J. Edwards & Co.

National Labor Relations Board - Board Decisions

Feb 6, 1940

20 N.L.R.B. 244 (N.L.R.B. 1940)

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.