Endicott Johnson de Puerto Rico, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1968

172 N.L.R.B. 1676 (N.L.R.B. 1968)

1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Endicott Johnson de Puerto Rico, Inc . and United
Steelworkers of America , AFL-CIO, Petitioner
and Sindicato de Trabajadores Packinghouse,
United Packinghouse Workers of America,
AFL-CIO, District No. 9 of Puerto Rico, Inter-
venor . Case 24-RC-3422
August 21, 1968
DECISION ON REVIEW AND DIRECTION OF
ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On May 3, 1968, the Regional Director for Re-
gion 24 issued a Decision and Order in the above-
entitled proceeding in which he dismissed the peti-
tion as premature, "without prejudice to the Peti-
tioner filing a new petition towards the end of 1968
when it is expected that the Employer will have a
more representative and substantial working
force." Thereafter, the Petitioner filed a timely
request for review of the Regional Director's Deci-
sion on the ground that he departed from officially
reported Board precedent. The Employer filed a
statement in opposition to the request for review.
On June 6, 1968, the National Labor Relations
Board by telegraphic order granted the request for
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has considered the entire record in
this case with respect to the issues under review, in-
cluding the positions of the parties as stated in the
request for review and the opposition thereto, and
makes the following findings:
The Employer is engaged in the manufacture and
sale of shoes. In 1966, a representative of its
parent, Endicott Johnson Company, submitted a
plan to the Puerto Rico Industrial Development
Corp. (Fomento) for the construction of two plants
for the production of shoes in Puerto Rico. Fomen-
to thereafter allocated a tract of 12-1 /2 acres of
land near Aguadilla.
As found by the Regional Director, construction
of the first plant was begun in December 1966 and
completed in July 1967. Thereupon, production of
four types of shoes commenced with 50 employees.
During September and October 1967, the Em-
ployer hired about 100 additional employees for
such production. In November and December
1967, the Employer began to produce two more
types of shoes and hired another 50 employees for
the purpose. By the end of 1967 and continuing
until the hearing date of April 9, 1968, the Em-
ployer had a complement of approximately 200 em-
ployees in 115 assigned job classifications engaged
in the production of six types of shoes. The Em-
ployer stated at the hearing that it had definite
plans to add about 50 employees near the end of
May 1968 to produce two more types of shoes, to
add 60 more employees in October 1968 to
produce two other types of shoes, and 50 more by
the end of the year to work on another two addi-
tional types of shoes. Summing up, the Employer
asserted that by the end of 1968 it would definitely
have at least 500 employees at the first plant work-
ing in 250 job classifications producing 12 different
types of shoes. The Employer's general manager,
Ed M. Hawley, testified that the second plant would
be connected with the first by a warehouse and that
the Employer planned to hire 600 employees to
work in the second plant in 110 "new job classifica-
tions" producing eight other types of shoes. No
estimate was given of the date when the second
plant would be in full operation.
The Regional Director concluded that the
present complement was not a representative and
substantial one, because at the time of the hearing
the Employer had 200 employees working in 115
job classifications and had definite plans to expand
by adding more employees and new job classifica-
tions involving additional skills at a regular pace
every other month until the end of 1968 when there
would be over 500 employees in 250 job classifica-
tions. The Petitioner contends that the Employer's
job titles should not be viewed as separate job clas-
sifications and that there is no record support for
the Regional Director's finding that new job titles
planned for the future will require new skills. We
find merit in the Petitioner's contention.
The Employer's shoe assembly plant is subdi-
vided into six functional departments: cutting,
stitching, hand sewing, lasting, bottoming, and dry
and pack. It appears that most of the employees en-
gaged in shoe assembly are paid on an incentive ba-
sis. According to the Employer's piecework numer-
ical index of shoe assembly job titles planned for
the operations at full production, there will be
about 386 job titles for the anticipated total com-
plement of some 1,100 employees. However, it ap-
pears from our examination of this list of job titles
that they are designed to describe distinct opera-
tions in the assembly of the various types of shoes
to be produced for purposes of applying the Em-
172 NLRB No. 194
ENDICOTT JOHNSON DE PUERTO RICO 1677
ployer's incentive system' rather than necessarily to
describe separate and distinct job classifications in
terms of types of skills possessed by its employees.2
Furthermore, we find nothing in the record to in-
dicate that the new job titles planned by the Em-
ployer as additional types of shoes are produced
will necessarily involve new job classifications in
terms of skills. In the circumstances, we are
satisfied that, despite the planned expansion for the
operations involved, the complement at the present
time is representative and substantial for purposes
of directing an immediate election.' We find, there-
fore, contrary to the Regional Director, that a
question exists concerning the representation of
certain employees of the Employer within the
meaning of Sections 9(c)(1) and 2(6) and (7) of
the Act.
We find, in accord with the Petitioner's request,
that the following employees of the Employer con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.'
All production and maintenance employees
employed by the Employer at its factory at
Barrio Palmas, Aguadilla, Puerto Rico, exclud-
ing all office clerical employees, guards, and
supervisors, as defined in the Act.
[Direction of Elections omitted from publica-
tion. ]
' E g , the following job titles appear to involve stitching, stitch gusset to
vamp, stitch reverse close, stitch rib puritan, stitch sole (imitation), stitch
(zig-zag) (cushion cover to insole), stitch pocket outside (wax thread).
stitch pocket outside (dry thread), stitch pocket (wax thread), stitch tip to
tongue , stitch facing to gusset , stitch vamp to middle sole, stitch collar (first
row), stitch leather butt onto vamp lining, stitch piping, stitch stripping,
stitch webbing, stitch cover to sock lining (Singer Post), stitch upper to
sock lining ( Singer Post ), stitch piping ( no needle ), skip stitch (AMF). fitt
and stitch corset, stitch butted 0 S Parts (Singer Zig Zag machine), stitch
label (nonautomatic), stitch gusset eyelet row, stitch tape (Herringbone),
stitch outsole (Littleway), stitch outsole (Goodyear), stitch tip ( wing),
stitch tip (straight), stitch Imt (Singer) nonfunctional, stitch Imt (Union
Special) (nonfunctional); stitch vamp (ornamental), stitch cutout or hole
stitch, stitch outsole (McKay), stitch moccasin (Goodyear or Union Lock),
stitch lining facing (Zig Zag), stitch collar facing (Army), stitch top facing
(roll), stitch tong backer or lining , stitch sole (Union lock stitch or pu-
ritan), top or edge stitch, binding, stitch and fold, stitch and turn-braid or
leather
t We note that the Dictionary of Occ upational Titles, Vol 1, Definitions of
Titles (3d ed , 1965), U S Dept of Labor, pp 654-655, carries only 24 ti-
tles within the shoe industry
' See The American Brass Company, 120 NLRB 1276, 1280-81, Vic/,ers,
Incorporated, 117 NLRB 1767 The cases cited by the Regional Director
are factually distinguishable The case of General Extrusion Company, Inc ,
121 NLRB 1165, relied on by the Employer to support the Regional
Director's Decision, is also inapposite The criteria set forth in General Er-
trusion are applicable to contract-bar issues and were not intended to
govern cases like the instant one involving an expanding unit, where the
issue is whether the present complement is sufficiently representative and
substantial to warrant holding an immediate election
' The Intervenor was in accord with the Petitioner's unit request
' An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region 24 within 7 days after the date of this Decision on Review and
Direction of Election The Regional Director shall make the list available
to all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Excelsior Underwear
Inc , 156 NLRB 1236 However, in N L R B v Wvman-Gordon Co , 397
F 2d 394, the Court of Appeals for the First Circuit, while indicating ap-
proval of the substance of the Board's Exelsior decision, held that the
requirement of the furnishing of an eligibility list is void because it was not
adopted in conformity with the provisions of Section 4 of the Administra-
tive Procedure Act (5 U S C Sec 553) While noting our disagreement
with Wvman-Gordon, we shall in deference to the First Circuit modify our
procedures in elections conducted within the territorial jurisdiction of that
circuit where an employer refuses to furnish the eligibility list In such
cases, until the propriety of the Board's procedure in adopting the E. a elsior
requirement has been finally determined, we shall not issue a subpena for
the production of the list, nor shall we seek court enforcement of the
requirement, and upon the filing of timely objections on the ground an
election was conducted without the list, the objections will be held by the
Regional Office until such time as th'- propriety of the Board's procedure in
adopting the Excelsior rule has been finally resolved