board found merit in certain of the Petition- er's objections and set aside the above election and directed that a second election be held. The following unit, stipulated to by the parties, was found by the Board to constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Pursuant to the provisions of Sec 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. ' 182 NLRB No I All employees engaged in the manufacture of shoes directly, including maintenance crew and mechanics, watchmen, porters, shipping room employees and stock clerks, but excluding all supervisors, office and administrative employees, salesmen and professional employees. By letter, dated May 27, 1970, the Employer moved that the instant petition be dismissed contending, inter alia, that it is no longer engaged in shoe manufac- turing and that the unit in which the Board has directed the second election is no longer in existence. On June 15, 1970, the Board issued a Notice to Show Cause to the parties, attaching a copy of the Employer's letter dated May 27, 1970, as to why the representation petition filed by the Petitioner should not be dismissed because the unit involved no longer exists. In its response the Employer reiterated the position set forth in its letter of May 27, 1970, pointing out: (1) the Plymouth Shoe Company has discontinued the manufacture of man's footwear and for economic reasons went out of business during the fall of 1969; (2) Plymouth Shoe Company changed its name to Middleboro Manufacturing Corporation on or about December 3, 1969, and this Corporation liquidated the assets and terminated the operations of the shoe operation and disposed of all its manufacturing equip- ment; (3) the last production employee was terminated on or about March 13, 1970, and the last maintenance employees were terminated shortly thereafter; (4) on or about December 1969, the Kayser-Roth Corpora- tion, engaged in various enterprises in the apparel industry, organized a new corporation, a wholly- owned subsidiary named Plymouth Shoe Company, Inc., whose sole business is to purchase completely manufactured footwear from European or other sources and to sell and distribute such footwear in the United States; and (5) the Plymouth Shoe Compa- ny, Inc. has no production employees, and other than salesmen and office workers its workforce consists of approximately 15 general warehousemen and one elevator operator. The supervisor of the general ware- house operation had previously worked for another employer and did not supervise any of the production employees of the former Plymouth Shoe Company. In its response the Petitioner did not controvert the factual allegations of the Employer and pointed out that the employees now employed as warehouse- men are the same employees who were formerly included in the unit heretofore found appropriate as "shipping room and stock clerks" and the duties performed by the current complement of warehouse employees is of the same nature as those formerly performed by shipping room employees and stock clerks. In addition, the Petitioner alleged that during 185 NLRB No. 105 PLYMOUTH SHOE COMPANY the time period relevant to the pendency of the instant petition for certification, one aspect of the Employer's business involved the importation of shoes for domes- tic redistribution. The Petitioner argues that the Employer, therefore, has not discontinued its opera- tion and that merely a prior partial function of the Employer now has become its sole function and that a directed second election would be a meaningful exercise of employee rights in accordance with the intent of the National Labor Relations Act. For the reasons discussed below, we find the Petitioner's con- tentions are not sufficient to warrant the direction of a second election. At the time the Petitioner filed its petition on June 24, 1969, we note that it requested an election in a unit of approximately 430 production and mainte- nance employees directly employed by the Plymouth Shoe Company in the manufacture of shoes, including certain specified supportive employees. We also find significant that on the date of the election, September 4, 1969, there were approximately 451 eligible voters. As described above, the unit found appropriate by the Board was for an overall unit of "all employees engaged in the manufacture of shoes directly," includ- ing employees such as "shipping room employees and stock clerks" who were adjunct to the Employer's primary manufacturing operation. It is uncontroverted that the Employer is no longer engaged in the manu- facturing of shoes and no longer employs any employ- ees in any of the numerous job classifications involved in the manufacture of shoes or in the maintenance of shoe manufacturing equipment. The current com- plement of 16 employees is less that 4 percent of the workforce at the time of the petition and the election, and the two job classifications currently being 733 performed are jobs not directly related to shoe manu- facturing and are only a fraction of the original job classifications. Although the Employer appears to have been engaged previously in warehousing and selling of imported shoes for domestic consumption, it was clearly not the major function of its operation and the jobs involved were only incidentally part of the overall unit. Thus, the sole function of the new operation is warehousing and shipping of outside manufacturers' shoes, whereas the operation at' the time the petition was filed and election held was primarily a shoe manufacturing operation. In the circumstances, we are persuaded that the changed nature and character of the current opera- tions, the drastic diminution of the workforce and the radical change in the type and number of job classifications have so altered the scope of the original unit petitioned for and found appropriate by the Board that the original unit is no longer in existence. In our opinion the original petition no longer provides the basis for an election and we feel that no useful purpose will be served by proceeding with a present determination of representatives. Accordingly, we shall dismiss the petition, without prejudice to the Petitioner's filing a new petition.' ORDER It is hereby ordered that the petition herein be, and it hereby is, dismissed. ' We find that the Petitioner's Response to the Notice to Show Cause has not raised material and substantial issues sufficient to warrant holding of a hearing and deny its request for a hearing