Endicott Johnson Corp.

National Labor Relations Board - Board Decisions

May 31, 1957

117 N.L.R.B. 1886 (N.L.R.B. 1957)

1886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in the hire of William T. MacDougall, thereby encouraging
membership in the above-named labor organization, Respondent Frommeyer has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
3. By causing and attempting to cause the Respondent Frommeyer and other
Employers named in section I, herein, to discriminate in the hire and tenure of employ-
ment of applicants for employment and employees, in violation of Section 8 (a) (3)
of the Act, Respondent Local 542 has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (2) of the Act.
4. By restraining and coercing employees and applicants for employment in the
exercise of rights guaranteed by Section 7 of the Act, Respondent Frommeyer has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act,
and Respondent Local 542 has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Endicott Johnson Corporation and Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO, Peti-
tioner. Case No. 3-RC 1707. May 31,1957
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William J. Cavers,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
At the hearing and through an "Auxiliary Motion" filed with the
Board after the hearing under the title and number of this case, the
Employer raised two issues with respect to the Petitioner's compliance
status with the filing requirements of Section 9 (f), (g), and (h) of
the Act. One involved the adequacy of compliance arising out of
the alleged failure of Coyle to file a timely affidavit required by the
Act; while the other involved the necessity of the Fur and Leather
Workers Department of the Petitioner, herein called the Department,
to comply with the Act. The Employer requested that these issues be
resolved in the instant proceeding or in a collateral proceeding.
The Board, in its recent decision in Standard Cigar Company, 117
NLRB 852, restated its policy not to permit parties to litigate the
adequacy of a union's compliance status in representation or com-
plaint proceedings and that parties may seek an administrative deter-
mination of such matters which the Board may properly decide in an
117 NLRB No. 216.
ENDICOTT JOHNSON CORPORATION 1887
M
independent proceeding. In that case , the Board also held that it
will no longer consider evidence and pass on this issue where the hear-
ing officer permitted the introduction of such evidence at the hearing.
"In all future cases," the Board stated, "we shall apply our policy
strictly and require the parties to present such compliance issues for
administrative determination completely separate and apart from the
representation or complaint proceedings ." Accordingly , as the Em-
ployer's motion for an independent determination of the adequacy of
the Petitioner 's compliance has been improperly filed in this proceed-
ing, it is hereby denied, without prejudice to the filing of a proper
motion for an administrative determination completely separate and
apart from this representation proceeding.'
The compliance status of the Department , however, was properly
litigated at the hearing as that issue deals with the necessity of a
union's compliance with Section 9 (f), (g), and ( h) of the Act.2
Upon the record as a whole , we are convinced and find that the De-
partment, a subordinate organization of the Petitioner, exists and
functions at least in part for the purpose of organizing employees and
of dealing with employers concerning wages, hours , and working
conditions . We accordingly find that the Department is a labor or-
ganization within the meaning of the Act.3 In cases involving a non-
complying subordinate labor organization having a sufficient interest
in an employer 's employees , such as the Department herein , the hold-
ing of any election which may be directed is conditioned upon the
compliance of that organization within 2 weeks from the date of the
direction of election 4 However , we are not directing an election here-
in, for the reasons hereinafter stated , and it is therefore unnecessary
to require the Department to comply for the purposes of this
proceeding.'
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner requests a unit of all production and maintenance
tannery employees employed in Endicott , New York. It would also
include in such unit certain chemical department employees and me-
chanical service department employees who are also employed in Endi-
1 Shoe Corporation of America, 117 NLRB 1208.
2 Standard Cigar Company , 117 NLRB 852.
a See United Tanners , Inc, 103 NLRB 760, 763 ; Franklin Tanning Company, 104 NLRB
192, 194; Safrtt Lumber, 108 NLRB 550, 551. We also find that the Petitioner is a labor
organization within the meaning of the Act.
4 See cases cited in footnote 3, supra.
In view of the Petitioner 's interest in the Employer 's employees , we find no merit in
the Employer 's contention that the Petitioner is fronting for the Department . Borden
Food Products Company, 113 NLRB 459, 461 ; Tin Processing Corporation , 80 NLRB
1369, 1371.
1888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cott,s but would accept a unit without these employees. The Em-
ployer contends that an employerwide unit of all its employees in a
4-city area is the only appropriate unit.'
The Employer is one of the largest shoe manufacturers in the
United States. Its principal administrative offices are in Endicott,
New York and within a 9-mile radius from these offices, the Employer
has about 35 to 40 plants in the 4-city area of Endicott, Johnson City,
Binghamton, and Owego. All phases of production in the manu-
facture of a completed shoe, from the tanning of leather to the proc-
essing of shoe polish, are performed within this area. Although each
city has various shoe factories, each of which produces an entire shoe
style, from cutting component parts to shipping, only Endicott has
tannery and chemical plants. One division of the mechanical service
department which includes powerhouses, a pipe, tin, electrical, and
machine shop, lumbermill, painting, and construction crew is located
at Endicott. This department uses roving crews who work through-
out the 4-city area. Johnson City, in addition to shoe factories, has
a rubber reclaiming plant, a carton factory, and the other division of
the mechanical service department consisting of a foundry and die
shop and another machine shop. In the main, Binghamton and Owego
only have shoe factories.
There are 8 tannery buildings located in Endicott, all within about
440 yards, confined to the conversion of hides into leather. The Peti-
tioner would include approximately 1,500 production and maintenance
employees in these buildings. The three major operations carried on
in the tanneries are beam house work, which includes the soaking,
washing, and unhairing of hides; the tanning or chemical treatment,
which is performed in large vats to render the hides durable and pli-
able; and the finishing or currying process, which involves the lubri-
cation of hides to compensate for the removal of natural oils during
the tanning operation, and the splitting, buffing, sorting, rolling, and
baling of hides. The first two operations, except for the mixing of
chemicals, are not performed in any other plants. Most of the finish-
ing operations performed in the tanneries are also done in the shoe
factories, but on smaller component parts of the leather. Employees
from one of the shoe factories in Endicott go to the tanneries to per-
form a waterproofing process on cut soles of leather. A mildew process
on stock cut by the shoe factories is also sent to the tanneries for fur-
ther processing. Each tannery building has its own maintenance
employees who make minor repairs to machinery, crane operators,
9 As discussed below, this is essentially the same unit found appropriate by the Board
in 1942 (45 NLRB 1092), which resulted in a 3-year bargaining history, ending in 1947
Since then, there has been no bargaining history on any basis.
I Such unit was found appropriate by the Board in 1939 (17 NLRB 1004), but no bar-
gaining resulted as a majority of employees voted against two competing unions.
ENDICOTT JOHNSON CORPORATION 1889
truck lift operators, and general laborers. Major repairs, however,
are made by employees from the mechanical service department.
There are approximately 60 chemical department employees in Endi-
cott who mix raw materials to produce various chemicals and cements
used principally in the tanneries, but also used by the shoe factories.
The Petitioner would include all production and maintenance em-
ployees in this department, who work in small buildings located near
the tanneries, but would exclude the employees in the main chemical
building, most of whom are office, technical, or professional employees.
The Petitioner would also exclude seven chemical servicemen, who work
out of the main chemical building and spend most of their time in
the tanneries making changes in the blends used in the tanning proc-
ess. These servicemen, who are not technical employees, also check
on chemical blends used in the shoe factories. A group of chemical
employees, under the supervision of the chemical department, perform
a tankage operation or scrap operation in one of the tanneries. The
Petitioner would include them as part of the chemical department, but
would exclude them in a unit confined to tannery employees. The
Petitioner would also exclude the chemical employees who work on
dry materials about 1 mile from another chemical building and are
under the same supervision as other employees in the department.
The mechanical service department has divisions in Endicott and
Johnson City. In Endicott, it maintains two powerhouses, pipe, elec-
trical, tin, paint, and machine shops, a lumbermill, garage, construc-
tion crew, and general labor crews. In Johnson City, there is a
foundry, a die shop, and another machine shop. The Petitioner seeks
all Endicott employees of this department, except the employees in the
garage, construction crew and in the lumber mill. It would also
exclude the engineers who appear to be technical employees. Various
teams or crews of mechanical service employees work throughout the
four-city area, most of whom the Petitioner would include.'
The Employer has 2 vice presidents, 1 of v^ 11om is responsible for
all operations in Endicott and Owego, and the other has similar re-
sponsibility in Johnson City and Binghamton. The tannery opera-
tions are divided into upper leather and sole leather processing.
Upper leather has a general manager, an assistant general manager,
and separate superintendents for most of the seven tannery buildings.
Sole leather, comprised of a sole leather tannery, has a separate super-
intendent who is directly responsible to one of the vice presidents and
the general manager of upper leather is also responsible to the same
vice president. The chemical and mechanical service departments
have separate supervision. The central office must approve all ex-
8 The Petitioner's reason for excluding certain production employees in, the chemical de-
partment and maintenance employees in the mechanical service department is that those
employees were excluded from an earlier unit finding in 1942,°
423784-57-vol. 117 120
1890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tended sick leave, the termination of any employees, and the hiring
of all applicants. This office is under an employment manager who
handles all matters relating to working conditions and employee
benefits.
There is a centrally administered companywide welfare program for
about 15,000 employees, which includes medical, dental, and hospital
services, legal assistance, housing,9 insurance and pension plans, swim-
ming, golf, and other recreational facilities, banking services, shopping
markets, and restaurants. The Employer also has a companywide
bonus plan in which all employees share equally and it maintains a
uniform policy with respect to vacations, holidays, and working hours.
All employees engaged in comparable job classifications receive the
same rate of pay and wage increases are on a companywide basis.
In addition to permanent transfer of employees among all plants in
the four cities, as a regular policy there are the usual temporary trans-
fers for employees on leave of absence, to adjust for production gaps
in the various departments, and to arrange for seasonal production
problems. Temporary transfers of from 1 hour to 2 weeks are con-
sidered as loans and the record shows that 7,000 such loans were made
in the past year which involved all of the departments in the four-city
area. The record fails to reveal how many of these loans and tempo-
rary transfers were made between the tanneries and other operations.
Within Endicott, where the tanneries are located, 11 employees are
currently working part time in the shoe factories and part time in the
tanneries. During the past year about 10 employees worked full
time at the tanneries on a night shift, and worked part time in the
shoe factories on a day shift.
The Petitioner, which is seeking an almost identical unit with the
one found appropriate by the Board in 1942, involving the same
Employer (45 NLRB 1092, 1094), urges that case as controlling
precedent herein. We do not agree. The tannery unit 10 established
in the earlier case was based primarily on the Petitioner's extent of
organization, a factor to which the Board is now precluded from
giving controlling weight.il Moreover, although there has been no
substantial change in the Employer's tannery operations since the
prior decision, this record shows that there is interchange of em-
ployees between the tanneries and the other operations of the
Employer, a factor which was not present in that case. In addition,
this record manifests a high degree of functional integration and of
9 Employees working in one city may live in homes located in any of the four areas.
Many employees have purchased homes in company-financed housing projects.
10 The parties stipulated in the 1942 case that if the Board found a tannery unit appro-
priate, certain chemical and mechanical service department employees, now sought by the
Petitioner, would be included therein.
u Section 9 (c) (5) of the Act. See Standard-Coosa-Thatcher Company, 80 NLRB 50;
Brown Express, 80 NLRB 753, 755; Sidney Blumenthal & Co., Inc., 112 NLRB 579, 581 ;
Alfred Shaheen, Ltd., 117 NLRB 96.
ENDICOTT JOHNSON- CORPORATION 1891
centralized management control over the general conditions of
employment which is common to all employees, and a close community
of interests among all employees in the four-city area. In view of
the foregoing, we find that the unit sought is inappropriate. 12 In
reaching this conclusion, we have considered but find no merit in the
Petitioner's argument that a separate tannery unit may be justified on
the ground that the tannery operations constitute a separate industry.
Although the Board, in an earlier case," established a .unit of rubber
reclaiming employees on an industry basis, the highly integrated
nature of the Employer's total operations and the close community
of interests among all of its employees convinces us that the only
basis for establishing a separate tannery would rest substantially upon
the extent of the Petitioner's organization among the Employer's
employees, a factor which, as previously stated, cannot be given
controlling weight under the Act. Accordingly, we shall dismiss the
petition.
[The Board dismissed the petition.]
MEMBERS MURDOCK and BEAN, dissenting in part:
We dissent from dismissal of this petition because we find, on the
pertinent facts before us, that a unit of tannery employees is appro-
priate for purposes of collective bargaining. Most of this voluminous
record is devoted to establishing the appropriateness of a company-
wide unit; the issue of this case, however, is not whether or not an all-
embracing four-citywide unit may be established. An employerwide
unit is presumptively appropriate and needs no record justification.''
The real question is whether a unit reaching out and encompassing all
of the approximately 15,000 employees of this Company is the only
appropriate one. On this issue,-the truly relevant facts are those
which compare or contrast working conditions-the eventual subjects
of collective bargainingbetween the tannery workers and the regular
shoe manufacturing employees of this vast enterprise. Considering,
in these respects, the distinguishing characteristics of the tannery
segment of this Company, a conclusion that it may form an appro-
priate bargaining unit is inescapable.
As in all unit determinations, the Board's primary concern is to
give meaning and practical effect to the actual day-to-day relation-
ships among employees. Therefore, it seeks to give "controlling
effect to the community of interests among employees." 11 Among the
factors which the Board has always deemed most pertinent to com-
munity of interests are the kind of work performed, geographic or
13 See cases cited in footnote 11, supra
13 Endicott Johnson Corporation, 57 NLRB 1473
14 Western Electric Company, Incorporated, 98 NLRB 1018, 1032.
is Montgomery Ward & Co , 114 NLRB 1155
1892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
physical isolation, and separation of managerial hierarchy. On these
basic criteria, the contrasts accentuated by this record could hardly
be more pronounced. Indeed, the tannery workers earn their liveli-
hood in an industry totally different from that of the remaining
employees of the Company.
Unlike the bulk of the employees who work at straight shoe manu-
facturing, the tannery workers soak, wash, and unhair hides; using
large vats, they render the hides with chemicals ; and then they lubri-
cate the leather, and split, buff, sort, roll, and bale it. This is a type of
work that bears no relationship to the cutting of leather into models
and stitching of shoes. The basic tannery process, precisely described
in this record, is a traditionally independent industry which has long
been recognized, in many other areas of governmental concern, as a
separate and distinct form of work.ls Necessarily, the job classifica-
tions are different, the danger to the employees-and consequent
accident rate-is higher, and the physical conditions under which they
work are totally unlike those prevailing throughout the Company's
other operations. It goes without saying that the training, experi-
ence, and skill required for this type of work are also completely
different from those in the shoe manufacturing plants. It is because
the very purpose of collective bargaining is to establish the ground
rules of employment as they pertain to the foregoing elements of
employment, that these factors are the most determinative of unit
arrangements.
The entire tannery operation is carried on in 8 buildings clustered
within a 440-yard area in the City of Endicott. Here all the approxi-
mately 1,500 employees who would now bargain collectively with the
Company are centered. The remainder-totaling over 13,500-are
spread over a 4-city area, in 35 to 40 plants. Two of these cities .. .
Owego and Binghamton-are almost 20 miles apart. The basic con-
cept of community of interest in working conditions-the essential
common denominator for a bargaining unit-is strained if the right
of tannery employees in Endicott to engage in collective bargaining
must await a like pleasure of shoemakers in Binghamton.
The distinctive and specialized type of work performed by the tan-
nery employees quite naturally explains the completely separate
supervision of the tannery. Upper leather operations, occupying'
3e For example , see wage orders issued under the Walsh -Healey Public Contracts Act
(41 U. S C. 35-45 ) : the leather manufacturing industry ( defined as including the manu-
facture of tanned leather ), 41 CFR ( Cumulative Supplement ) Sec.. 202 42, amended 21
F R 6750 and 21 F. R . 10500 ( effective October 7 , 1956 ), and the shoe manufacturing
and allied industries ( confined to footwear ), 41 CFR Sec . 202.8, amended 21 F. R 6750
and 21 F R. 10500.
See, also , Standard Industrial Classification Manual, Vol. 1, Manufacturing Industries,
Part I , Bureau of the Budget , November 1945; industry No 3111 ( leather • tanned, cur-
ried and finished ), and industry No. 3141 (footwear , except rubber ). These same industry
classifications are used by the Department of Commerce , Bureau of the Census, 1954
Census of Manufacturers , Bulletin MC-31A.
ENDICOTT JOHNSON CORPORATION 1893
almost 7 of the 8 buildings , is under a general manager, an assistant gen-
eral manager , and various superintendents under them. The sole
leather part of the tannery has a separate superintendent . The general
manager of upper leather and the single superintendent of sole leather
are both directly responsible to 1 of the 2 vice presidents of the Com-
pany. Thus, management and control of the , tannery business are
completely divorced from the remainder of the widespread operation.
The two segments meet only at the very peak of the overall organiza-
tional chart. That such complete management insulation of one
distinctive part of a Company 's business is among the most persuasive
indicia of separate unit appropriateness has been said too often by
this Board to require citation . This, because collective bargaining
means negotiations with pertient and responsible management.
Another important factor on unit issues is the matter of interchange
and transfer of employees between the two groups in question. Al-
though this record includes ,over 2,000 pages of testimony and very
many carefully prepared company exhibits , there is a minimum of
information respecting transfers in or out of the tannery group. The
Company showed that in a single year there were over 7,000 loans of
employees-for periods of 1 hour to 2 weeks-among the almost 40
plants. Strangely , however , we do not know how many of these were
in or out of the tannery . Absent such figures, which would be the'
only pertinent ones, the imposing number of 7 ,000 loses all meaning.
Instead, we can reasonably infer that the bulk of such temporary
transfers were within the same classifications in different plants, for
a delicate sewer of dancing pumps is hardly likely to substitute, even
temporarily, for a workman who scrapes flesh from half-tanned
hides. Apart from broad unsupported assertions which abound in the
record, the only affirmative evidence on the subject of interchange is
that 11 employees now work part time in the tannery and part time in
the shoe factories , and that over a 1-year period 10 others worked a
full night shift in the tannery and part time days in shoes . With the
unit requested totalling 1,500, these 21 fade into virtual insignificance.
Despite the Company's maximum effort to show overall integration, a
fair statement , on this record , is that there is no interchange or trais-
fer of employees worth mentioning with respect to tannery operations.
Finally, the Company relies heavily upon certain minor matters,
which are the same throughout its far-flung business , as further rea-
sons why the tannery group should not be permitted to engage in
collective bargaining by' themselves . Some of these clo pertain to
conditions of employment , Which is our only concern in making unit
determination . For example , a central office handles hiring, approves
extended sick leave, and records terminations . There is a company-
wide bonus plan equal for all employees ; vacations , holidays and
hours are uniform; and wage increases have been companywide. But
1894 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
most of these minor matters are regularly handled uniformly when
there is no collective bargaining anywhere throughout a company, as is
now true here. There is also much evidence showing that all em-
ployees are given legal assistance; that they swim, play golf, and en-
joy other recreational activities in the same manner; and that the
Company supplies all its workmen equally with banking facilities,
shopping markets, and restaurants. The record could as well have
been spared all evidence on these diversified 'aspects of life, and the
majority errs in relying upon them as further reason to dismiss the
petition,' for the realities of collective bargaining are not concerned
with social graces.
In sum, the material factors point clearly to the most marked dif-
ferences in kind of work, physical surroundings and problems, skill
and training, complete physical isolation of the tannery which is
usually an independent industry, from the 30 or so shoe plants, manage-
ment and control from top to bottom entirely divorced from the shoe
business, and practically no interchange or transfer of employees in
or out of the tannery business. To repeat, the issue is not whether
a companywide unit would be appropriate, nor whether the tannery
must necessarily be a separate unit and only a separate unit. Rather,
we are only called upon to say whether the tannery is an appropriate
bargaining unit notwithstanding the fact that, under other circum-
stances, it could also form a part of a larger unit." Against the criti-
cal facts set out above, the few minor matters that point to the ap-
propriateness of a larger unit are hardly enough to preclude the
statutory right of these 1,500 employees to practice the procedures of
collective bargaining guaranteed by the statute.
These distinguishing features, in terms of employment conditions,
of the tannery unit also deprive the Company's extent of organization
argument of all persuasion. Where, as here, the limited group of em-
ployees in the bargaining unit involved are joined by a special com-
munity of interest, the scheme of the statute is not to deny them a
separate unit merely because their union might also have sought to rep-
resent a more inclusive group. Thus, a unit of professional employees
is appropriate, despite the fact that their union fails to win majority
status in a production and maintenance unit in a simultaneous elec-
tion. Moreover, the Board regularly grants craft units, although the
union involved at other times asks for, and wins, companywide units.18
In neither case is the extent of organization argument less applicable
than here. If anything, this tannery unit is quite comparable to a
special craft group, for the record also shows that in this industry
there have long existed labor organizations devoted to the representa-
17 Burrus Mills, Inc., 116 NLRB 384
Is Hawley-Hoops, Inc., 115 NLRB 1236.
WILNER WOOD PRODUCTS CO. 1895
tion of tannery or leather workers, as well as employer organization
consisting of tannery operators.'9
A final consideration justifying establishment of a tannery unit
today is that there is no existing pattern of collective bargaining
units which would be disrupted. Indeed, the only substantial collec-
tive bargaining that has occurred among the employees of this Com-
pany covered a period of 5 years between 1942 and 1947 and was limited
substantially to the tannery portion of its business. So far as the
record shows, that bargaining ceased not because it was unsuccessful
or not conducive to peaceful labor management relations, but because
the union then involved, not a party of this proceeding, failed to
satisfy the filing requirements set out in the 1947 amendments to the
statute. We see no reason why such bargaining should not be per-
mitted to resume, if the tannery employees so desire.
As to other issues in the proceeding, we concur with the majority
opinion.
19 The Board has already recognized , in examining the overall operations of this same
company, that the distinctive characteristics of a separate industry operation suffice to
support a limited bargaining unit, when it established a unit for its rubber production
employees . In Endicott Johnson Corporation, 57 NLRB 1473 , 1476, the Board said :
While highly integrated with shoe factories , the Company , to all intents and pur-
poses , operates a separate rubber production business.
Wilner Wood Products Co. and Boot & Shoe Workers Union,
AFL-CIO, Petitioner . Case No. 1-RC-4812. May 31,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Francis V. Paone,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Murdock, Rodgers, and Bean].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer is engaged in the manufacture of wood heels for
women's shoes. Its main plant is located in Norway, Maine. It also
117 NLRB No. 245.