I. Miller & Sons, Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1939

13 N.L.R.B. 691 (N.L.R.B. 1939)

In the Matter of I. M ILLER & SONS, INC. and BOOT & SHOE WORKERS
UNION, A. F. OF L.
Case No. R-1372.-Decided July 18, 1939
Shoe Manufacturing Industry-Investigation of Representatives : controversy
concerning representation of employees : rival organizations ; substantial doubt
as to majority status-Contract : for 3-year period, of which 2i/._> years have
elapsed since its execution and almost two years since its assignment , no bar to
investigation or certification of representatives -Unit Appropriate for Collective
Bargaining : production employees , exclusive of supervisory , clerical , maintenance,
shipping employees , and special groups ; stipulation as to-Election Ordered
Mrs. Hilda D. Shea, for the Board.
Mr. James Harte Levenson, of Long Island City, N. Y., for the
Company.
Mr. Leonard J. Ford, of Long Island City, N. Y., for the Shoe
Workers Union.
Mr. Samuel M. Sacher, of New York City, for the United.
Mr. Edwin L. Swope, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 1, 1938, Boot & Shoe Workers Union, A. F. of L..
herein called the Shoe Workers Union, filed with the Regional Director
for the Second Region (New York City) a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of I. Miller & Sons, Inc., Long Island City, New York,
herein called the Company, and requesting an investigation and certi-
fication of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On April 4,
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 1,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice.
13 N L. R B., No. 78
691
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 20, 1939, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the Shoe
Workers Union, and upon the United Shoe Workers of America,
Joint Council #13, C. I. 0., herein referred to as the United, a labor
organization claiming to represent employees directly affected by the
investigation. Pursuant to notice, a hearing was held on May 8 and
9, 1939, at New York City,• before William Seagle, the Trial
Examiner duly designated by the Board. The Board, the Company,
the Shoe Workers Union, and the United were represented by counsel
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
I. Miller & Sons, Inc., a New York corporation, is engaged in the
manufacture, sale, and distribution of ladies' shoes and related prod-
ucts, with its principal office and place of business at Long Island
City, New York, where it has approximately 1,440 employees. The
Company also maintains and operates retail stores in New York City.
Philadelphia, Pennsylvania; Baltimore, Maryland; and Washington,
D. C. The present petition concerns only those employees of the
Company working at its Long Island City plant.
Between March 1, 1938, and February 28, 1939, more than 90 per
cent of the gross value of all the raw materials used by the Company,
amounting to about $1,300,000, were obtained outside the State of
New York and shipped to its Long Island City plant. During this
same period the Company shipped about 90 per cent of its finished
products, the value of which was approximately $3,750,000, to points
outside the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Boot and Shoe Workers Union, Local Union No. 654, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership all the production employees of the Company at its
I. N 1LLER & SONS2 INCORPORATED 693
Long Island City plant, exclusive of supervisory , clerical , mainte-
nance, shipping employees , and special groups.
United Shoe Workers of America, Joint Council No . 13, affiliated
with the Committee for Industrial Organization , is a labor organiza-
tion admitting to membership the same employees as the other organ-
ization.
III. THE QUESTION CONCERNING REPRESENTATION
In 1933, during the course of a strike, the Company entered into
a closed-shop contract with the Shoe Workers Union for a term end-
ing November 15, 1936. In January 1934, an election was held by the
old National Labor Relations Board to determine whether the Shoe
Workers Union represented a majority of the employees covered by
its contract. The Shoe Workers Union received a majority of the
votes cast. When this contract expired on November 15, 1936, it was
renewed for a 3-year period, expiring November 15, 1939.
On July 9, 1937, the Shoe Workers Union, the United and the Com-
pany entered into a consent-election agreement which provided that
the Regional Director for the Second Region should conduct an elec-
tion for the purpose of determining the collective bargaining agency
desired by the Company's employees. On or about July 13, 1937, the
Shoe Workers Union notified the United that it would assign its con-
tract to the United in the event the United won the election. On July
30, 1937, as a result of the election, which was held on July 28, the
Regional Director certified that the United had received a majority
of the votes. Thereafter, with the consent of all parties the con-
tract was assigned to the United. In September 1938, the Shoe Work-
ers Union began reorganizing the Company's employees and now
claims to represent a majority of them. This claim is denied by the
United.
There is no assertion by the United that the closed. shop contract
constitutes a bar to the present proceedings, but the Company urges
that the bargaining representatives under the contract should not be
changed during the term of the contract. Inasmuch as the contract,
which by its terms expires on November 15, 1939, has been in effect
for more than 21/2 years since its execution and almost 2 years since
its assignment, we find that it constitutes no bar to an investigation or
certification of representatives.'
We find that a question has arisen concerning the representation
of employees of the Company.
i Matter o f Columbia Broadcasting System, Inc and American Communications Associa-
tion (Formerly American Radio Telegraphists Association, 8 N L R B. 508; Mattel of
Metro-Goldwyn -Mayer Studios , and Motion Picture Producers Assn, et al and Soieen
Writers Guild, Inc., 7 N. L R. B. 662 ; Matter o f Martin Bros Box Company and Toledo
Industrial Union Council , 7 N. L. R. B 88; Matter of Brown-Saltman Furniture Company
and United Fui nitin e Workers of America, Local No. 576, C. I O , 7 N L R B. 1174.
187930-39-vol. 13--45
694 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
The Shoe Workers Union, the United, and the Company have agreed
that the unit should be composed of all the Company's production
employees excluding supervisory, clerical, maintenance, shipping em-
ployees, and special groups. Most of the employees included in the
special groups work in the following departments : Credit and Re-
ceiving, Last Repairs, Dye, Pattern, Repairs, Assembly, Piping, and
General. The balance of the employees in the special groups have
duties consisting mainly of distributing materials to the production
employees, and are assigned to a number of departments.2
We shall adopt the unit agreed to by the parties. We therefore find
that all the production employees of the Company at its Long Island
City plant, excluding supervisory, clerical, maintenance, shipping
employees, and the employees in the special groups who are listed
in Appendix B, constitute a unit appropriate for the purposes of col-
lective bargaining. We further find that said unit will insure to em-
ployees of the Company the full benefit of their right to self -organi-
zation and to collective bargaining and otherwise effectuate the policies
of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
A list of the Company's employees who were on its April 28, 1939,
pay roll was introduced in evidence. This list contains the names of
1,150 employees in the appropriate unit. All the parties agreed that
this list should be used as a basis for the determination of the repre-
sentative of the employees.
At the hearing the Shoe Workers Union claimed that 483 of the
Company's employees had signed petitions on or about September
18, 19, and 20, 1938, designating it as their bargaining agency, and that
by October 10, 1938, 165 employees had also signed pledge cards.
Neither the petitions nor the cards were submitted in evidence. The
Shoe Workers Union's explanation for not submitting them was that
2 The names of the employees designated by the Company as being in the special groups
are listed in Appendix B
I. MILLER & SONS, INCORPORATED 695
it feared that if the identity of any of the signers became known to the
United they might be expelled from the United and thus, because of
the United's closed-shop contract with the Company, lose their jobs.
The United contends in substance that the proof of membership offered
by the Shoe Workers Union does not raise a question concerning
representation. We are of the opinion that under the circumstances
here disclosed such a question exists, as we have hereinabove found.
We further find that the question concerning representation can be
best resolved by an election by secret ballot. The United urges that
an election, if ordered, should be held on or about July 15 or August 1,
1939. The Company contends that if an election is held, it should be
held on or about September 1, 1939. The Shoe Workers Union made
no contention with regard to the date of the election, expressing its
willingness to abide by the Board's decision. Both the United and
the Company state that it requires at least 2 months to negotiate a
collective bargaining contract and that the election should be held
before the present contract expires on November 15, 1939.
The record shows that the two production peaks in the Company's
business extend from December 15 to April 1 and from May 15
to September 1; and that the two slack seasons extend from April
1 to May 15 and from September 1 to December 15. The
Company urges that an election should not be held during the
peak season, apparently because it anticipates a loss of em-
ployees' time, while the United contends that in order to insure
most employees participating in the election, it should he held
before the slack season begins in September. We see no reason to
depart from our usual practice, and we shall, therefore, direct that
the election be held within 20 days from the date of our Direction.
In accordance with the agreement of the parties, we shall direct
the use of the pay roll of April 28, 1939, to determine eligibility to
participate in the election.
All the parties agreed at the hearing that certain employees
of the Company, who were involved in an arbitration proceeding
held in March 1939,3 should be allowed to participate in the elec-
tion if they have been reemployed by the Company at the time of
the election and we shall so direct.
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 I. Miller & Sons, Inc., Long Island City,
3 The names of these persons are listed in Appendix A
696 DECISIONS '' OF NATIONAL LABOR RELATIONS BOARD
New York, within the meaning of Section 9 (c) and Section 2
( 6) and (7) of the National Labor Relations Act.
2. All the production employees of the Company at its Long Island
City plant, exclusive of all supervisory, clerical, maintenance, ship-
ping employees, and those employees in the special groups, who are
listed in Appendix B, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the
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 Re-
lations Act, 49 Stat. 449, and pursuant to Article III, Sections 8
and 9, of National Labor Relations Board Rules and Regulations-
Series 2, it is hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective
bargaining with I. Miller & Sons, Inc., Long Island City, New York,
an election by secret ballot shall be conducted within twenty (20)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Second 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 the employees of the Company who were on its April 28,
1939, pay roll, including employees who did not work during such
pay-roll period because they were ill or on vacation, and employees
who were then or have since been temporarily laid off but excluding
supervisory, clerical, maintenance, shipping employees, and those em-
ployees listed in Appendix B who are in the special groups, and those
employees who have quit or been discharged for cause since April
28, 1939, except that any of these employees listed in Appendix A
who have been reemployed by the Company on the date of the
election shall also be eligible to vote, to determine whether they
desire to be represented by Boot and Shoe Workers. Union, Local
Union No. 654, affiliated with the American Federation of Labor, or by
United Shoe Workers of America, Joint Council No. 13, affiliated
with the Conunittee for Industrial Organization, for the purposes
of collective bargaining, or by neither.
I. MILLER & SONS, INCORPORATED 697
APPENDlx A
Compese
Nilo
V. Ferrante
D. Ferrante
Mistretto
Capitano
Braunstein
Sobel
Sanfelippo
Galiger
Katz
Farkas
De Fresco
Panko
Briscioni
Cardone
Cannella
Ruocco
Capitano
Asta
Rosik
Violo
Mel iganano
APPENDIX B
GENERAL DEPARTMENT
Errol E. Williams
Sam Polsky
Fred Caproff
Blanche Lehman
Hilliam Halpern
Thomas Czopp
Anthony Dibella
Harold Weinstein
CREDIT & RECEIVING DEPARTMENT
Milton Silverstone
Sigmond Paris
LAST REPAIRS DEPARTMENT
Frank A. Ulliano
Paul Delco
Harold Lenger
Julio Ortiz
Walter Romer
Uldinico Resta
Salvatore Pampinella
Sam Lefkowitz
Joseph Caccavale
Robert B. Romer
Louis Remoline
William Loid Annis
Dononic Stabile
REPAIRS DEPARTMENT
Sadie L. Kemoline
Adeline M. Lampone
William G. Chaisson
Thomas De Lessio
Garabed Dergarabedian
Vincent Cirulli
Pasquale Napoletano
Max Friedman
Dorminick Lombardi
Patsy Miani
Toni Di Stefano
Max Lorber
Barney Reina
Paul Reale
Marcus Heller
Jack V. Buccellato
Tessie Helen Lisanti
Michael Crociata
Mildred Stancarone
Joseph Gumina
Paul Ciancio
Ferruccio Alibrandi
Anthony Marchel
Andrew Vitale
DYE DEPARTMENT
Ludwig Ernest Klein
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PATTERN DEPARTMENT
George E. Barhold
Joseph A. Bottner
Carl Capobianco
Albert J. Finch
Frank G. Frieling
Thomas Demartino
William McCall
Harry Hugh McCrory
Michael A. Rotolo
Harold Nealon
Robert Sparling
Nicholas Pronesti
ASSEMBLY DEPARTMENT
Peter Gallagher
Frank Spinetti
Dan R. Senicola
Anthony Ortenzi
Anthony F. Lepera
Albert Delmonico
John Ambrosini
Dominic A. Caponera
Vito J. Zilempe
Frank A. Macchia
Anthony R. Celebre
Thomas Brindisi
PIPING DEPARTMENT
Harry Grolitzer
Fanny Brakman
Jerome Setloff
Jean Eisler
Joseph Sojack
EMPLOYEES INCLUDED IN THE SPE-
CIAL GROUPS WHO ARE ASSIGNED
TO VARIOUS DEPARTMENTS
Nathan Fineberg
Frank Hirth
Harry Levin
Sigmund S. Posner
Melvin M. Volgel
Emil Stransky
Leo Tannenbaum
Adolpf Herz
Max Stamler
Samuel J. Anderson
Celia S. Mandelkorn
Nathan Shulaker
Benjamin Fabian
David Bayuk
Mayer Warshawsky
Ann Dolitsky
Carmine R. Leonardo
Joseph Chuckla
Abraham D. Goldstein
Siegfried Engler
Vito Stancarone
Milton Harlem
Louis Ardolino
Esther Pomerantz
Guilo Pennino
Ida Weinstein
C. Marcello
Joseph Syman