Endicott Johnson Corp.

National Labor Relations Board - Board Decisions

May 10, 1946

67 N.L.R.B. 1342 (N.L.R.B. 1946)

In the Matter of ENDICOTT JOHNSON CORPORATION and UNITED SHOB
WORKERS OF AMERICA, C. 1. O.
Case No. 3-R-1113.-Decided May 10, 1946
Sullivan d. Cromwell, by Mr. Charles S. Hamilton, of New York
City , and Mr. Howard Swartwood , of Endicott , N. Y., for the Com-
pany.
Mr. Harry Sacher, of New York City, for the Union.
Mr. Samuel M . Kaynard, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a separate 1 petition duly filed by United Shoe Workers of
America, C. I. 0., herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Endicott Johnson Corporation, Endicott, New York, herein
called the Company, the National Labor Relations Board provided for
an appropriate hearing upon due notice before James R. Hemingway,
Trial Examiner. The hearing was held at Binghamton, New York,
on January 22, 1946. The Company and the Union appeared and
participated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing 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
Endicott Johnson Corporation, a New York corporation, has its
principal office and place of business in Endicott, New York. It is
1 The United Shoe Workers of America, C. I. 0, filed a petition in Case No. 3-R-1100,
seeking a unit of the employees of the die shop of the Company; it thereafter filed this
present petition in Case No 3-11-1113, requesting a unit of production and maintenance
employees of the Security Factory and Security Annex of the Company. By a Board
Order, dated January 7, 1946, the Board consolidated both cases for the purpose of hearings
For the purpose of decision , the Board has ordered a severance of the cases by a Board
Order dated March 22, 1946
67 N. L. R. B, No. 180.
1342
ENDICOTT JOHNSON CORPORATION 1343
engaged in the business of production, manufacture, sale, and dis-
tribution of leather, canvas, and rubber footwear at its numerous shoe
factories and tanneries in Binghamton, Johnson City, Endicott, West
Endicott, and Owego, New York. During the fiscal year ending No-
vember 30, 1945, the Company used raw materials valued at $39,000,-
000. Approximately 60 percent by value of the raw materials so used
was shipped to its plants in the State of New York from points out-
side of that State. During the same period, the Company sold
finished products valued at approximately $81,000,000. About 89
percent by value of the finished products was shipped from the afore-
mentioned plants to points outside of the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. TIIE ORGANIZATION INVOLVED
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. TIIE QUESTION CONCERNING REPRESENTATION
In a letter dated October 12, 1945, addressed to Mr. Howard Swart-
wood, general counsel and secretary of the Company, the Union claimed
representation of a majority of the employees of the Security Factory
and Security Annex at Endicott, New York, and requested a conference
for the purpose of collective bargaining. In a letter dated October
16, 1945, the Company claimed the proposed unit was inappropriate
and refused a conference with the Union.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.2
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.
r
IT. TIIE APPROPRIATE UNIT
The Union seeks a unit of the production and maintenance em-
ployees of one of the Company's shoe factories located at Endicott,
New York, known as the Security Factory and Security Annex, with
2 The Field Examiner reported that the Union submitted 146 (actual count shows 145)
authorization and application cards which checked with the names listed on the Company's
pay roll ; the cards are dated as follows : March 1945-2, April 1945-12; September
1945-16; October 1945-104 , November 1945-5; undated-6. The Field Examiner's
report, dated November 30, 1945, stated that there were approximately 476 employees in
the unit petitioned for
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain exclusions and inclusions, hereinafter discussed. The Com-
pany contends that the only appropriate unit is an employer-wide unit
of all its production and maintenance employees in its various plants,
subject only to the fact that there is at present a separate unit con-
sisting of the six tanneries at Endicott, New York, and another sepa-
rate unit consisting of the rubber reclaim and paracord factories in
Johnson City, New York.
In the course of its operations, the Company employs about 15,500
production workers, of which 8,000 or 9,000 are production workers in
the shoe factories. The Company operates many plants, all of which
are centered around Binghamton, New York. There are 22 shoe fac-
tories,3 spread over an area of 18 miles, 6 tanneries & and a great many
auxiliary and service plants,' such as transportation departments, parts
factories, repair shops, laundry, printing, mechanics department,
diners and bakery."
In some respects the Company's operations are functionally inte-
grated under a common over-all management. Working conditions
and operations and company policy and benefits are substantially
the same for all the shoe factories of the Company. In other respects
the record discloses that each plant has a certain degree of independence
and a separate character. There is a separate superintendent for each
factory. Although it is possible for any shoe factory to work on
shoes of the type made by another, usually each factory specializes
on a particular type of shoe. It appears that adjustments in piece-rates
are made at one factory without regard to other factories. While there
might be as many as 100 temporary transfers a week out of 8,000 or
9,000 shoe factory workers, these transfers are, for the most part,
voluntary and sought by employees for such purposes as overtime pay
in another factory while on time off. Some factories receive component
parts of the shoe from other departments and are charged with the
cost of such parts, somewhat analogous to a customer-seller relation-
ship, since the cost charged includes a "profit" margin. Such parts
are also sometimes sold to a neighboring company. There is evidence
that a work stoppage in one factory would affect the production of
only that factory.
Although the Union's organizational efforts have been directed
toward all the Company's plants since 1940, only in the unit requested
and in the die shop petitioned for in Case No. 3-R-1100 7 have its efforts
3 Factory locations are • Binghamton-3 ; Johnson City-12 ; Owego-2 ; Endicott and
West Endicott (ihcludmg Security Factory ana Annex)-5
4 Tanneries are located at Endicott.
5 Twenty-one auxiliary plants and six service plants.
0 Seven diners located at Binghamton ( 1), Johnson City ( 2), Endicott ( 2), and West
Endicott ( 1). One bakery at Johnson City.
4 Case No. 3-R-1100 , involving the die shop of the Company was severed from this case
for the purpose of decision. See footnote 1, supra.
ENDICOTT JOHNSON CORPORATION 1345,
resulted in more than a 5-percent membership among the employees.
The record does not disclose that any organization has recently been
attempting to organize the Company's employees on a system-wide
basis , other than the petitioning union.
In asserting that the proposed unit is inappropriate the Company
relies, to a great extent, on the Board's prior decisions in cases in-
volving the Company. In a representation proceeding before the
Board in 1939 involving the Company, the Union and the Boot and
Shoe Workers Union, A. F. L., pursuant to an agreement of the parties,
the Board found an employer-wide unit appropriate 8 In 1942, how-
ever, the Board found appropriate a unit of the six tanneries; 9 in
1944,10 the Board found appropriate a unit of the rubber reclaim and
paracord factories. The Company relies strongly on a statement in
the 1944 decision that the finding of a separate unit therein "is not
to be construed as sanctioning future organization of the shoe factories
of the Company on a fragmentary basis." 11 Although the 1939 de-
cision found an employer-wide unit appropriate, this finding was,
predicated on an agreement of the parties 12 and the issue of a single
plant unit was not present. The election ordered was not won by
either union 1' and hence did not result in a collective bargaining his-
tory on the employer-wide basis.14 A prior determination, of course,
does not preclude the Board from later finding smaller units appro-
priate.' Thus, in this system, in 1942 the Board found a unit of six
tanneries appropriate; in 1944, the rubber reclaim and paracord fac-
tories were held to be appropriate. Our admonition in the rubber and
paracord case that the finding therein should not be construed as "sanc-
tioning" future organization on a "fragmentary basis" was obviously
only a caveat and not a prohibition. Indeed, the context of the 1944
decision itself is answer to any claim that the Board therein irrevocably
committed itself to the employer-wide unit in all future cases. We
said: 16
8 Matter of Endicott Johnson Corporation , 17 N L R B 1004
1 Matter of Endicott Johnson Corporation , 45 N. L R. B 1092.
10 Matter of Endicott Johnson Corporation , 57 N L . R. B. 1473.
11 Matter of Endicott Johnson Corporation, 57 N L . R. B 1473, at page 1476.
12 Matter of Endicott Johnson Corporation, 17 N. L R B . 1004 Our decision said. We
see no reason to deviate from the desires of the parties " (Page 1007)
Is Matter of Endicott Johnson Corporation , 20 N. L R B. 698
14 See Matter of Endicott Johnson Corporation , 45 N L A , B 1092 ; Matter of Endicott
Johnson Corporation , 57 N L R B 1473
16 See Matter of Pacific Greyhound Lines, 9 N L. R B 557 , at page 573 ; Matter of
Jones Laughlin Steel Corporation , 37 N L R B 366 , Matter of Kentucky Fluorspar Com-
pany, 52 N. L. R B 227 ; Matter of Servel, Inc, 51 N , L R B 224 ; Matter of Thomasville
Chair Company , 54 N L . R B 1071 ; Matter of Standard Oil Company of California, 63
N I, R B 471 , Matter of Justin S McCarty , Jr, et al, 61 N L R B 443 This is neces-
sarily so because our statutory duty is to " decide in each case whether, in order to insure
to employees the full benefit of their right to self organization and to collective bargaining,
and otherwise to effectuate the policies of the Act, the unit appropriate for collective
bargaining shall be the employer unit, craft unit, plant unit or subdivision thereof " Section
9 (h) (Italics supplied)
18 Matter of Endicott Johnson Corporation , 57 N L R B 1473 , at page 1475
692148-46-vol 67-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In asserting that the proposed unit is inappropriate, the Com-
pany relies on the Board's prior finding in a prior case that the
employer wide unit was appropriate. In that case, however, the
Board's finding was predicated upon an agreement of the parties.
Furthermore, the election held therein did not result in a certi-
fication and a subsequent history of collective bargaining, since
neither union involved received a majority. We, therefore, find
no merit in the Company's contention that the Union is thereby
precluded from ever seeking a smaller unit as the basis for a
petition for investigation and certification of representatives.
[Italics supplied.]
The Board has often held that the benefits of collective bargaining
will not be denied a smaller group of employees merely because other
employees who might be combined with them into a theoretically more
appropriate unit have not been organized or have shown no inclination
to be represented or organized, provided the unit sought is sufficiently
homogeneous, identifiable and distinct 17
We believe that the Security Factory and Security Annex is suffi-
ciently homogeneous, identifiable and distinct from the other shoe
factories to warrant a finding that it is a presently appropriate unit,
thus affording its employees the benefits of collective bargaining.
We have noted that the Union has been unsuccessful in its attempts
to organize employees in the other factories and that, at the present
time, no other labor organization is attempting to organize the Com-
pany's employees on a system-wide basis. There seems to be no
well-definable trend in the history of collective bargaining in the shoe
industry, favoring organization along plant lines 11 or on a system-
wide basis.19 In view of the above circumstances, we conclude that
the Security Factory and Security Annex is appropriate for collec-
11 Matter of Uhlman Elevators Company of Texas, 64 N L K B 1068; Matter of Riegel
Paper Company, 63 N L R B 538, Matter of Tomlinson of High Point, Inc , 55 N. L R B
1287; Matter of Thomasville Choir Company, 54 N L K B. 1071, Matter of Oliver Ma-
chinery Company, 39 N L K. B. 722 (and cases cited therein) , Matter of Swift & Company,
42 N. L R B 1184 (and cases cited therein) , Matter of Brown Paper Company, 34 N. L
R, B 743 , Matter of Standard Oil Company of California, 63 N L K B 471 , Matter of
Textiles, Inc, 64 N L It. B 1113, Matter of Justin S McCarty, Jr, et at, 61 N. L. K. B.
443, Matter of Dixie Manufacturing Company, 54 N L It B 384, See Matter of Standard
Overall Company, 53 N I, K B. 960 (and cases cited therein), which specifically overruled
K & B Packing and Provision Company, 51 N L K B 617 and 1'iclett-Brown Manufactur-
ing Company, 51 N L R B. 34, which decisions rested upon the them y that a union's pre-
vious attempts to organize on a broader basis than the unit for which it petitions, is fatal
to such petition.
is Matter of International Shoe Company , 56 N. L. R B 298 , Matter of Brown Shoe
Company, 41 N. L R B. 562 ; Matter of Brown, Shoe Co et at , Inc., 54 N L, It. B. 1453;
Matter of Brown Shoe Company, 22 N L K B 1080 , Matter of U. S. Shoe Corporation,
43 N L R B 637 ; Matter of L P. Marks and Sons, Inc, 44 N L R. B 719, Matter of
Moulton -Bartley, Inc , 60 N. L . R. B. 1238 ( unit of upper cutting department of shoe
factory ) , Matter of Boyd - 1Velsh , Inc, 59 N L R B 1442 ( self-determination for em-
ployees of cutting department ) ; Carina Shoe Manufacturing Company , 56 N. L R B 509.
19 See Matter of Somerset Shoe, 5 N. L It. B . 486 , Matter of Lenox Shoe Company, Inc , 4
N L R, B. 372, Matter of Craddock -Terry Shoe Corporation , 44 N L K B 738
ENDICOTT JOHNSON CORPORATION 1347
tive bargaining at the present time. This conclusion will not, how-
ever, preclude a finding at some later date and under other circum-
stances that a larger unit is more appropriate.
The inclusion or exclusion of certain categories of employees within
the unit found appropriate is also in dispute.
"Supervisory employees." So-called "supervisory employees" di-
rect from one to six employees; they have no authority to hire or
discharge nor to recommend it; it is not regarded as their function
to recommend promotion, demotion, transfer, or increase in pay.
Even though their recommendations might be given weight if made,
they do not make a practice of making such recommendations. Their
duties are to keep production moving on schedule and to inspect and
control the quality of work; they are paid on an hourly basis; they
sometimes act as foreman in the absence of the latter but how fre-
quently this occurs does not appear. The Union wishes their exclu-
sion; the Company states that it has "no objection" to their inclusion.
It is our opinion that these employees do not come within the Board's
definition of supervisory employees. We shall include them in the
unit.
Guards. There are two guards at the Security Factory, one at the
gate, and one outside.20 They are not sworn into military service.
The Union desires their inclusion. In accordance with established
principles we shall include them.2i
Inspectors. These employees inspect the work after completion of
an operation or after completion of the end product. The Union and
the Company desire their inclusion. We shall include them .22
Janitors. They are regarded as maintenance employees. The
Union and the Company desire their inclusion. We shall include
them.23
We find that all production and maintenance employees in the
Security Factory and Security Annex of the Company at Endicott,
New York, including so-called "supervisory employees," guards, in-
spectors, and janitors, but excluding officials, clerical employees,
watchmen not under direct supervision of the supervisors of the Se-
curity Factory and Security Annex, foremen and all other supervisory
employees with authority to hire, promote, discharge, discipline, or
20 By "watchmen" in the exclusion listed in the petition, the Union was describing the
plant-protection and fire prevention men who are already organized in a separate unit and
are not under the supervision of the Security Factory Superintendent.
21 Matter of Thomasville Chair Company, supra, Matter of Dunn and McCarthy, 58 N. L.
R. B. 935 , Matter of A . S Kreider Company, 61 N. L R. B . 155 ; Matter of International
Shoe Company, 64 N L R B 457; Matter of Brown Shoe Company, 22 N. L R. B. 1080,
Matter of Boyd -Welsh , supra.
22 Matter of The Whitney Blake Company, 66 N. L. It. B. 491 ( and cases cited therein).
23 Matter of Dunn and McCarthy , supra; Matter of International Shoe Company , supra,
Matter of Brown Shoe Company, supra ; Matter of Craddock - Terry Shoe Corp., 64 N. L.
It. B. 1176
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. THE DETERMINATION OF REPRESENTATIVES
The Company requests that its employees presently in the armed
forces should be permitted to vote by mail. The record indicates that
at the time of the hearing there were 99 men on military leave, 84
of whom are still in the service and 15 of whom have been discharged
but whose 90-day period to exercise their right of reemployment has
not expired. As noted in footnote 2, supra, there are about 476 em-
ployees in the unit herein found appropriate. We are of the opinion
that the facts in this case do not differ substantially from those in
Matter of South West Pennsylvania Pipe Lines 24 and succeeding cases.
Accordingly, we shall grant the Company's request for mail balloting,
subject to the provisions hereinafter mentioned.
We shall direct that the question concerning representation be re-
solved by an election by secret ballot among employees in the appro-
priate 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. In this case, the
Regional Director shall mail ballots to employees within the appro-
priate unit on military leave, provided one or more of the parties
hereto, within seven (7) days from the receipt of the Direction of
Election, files with the Regional Director a list containing the names,
most recent addresses, and work classifications of such employees. The
Regional Director shall open and count the ballots cast by mail by
employees on military leave, provided that such ballots must be re-
turned to and received at the Regional Office within thirty (30) days
from the date they are mailed to the employees by the Regional
Director.25
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 9, of National Labor
24 Matter of South West Pennsylvania Pipe Lines , 64 N L. R B 1384
25 A free interchange between the interested parties of information on the addresses and
work categories of the employees to be voted by mail will be necessary in order to avoid
challenges and post-election objections. Accordingly, the Board will make available to all
Interested parties any information of this nature furnished it by any other party In the
event that the parties should send the absentee voters any information or literature bear-
ing directly or indirectly on the pending election, copies of all such documents should be
simultaneously filed with the Regional Office for inspection by or transmittal to the other
parties However, acceptance or transmittal of such literature by the Board's office is not
to be construed as conferring Immunity on the filing party In the event that objections are
later interposed concerning its content The usual principles will apply.
ENDICOTT JOHNSON CORPORATION 1349
Relations 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 Endicott Johnson
Corporation, Endicott, New York, an election by secret ballot shall be
conducted as early as possible, but not later than forty-five (45) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Third 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
employees 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, 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 or not they desire to
be represented by United Shoe Workers of America, C. I. 0., for the
purposes of collective bargaining.
MR. GERARD D. REILLY, dissenting :
I am constrained to dissent from the decision reached by my col-
leagues in this case as to the appropriateness of the unit sought by the
Union in the Security Factory and Security Annex of the Company.
The Board has previously found that all of the shoe manufacturing
operations of the Company comprise an appropriate unit. It is true
that we have found separate units appropriate for various service
branches of the Company's operations, but these cases- are not per-
suasive when advanced as reasons for finding partial units of the
shoe manufacturing plants themselves.
The Board did, for instance, find that the six tanneries and the
rubber and paracord plants, respectively, constituted appropriate
units. Even in these cases, however, we had adhered to a policy of
finding the entire employer unit appropriate, as in each of these units
we have included all of the particular service functions in one unit.
It is apparent also that the various service operations stand in a
different relationship to the shoe manufacturing plants than the
manufacturing plants do to each other. We recognized these facts
in our decision on the rubber and paracord units 28 when we stated,
"our finding in this respect is not to be construed as sanctioning future
organization of the shoe factories of the Company on a fragmentary
basis."
26 Matter of Endicott Johnson Corporation, 57 N L R B 1473
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although I do not believe that our prior findings of one appropriate
unit for the shoe manufacturing plants of the Company, or the lan-
guage we have used in establishing the separate service units of the
Company, preclude us from finding a lesser unit in this case, it is my
opinion that such a finding should be based on sound and valid
grounds . The petitioning union in this case has argued that their
organization efforts have been directed only at the Security Factory
and its Annex. Although the Board has in prior cases granted units
on this basis , it has not done so where such persuasive reasons existed
for coming to a contrary conclusion . In the Matter of Oneida, Ltd.,°z
the Board answered a similar argument by stating :
The Union argues that since it has limited its organizational
activities to the employees in the Company 's knife plant, and
since the knife plant is physically separate from the other manu-
facturing units of the Company, such employees may be ap-
propriately grouped in a separate unit for the purposes of col-
lective bargaining. We find this contention to be without
merit . . . since it is apparent that the employees in the knife
plant constitute an integral and indistinguishable part of the
entire . . . operation of the Company .. .
The indicia of integration which the record discloses and which
the majority has set forth in its opinion, the prior decisions of the
Board concerning the operations of this Company, and the fact that
there are no new circumstances leading to a different conclusion in
this case , impel me to the conclusion that the petition herein should
be dismissed.
27 49 N L R B 1178.