J. Edwards & Co.

In the Matter of J. EDWARDS & Co. and UNITED SHOE WORKERS OF AMERICA, LOCAL 127, C. I. O. Case No. R-1636.-Decided February 6, 1940 Shoe Manufacturing Industry-Investiigation, of Representatives: controversy concerning representation of employees : rival organizations-Contract : closed- shop, no bar to determination of representatives where doubt exists as to majority status of contracting union and where notice of representation claim is given to company by rival union prior to date of execution of contract-Unit Appropriate for Collective Bargaining: all employees , excluding superintendents, foremen, final inspectors , office help, salesmen , watchmen, shippers, main- tenance men, and employees in finished-shoe stockroom ; stipulation as to-Election Ordered Mr. Joseph F. Castiello, for the Board. Mr. Philip Dorfman, of Philadelphia, Pa., for the United. Mr. Benjamin R. Simons, of Philadelphia, Pa., for the Boot and Shoe Workers. Mr. Owen B. Rhoads, of Philadelphia, Pa., for the Company. Miss Edna Loeb, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 17, 1939, United Shoe Workers of America, Local 127, herein called the United, filed With the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) a petition alleging .that a question affecting commerce had arisen concerning the repre- sentation of employees of J. Edwards & Co., Philadelphia, Pennsyl- vania, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 6, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropri- ate hearing upon due notice. 20 N. L. R. B., No. 20. 244 J. EDWARDS & C'OMPANY 245 On November 10, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the United. Pursuant to the notice, a hearing was held on November 20, 21, 22, and 24, 1939, at .Philadelphia, Pennsylvania, before Ed- ward G. Smith, the Trial Examiner duly designated by the Board. The Board, the Company, the United, and Boot and Shoe Workers' Union, Local 141, affiliated With the American Federation of Labor, herein called the Boot and Shoe Workers, a labor organization claiming to represent the employees directly affected by the investigation,' Were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. The Board has reviewed the rulings made by the Trial Examiner during the course of the hearing on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. TIIE BUSINESS OF TFIE COMPANY The Company is a Pennsylvania corporation engaged in the manu- facture of children's shoes. Its plant and office are located in Phila- delphia, Pennsylvania. The principal raw materials used by the Company in its manufacturing operations are leather and findings, approximately 70 per cent of which were secured by the Company in 1938 from points outside Pennsylvania. In 1938 more than 86 per cent of the Company's manufactured products, valued at $1,214,361, were shipped to points outside Pennsylvania. 11. THE ORGANIZATIONS INVOLVED United, Shoe Workers of America, Local 127, is a labor organiza- tion affiliated with the Congress of Industrial Organization' S.2 It. admits to membership employees of the Company. Boot and Shoe Workers' Union, Local 141, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On June 14, 1937, the Regional Director conducted a consent elec- tion in an agreed unit of the employees of the Company to determine 'Although the Boot and Shoe Workers was not served with notice of the hearing, it appeared , waived formal notice, and participated therein , as noted above. 21ncorrectly designated Committee for Industrial Organizations in the record. 283031-41-vol. 20-17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether or not the employees desired to be represented by the United. The United received a majority of the votes cast. Thereafter, the United and the Company entered into a closed-shop agreement effec- tive for a term of 1 year. On June 1, 1938, they executed a new closed-shop agreement. On March 29, 1939, pursuant to the contract, the United wrote a letter to the Company stating that it desired a conference on April 1 regarding changes in the contract. On the same day the Boot and Shoe Workers wrote a letter to the Company claiming to represent a majority of its employees and asking fora bargaining contract. The record indicates that this was the first time the Boot and Shoe Workers had ever approached the Company regarding bargaining rights. Both of these letters were received by the Company on March 30. On that date A. Zoelly, president of the Company, re- plied to the Boot and Shoe Workers, stating that because of the existing contract with the United, the Company could not negotiate with the Boot and Shoe Workers unless it presented proof that it represented a majority of the employees. On March 31, Zoelly, as the contract permitted, wrote to the United giving notice of the Company's intention to terminate the contract on May 1. He in- formed the United that he was unable to attend a conference on April 1 and that he preferred the conference to be postponed until the early part of the week of April 3. The Boot and Shoe Workers sent a letter to the Company on March 31, claiming that it had pledge cards from a majority of the employees and demanding a conference to demonstrate this fact. Subsequently, by means of telephone con- versations and a further exchange of letters, the Company arranged to meet with the Boot and Shoe Workers on April 3 and with the United on April 4. At no time during this period did the Company advise the United of the rival claim of the Boot and Shoe Workers. On April '3 representatives and several employee members of the Boot and Shoe Workers met with Zoelly, Arnold Bartschi, company superintendent, Roland Morris, head of the-pay-roll department, and Owen B. Rhoads, counsel for the Company. The union submitted to the Company approximately 349 signed pledge cards. Each card. set forth that the signer no longer desired to be represented by the United or to have United clues deducted from his wages, and that he desired to be represented by the Boot and Shoe Workers. Super- intendent Bartschi testified that these cards were checked against the Company's pay roll, which then contained the names of approxi- niately 480 employees, and that the signatures were compared with those on the weekly pay-roll slips of all the employees. He testified further that this comparison was made by Morris with the assistance of the other company representatives present, counsel for the Boot and Shoe Workers, and the employees in attendance. According J. EDWARDS & COMPANY 247 to Bartschi's testimony, the check was completed in from 1 to 2 hours and revealed that the Boot and Shoe Workers had cards from approximately 342 of the 480 employees. The Boot and Shoe Work- ers then asked the Company to execute a proposed bargaining agree- ment. This instrument contained no clause recognizing the union as exclusive bargaining agent of the employees but provided for a closed shop. It also provided that it was to be effective from May 1, 1939, to May 1. 1942. Bartschi testified that he and other company representatives examined the agreement at the same conference, at first refused to sign it because of the existing contract with the United, but finally executed it forthwith under threat of strike by the Boot and Shoe Workers.3 The Boot and Shoe Workers pledge cards, along with the pay roll and pay-roll slips, have not been offered in evidence, nor are the dates of the signing of the cards revealed in the record. On April 4 the United met with the Company and requested nego- tiations for a new contract. A company representative then apprised. the United of the majority claim of the Boot and Shoe Workers and of the 3-year contract which had just been executed, and the confer- ence terminated.4 The Company executed the agreement with the Boot and Shoe Workers at a time when it had notice that the United was asserting a rival claim to exclusive representation. Moreover, in view of the facts that the pledge cards relied upon by the'Boot and Shoe Work' ers are not in evidence, the dates of their alleged signing are not established, and the United had a; valid closed-shop contract in effect on the date of the execution of the contract with the Boot and Shoe Workers, it cannot be said that majority designation of the Boot and Shoe Workers at such time has been clearly proved. Under these circumstances the Boot and Shoe Workers' agreement does not constitute a bar to the instant proceeding.5 We find that a question has arisen concerning the representation of employees of the Company. There is some indication in the record that the contract was not formally executed until the morning of April 4. before the Company's conference with the United. For the purposes of this Decision we shall regard it as having been executed on April 3, in accord- ance with Bartscbi 's testimony. 4 We do not find it necessary to discuss the evidence relied upon by the United to show that the Company executed the contract with the Boot and Shoe Workers and committed other acts to forestall the United . Charges filed by the United were dismissed by the Board . During their pendency the Boot and Shoe Workers offered to submit to a consent election provided that it was held immediately and the victorious union would operate under the contract already entered into by the Boot and Shoe Workers. The United refused to accept these terms. Obviously , such refusal does not impugn its good faith in now seeking a Board-directed election. fi Hatter of Colonie Fibre Company , Inc. and Cohoes Knit Goods Workers Union, etc, 9 N. L. R . B. 658 ; Matter of Malone Bronze Powder Works, Inc., etc. and Aluminum and Bronze Powder Workers Union , etc., 19 N. L. R. B. 449 , and cases cited. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT At the hearing all the parties stipulated that all the employees of the- Company, excluding 'superintendents, foremen, final inspectors, office help, salesmen, watchmen, shippers, maintenance men, and em- ployees in the finished-shoe stockroom, constitute a unit appropriate for the purposes of collective bargaining. We find no reason to alter the agreed unit. We find that all the employees of the Company, excluding super- intendents, foremen, final inspectors, office help, salesmen, watchmen, shippers, maintenance men, and employees in the finished-shoe stock- room, constitute a unit appropriate for the purposes of collective bar- gaining, and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETER ,MI ATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. All em- ployees within the appropriate unit who are employed during the pay-roll period immediately preceding the date of the Direction of Election, including employees who do not work during such pay-roll period because they may be ill, on vacation, or temporarily laid off, but excluding employees who will have since quit or been discharged for'cause; shnll'be"eligible to vote in the election. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of the Company, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company, excluding superintendents, fore- men, final inspectors, office help, salesmen, watchmen, shippers, mainte- J. EDWARDS S: COMPANY 249 Hance men, and employees in the finished-shoe stockroom, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations. Act. 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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargain- ing with J. Edwards & Co., Philadelphia, Pennsylvania, 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 Of Election under the direction and supervision of the Regional Director for the Fourth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all the employees of the Company, excluding superintendents, foremen, final inspectors, office help, sales- men, watchmen, shippers, maintenance men, and employees in the finished-shoe stockroom, who are employed during the pay-roll period immediately preceding the date of this Direction of Election, in- cluding employees who do not work during such pay-roll period because they may be ill, on vacation, or-temporarily :laid off, abut excluding employees who will have since quit or been discharged for cause, ..to- determine whether .they desire to be represented by United Shoe Workers of America, Local 127, by Boot.,.and,Shoe Workers' Union, Local 141, or by neither, for the purposes of collective bar- gaining.