The Schiff Co.

In the Matter of THE SCHIFF COMPANY and WAREHOUSE & DISTP.IBU- TION WORKERS UNION Case No. R-3058.-Decided October 31, 1941 Jurisdiction : retail shoe industry. Investigation and Certification of Representatives : existence of question : re- fusal to accord union recognition ; temporary employees held eligible. to vote, despite Company's contention that they are ineligible, where business of Com- pany was highly seasonal and average temporary employee worked from 4 to 6 months ; election necessary. Unit Appropriate for Collective Bargaining : all employees in the warehouse of the Company excluding supervisors, foremen, assistant foremen, leadmen, cleri- cal workers, engineers, personnel managers, and truck drivers ; janitor ex- cluded notwithstanding desire of union for inclusion where employee spends 90 per cent of his time outside and no part of salary is charged to ware- house; employees in return, and hosiery, and findings departments included notwithstanding desire of union for exclusion since their work is not skilled, and two thirds of salary is charged to warehouse ; department heads included notwithstanding desire of union for their exclusion where they have no right to hire or discharge or to recommend the hire or discharge of employees and 90 per cent of their time is spent performing manual duties. Hedges, Hoover c0' Tingley, by Mr. H. R. Tingley and Mr. George R. Hedges, Jr., of Columbus, Ohio, for the Company. Mr. Edward S. Crudele, of Cleveland, Ohio, for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE • On August 7, 1941, Warehouse & Distribution Workers Union, herein called the Union, filed with, the Regional Director for the Ninth Region (Cincinnati, Ohio) a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of The Schiff Company, Columbus, Ohio, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 10, 1941, the Na- 36 N. L. R. B., No. 120. 575 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Labor Relations Board, herein called the Board, acting pursu- ant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to con- duct it and to provide for an appropriate hearing upon due notice. On September 15, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to notice, a hearing was held on September 24, 1941, at Columbus, Ohio, before Harold Weston, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the Union 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. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On October 7 and 8, 1941, respectively, the Company and the Union filed briefs which the Board has considered. On October 20, 1941, the Union filed a reply brief which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Schiff Company is an Ohio corporation with its principal office and place of business at Columbus, Ohio. The Company operates retail shoe stores in 31 states of the United States. In the course of its business, the Company operates two warehouses at Columbus, Ohio, with which we are here concerned. During 1940 the Company's retail sales amounted to approximately $14,000,000. Fifty-two per cent of the merchandise sold by the Company comes into and is delivered through the warehouses at Columbus. Of the total merchandise han- dled at the Columbus warehouses approximately 80 per cent is shipped to Columbus from points outside the State of Ohio and over 60 per cent is shipped by the Company from Columbus to points outside the State of Ohio. II. THE ORGANIZATION INVOLVED Warehouse & Distribution Workers Union is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees at the Columbus warehouses of the Company. THE SCHIFF COMPANY III. THE QUESTION CONCERNING REPRESENTATION 577 On about August 4, 1941,. the Union requested the Company .to recognize it as exclusive representative of certain employees at the Columbus warehouses. The Company denied this request. A state= ment of a Field Examiner of the Board, introduced in evidence at the hearing, shows that the. Union represents a substantial number of employees in the alleged appropriate unit.' We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, appearing 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 The Union urges that all employees at the two Columbus ware-- houses of the Company, including Gilbert Gray, but excluding execu- tives, supervisors, foremen, assistant foremen, department heads, lead men, clerical workers, employees in the return department, engineers, personnel managers, employees in the hosiery and findings depart- ments, and truck drivers, constitute an appropriate unit. . The only. controversy with respect to the unit concerns the department heads, employees in the return department, and employees in the hosiery: and findings department. The Company desires that all such employees be included in the unit. The Company employs 7_ persons in its return department. The: Union asks that these employees be excluded from the unit .because they are.skilled and their work is largely of a clerical nature. The.; Company contends that such employees are warehousemen performing, duties similar to the duties performed by employees admittedly in the: unit. These employees inspect damaged shoes and'new shoes returned. from retail stores of the Company. They make out return slips show-: ing the quantity, stock number, and reason for return of the shoes and actually handle the cartons of shoes. One-third of the salaries of, 1 The Field Examiner reported that the Union presented 39 membership application cards bearing the names of persons on the August 9, 1941, pay roll of the Company. There are approximately 80 employees on the pay roll. 433118-42-vol. 36-38 578 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD these employees is charged to the purchasing department of the Com- pany and two-thirds to the warehouse. It does not appear that their work is skilled but that about two months' training is necessary before they become proficient in knowing where to place the various returned items in the warehouse. Under the circumstances, we find that em- ployees in the return department should be included in the unit. The Company employs two persons in its hosiery and findings departments. The Union urges that they be excluded from the unit because they are skilled employees. The Company urges that they be included because they are ordinary warehouse employees. The facts with respect to these employees are similar to those set out in our discussion of the return-department employees above. Under the circumstances, we find that employees in the hosiery and findings departments should be included in the unit. The Company employs 7 persons alleged to be department' heads. The Union asks that they be excluded from the unit on the ground that they are supervisory employees. The Company denies that the duties of these persons are supervisory in nature and. ask that they' be 'included in the unit. These employees have no right to hire or dis- charge or to recommend the hire or discharge of employees and their duties consist of seeing that merchandise is brought to their respective stockrooms and put away properly. They receive about $3 more per week than the other employees, but it appears that they receive higher salaries only because they have been with the Company for a longer period of time than the other employees. It appears from the record that they spend about 90 per cent of their time actually performing manual duties. We find that the department heads should be included in the unit. The Union urges that one Gilbert Gray, a janitor, be included in the unit and the Company that he be excluded from the unit. 'The Company employs two janitors at its Fourth Street warehouse, which also includes the offices of the Company. The parties are in agreement that one of the janitors be excluded. It appears that Gray spendh about 10 per cent of his time performing janitorial duties in the ware- house and the rest of his time cleaning the offices of the Company. No part of his salary is charged by the Company to the warehouse. His work is substantially the same as that of the janitor whom the parties agreed to exclude. We find that Gilbert Gray should be excluded from the unit. The Union urges that a truck driver employed by the Company be excluded from the unit. The Company took no position with respect to this employee. It appears that this employee is eligible for member- ship in another labor organization. We find that the truck driver. should be excluded from the unit. THE SCHIFF COMPANY.- , - . , 579 We find that all employees at the Columbus warehouses of the Com- pany, including employees in the return, hosiery, and findings depart- ments and ' department heads, but excluding executives, supervisors, foremen, assistant foremen, leadmen, clerical employees, engineers, personnel managers, truck drivers, and Gilbert Gray, constitute a unit appropriate for the purpose of collective bargaining 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 will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by the holding of an election by secret ballot. The Company and the Union are in dispute as to the status of ap- proximately 30 temporary employees. The Union asks that such em- ployees be deemed eligible to vote and the Company that they be ruled ineligible to vote. The Company's business is highly seasonal and its seasons are from January 1 of each year until the end of March and from July 1 to the end of September. During these two periods the Company carries approximately, 30 persons more on its pay roll than it does during other months of the year. It appears that.the average temporary employee works from four to six months at a time. At the time these employees are hired they are told by the Company that the jobs are temporary and such employees are not eligible to group life and hospitalization-insurance plans carried by the Company for the benefit of its regular employees. Under all the circumstances, we find that all such employees who might be on the pay roll of the Company designated below for the purpose of determining eligibility to vote in the election shall be eligible to vote. The Union urges that the pay roll of September 7, 1941, be used for determining eligibility to -vote. The Company took no position with respect to the pay-roll date. No reason appears why we should not, in accordance with our usual practice, designate the pay roll imme- diately preceding the date of the Direction of Election as the pay roll to determine eligibility to vote. We shall direct therefore that em- ployees of the Company eligible to vote in the election shall be those in the appropriate unit who were employed during the pay-roll.period immediately preceding the date of the Direction of Election herein, subject to such limitations and additions as are- set forth in the Direction. Upon the basis of the above findings of fact -and upon the entire record in the case, the Board makes the following : 580 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of The Schiff Company, Columbus, Ohio, within the meaning of Section 9 (c) and Section 2 (6).and (7) of the National Labor Relations Act. 2. All employees at the Columbus warehouses of the Company in eluding employees in the return, hosiery, and findings departments and department heads, but excluding supervisors, foremen, assistant fore- men, leadmen, clerical workers, engineers, personnel managers, truck drivers, and Gilbert Gray, constitute a unit appropriate for the pur- poses 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 Relations Act, 49 Stat. 449, 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 authorized by the Board to ascertain representatives for the purpose of collective bargaining with The. Schiff Company, Columbus, Ohio, 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 super- vision of the Regional Director for the Ninth 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 employees at the Columbus, Ohio, warehouses of the Company who were employed during the pay-roll period immediately preceding the date of this Direction, including employees in the return, hosiery, and findings departments, department heads, employees who did not work during such pay-roll:period because they were ill or on vacation or in the active military service or training of the United States, or tempo- rarily laid off, but excluding executives, supervisors, foremen, assist- ant foremen, leadmen, clerical workers, engineers, personnel managers, truck drivers, Gilbert Gray, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Warehouse & Distribution Workers Union, affiliated with the Congress of Industrial Organizations, for the purpose of. collective bargaining.