Sbicca, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1941

30 N.L.R.B. 60 (N.L.R.B. 1941)

In the Matter of SBICCA, INC., and UNITED SHOE WORKERS OIL
AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZA-
TIONS and BOOT AND SHOE WORKERS' UNION, LOCAL No. 141, AFFILI-
ATED WITH THE AMERICAN FEDERATION OF LABOR, PARTY TO THE
CONTRACT.
Cases Nos. C-1514 and B-1687.-Decided March 5, 1941
Jurisdiction : shoe manufacturing industry.
Unfair Labor Practices
In General: employer not responsible for activities of supervisory employee where
no evidence that such activities reflect the desires of the employer ; employer
not responsible for activities of employee upon its premises where no showing
that this freedom was not granted to a rival union.
Interference, Restraint, and Coercion:, breach of union contract held not to
constitute interference, restraint, or coercion ; charges of, dismissed.
Discrimiviation: refusal pursuant to valid closed shop contract to. reinstate
employees who were on strike held not a discrimination ; charges of, dis-
missed.
Collective Bargaining: employer held not to have refused to bargain collec-
tively where the union was not justified in relying upon an earlier proof of
majority.
Practice and Procedure : complaint dismissed. _
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; closed-shop contract or renewal
thereof no bar to, when made after notice of representation claim of rival
union; election necessary.
Unit Appropriate for Collective Bargaining : production employees exclusive of
-supervisory and clerical employees ; stipulation as to; unit clarified by in-
clding two working foremen where both unions admit them to membership.
Mr. Joseph F. Castiello, for the Board.
Mr. John Garaguso, of Philadelphia, Pa., for the respondent.
Syme cC Simons, by Mr. Benjamin Simons and Mr. Maurice Abrams,
of Philadelphia, Pa., for the Boot and Shoe Workers.
Mr. Leo Goodman, of Washington, D. C., for the United.
Miss Charlotte Anschuetz, of counsel to the Board.
DECISION ORDER
AND '
DIRECTION OF-ELECTION
STATEMENT OF THE CASE
On July 8, 1939, United Shoe Workers of America, affiliated with
the Congress of Industrial Organizations, herein called the United,
30 N. L. R. B., No. 11
60
SBICCA, INCORPORATED 61
filed with the Regional Director for the Fourth Region (Philadel-
phia, Pennsylvania) charges alleging that Sbicca, Inc., Philadelphia,
Pennsylvania, herein called the respondent, had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On July 10, 1939, the United- filed with the Regional Director
a petition alleging that a question affecting commerce had arisen
concerning the representation of employees of the respondent and
requesting an investigation and certification of representatives pursu-
ant to Section 9 (c) of the Act.
On October 21, 1939, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act, Article
III, Sections 3 and 10 (c) (2), and Article II, Section 36 (b), of Na-
tional Labor Relations Board Rules and Regulations-Series 2, con-
solidated the complaint and representation cases and ordered the
Regional Director to conduct an investigation of representatives and
to provide for an appropriate hearing upon due notice.
Upon charges and amended charges duly filed by the United, the
Board, by the Regional Director, issued its complaint dated December
15, 1939, against the respondent alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)
and (7) of the Act. Copies of the complaint, notices of hearing on
the petition and on the complaint, and Order of Consolidation were
duly served upon the respondent, the United, and Boot & Shoe Work-
ers' Union, Local 141, herein called the Boot & Shoe Union, party to a
contract with the respondent.
With respect to the unfair labor practices, the complaint alleged in
substance (1) that on July 14, 1938, a majority of the respondent's
employees in an appropriate unit designated the United as their rep-
resentative for purposes of collective bargaining and that on May 27,
1939, June 3, 1939, and at all times thereafter the respondent refused
to bargain with the United as the representative of the employees in
such unit; (2) that the respondent encouraged and gave assistance to
the Boot & Shoe Union by permitting Guido Gargani, an employee,
to solicit memberships therefor on the respondent's property during
working hours, by refusing to discharge Gargani at the request of the
United and pursuant to an existing contract between the respondent
and the United, and by soliciting memberships in the Boot & Shoe
Union and discouraging membership in the United through certain
supervisory employees; (3) that as a result of said conduct of the
respondent the United called a strike at the respondent's plant on or
about July 5, 1939; (4) that thereafter, on July 6, 1939, the respond-
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent entered into a closed-shop contract with the Boot & Shoe Union
although said union did not represent an uncoerced majority of the
respondent's employees within the meaning of the-Act; and (5) that
the respondent performed the terms and conditions of the contract
with the Boot & Shoe Union, and thereby discriminated in regard to
the hire and tenure of employment of 18 named employees. The re-
spondent filed an answer to the complaint denying that it had com-
mitted any unfair labor practices and alleging that the United had
ceased to represent a majority of the respondent's employees in the
appropriate -unit after July 6, 1939, and that the strike called by the
United on July 5, 1939, was in violation of the then existing contract
between the respondent and the United.'
Pursuant to notice, a hearing was held in Philadelphia, Pennsyl-
vania, on January 11, 12, 15, 16, 17, and 18, 1940, before William B.
Barton, the Trial Examiner duly designated by the Board. The
Board, the respondent, and the Boot & Shoe Union were represented
by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. During the
course of the hearing, counsel for the Board moved to dismiss the com-
plaint as to Lena Ebner. This motion was granted. At the close
of the Board's case the respondent moved that all testimony given in
regard to Meyer Rubonoff and all others named in the complaint who
did not appear to testify be stricken on the ground that all testimony
in respect to them was hearsay. The Trial Examiner reserved ruling
on this motion and denied it in his Intermediate Report. At the close
of the entire case the Boot & Shoe Union moved that it be certified as
the exclusive bargaining representative of the employees of the re-
spondent. Ruling was reserved upon this motion. The Boot & Shoe
Union moved to dismiss the petition for investigation and certification
filed by the United. The Trial Examiner reserved ruling upon this
motion . The Board hereby denies both motions.
At the close of the case, the respondent moved to dismiss the
complaint in its entirety, for want of sufficient proof of the allega-
tions thereof, and on the ground that the respondent' s acts were
lawful by virtue of a valid closed-shop agreement. The Trial Ex-
aminer reserved ruling on this motion and denied it in his Interme-
diate Report. During the course of the hearing, the Trial Examiner
made rulings on other 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.
1 Pursuant to permission granted by the Trial Examiner , the respondent filed its answer
to the complaint after the close of the hearing.
SBICCA, INCORPORATED 63
On March 27, 1940, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties. The
Trial Examiner therein found that the respondent had engaged in
unfair labor practices affecting commerce within the meaning of
Section. 8 (1) and (3), but had not refused to bargain with the
United within the meaning'of Section 8 (5) of the Act. He recom-
mended that the respondent cease and desist from the unfair labor
practices, cease recognizing the Boot & Shoe Union, cease giving
effect to the contract of July 6, 1939, with the Boot & Shoe Union,
and reinstate with back pay' all employees named in the complaint
with the exception of Ebner.2
On April 8, 1940, the respondent requested oral argument before
the Board. On May 10, 1940, the respondent and the Boot & Shoe
Union each filed exceptions to the Intermediate Report, briefs, and
again requested oral argument. On May 14, 1940, pursuant to notice,
a hearing was held before the Board at Washington, D. C., for the
purpose of oral argument. The respondent, the United, and the
Boot & Shoe Union appeared by counsel and participated in the-
oral argument. The respondent and the Boot & Shoe Union also
submitted briefs in support of their respective positions. The Board
has considered the exceptions and briefs and, save as they are con-
sistent with the findings, conclusions, and order below, finds the
exceptions to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Delaware corporation with its principal place of
business in Philadelphia, Pennsylvania, is engaged in the manufac-
ture, sale, and distribution of women's shoes. The raw materials used
by the respondent consist of threads, fabrics, hides, dyes, waxes, and
rubber cements. , During 1938 the respondent purchased raw materials
valued at approximately $40,000. Approximately 85 per cent of such
raw materials were obtained from States other Phan Pennsylvania.
During the same year, 95 per cent of the respondent's finished,prod-
ucts of the approximate value of $140,000 were sold and shipped
to points outside Pennsylvania. The respondent's gross volume of
business during 1938 was $150,000.
II. TIIE ORGANIZATIONS INVOLVED
United Shoe Workers of America, Philadelphia District, is a labor
organization affiliated with the Congress of Industrial Organiza-
2 The complaint was dismissed as to Ebner.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lions, herein called the C. I. 0., admitting to its membership pro-
duction employees of the respondent, exclusive of supervisory and
clerical employees.
Boot & Shoe Workers' Union, Local No. 141, is a labor organization
affiliated with the American Federation of Labor admitting to its
membership production employees of the respondent, exclusive of
supervisory and clerical employees.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In the spring of 1938 the United and the Boot & Shoe Union
began to organize the respondent's employees. On July 13, 1938,
the respondent entered into a contract with the Boot & Shoe Union.
The United thereupon filed a petition with the Board for an investi-
gation and certification of representatives and on the following day
called a strike of employees in the plant. A few hours later the
Boot & Shoe Union and the United agreed to a consent election
to be held by the Board and stipulated that "if the United Shoe
Workers of America should win the election the agreement entered
into between the Boot & Shoe Workers' Union, Local #141, affiliated
with the A. F. of L., and the Company on July 13, 1938, will be
void and'of no force or effect," and that the respondent would bar-
gain with the union chosen by a ,majority of the employees in the
appropriate unit.
The consent election, held July 14, 1938, resulted in 27 votes for
the United and 21 votes for the Boot & Shoe Union in a unit consist-
ing of 52 employees. Pursuant to the agreement, the respondent
and the United on July 26, 1938, executed a written contract for
1 year covering wages, hours, and conditions of employment and
providing for a closed shop. It was agreed to arbitrate "all matters
of discussion" under the contract, and that there would be no strikes,
stoppages, or lock-outs throughout the duration of the contract.
This contract continued in force until July 6, 1939, when, under cir-
cumstances described hereafter, the respondent entered into a closed-
shop agreement with the Boot & Shoe Union.
B. Alleged interference, restraint, and coercion
In January 1939 Guido Gargani, a member of the United who
was an edge setter and trimmer employed by the respondent, dis-
puted with Louis Di Francesco, shop chairman for the United, con-,
cerning overtime work. Gargani testified that on one occasion
he was reprimanded at the instance of Di Francesco by Tony Dol-
ceamore, who had a position corresponding to plant superintendent,
for working 10 minutes overtime in violation of a provision of the
SBICCA, INCORPORATED 65
contract between the respondent and the United. Not long there-
after Gargani was summoned to the shop one Saturday morning
to finish a special pair of shoes which, were to be sent out immedi-
ately. His remuneration for these shoes, according to his customary
piece-rate scale, amounted to 51/2 cents. Since his carfare to the
plant amounted to 19 cents he requested permission of both the
respondent and the United to work for 2 hours. Di Francesco
refused to grant such permission and Gargani accused him of work-
ing overtime while not permitting the other employees to do so. Di
Francesco admitted on the stand that he often worked after regular
working hours. Gargani testified that he resented Di Francesco's
behavior, and that he told him he was going to lead a fight against
the C. I. 0. single-handed.
In April 1939 Gargani went to Michael Tesoro, eastern representa-
tive of the Boot & Shoe Union, told him that hd and others in the
plant were "disgusted" with the United, and that he was confident
that he could "make them sign" for the Boot & Shoe Union.3 Tesoro
gave him 50 of the following pledge cards :
We'the undersigned, employees of the Sbicca Shoes Inc., hereby
serve notice upon the firm not to make any deductions from our
pay, for dues or assessments of any kind to be paid to the United
Shoe Workers of America, C. I. 0.
Further, we no longer desire to have the U. S. W. of America,
C. I. 0., represent us for the purpose of collective bargaining.
Further, we desire to have the Boot & Shoe Workers Union,
A. F. of L. represent us for the purpose of collective bargaining
with our employer and authorize said Union to enter into an
agreement with the above firm.
Name ------------------------------
Address---------------------- ------
Gargani distributed these cards among his fellow worker's, and urged
them to join the Boot & Shoe Union.' He engaged in these activities
for the most part in the washroom and during the lunch hour. Two
witnesses testified that Gargani stopped each of them during work
hours as they passed his table and solicited them to join the Boot &
Shoe Union. Twice a week he, saw Tesoro and gave him the cards
that had been signed.
The complaint alleges that Gargani's activity was conducted with
the "knowledge and/or consent and/or acquiesence of the respondent's
' At no time did Gargani lodge a complaint with the United nor did he ever formally
resign from-it, although he signed a pledge card for the Boot & Shoe Union dated May 12,
1939. In February or March 1939 , at a time subsequent to the quarrel with Di Francesco,
Gargani was elected vice president of the Philadelphia local of the United. He voiced no
objection either to the nomination or the office
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foremen and agents" and that the respondent thereby interfered with,
restrained, and coerced its employees in their choice of a bargaining
representative. The Trial Examiner found that both Frank Sbicca,
the respondent's general manager, and Tony Dolceamore, who as we
noted above had a position equivalent to plant superintendent, were
told about these activities of Gargani by Di Francesco and that nothing
was done to stop him.4 Whether or not the respondent had this knowl-
edge, however, there is nothing in the record to indicate that the
United was not permitted similar freedom even though the respondent
had a rule against talking during working hours. Under the circum-
stances we are of the opinion that Gargani's activities in behalf of the
Boot & Shoe Union are not attributable to the respondent.5
The complaint alleges that supervisory employees of the respondent
aided in organizing the Boot & Shoe Union. There was testimony
that Louis Katoff,e alleged by witnesses to be the fitting-room foreman,
distributed pledge cards similar to those which Gargani distributed.
There was also testimony that he made statements intended to coerce
the employees into joining the Boot & Shoe Union and resigning from
the United. Thus Lundy, an employee, testified that Katoff "advised
me to sign up `for the peace of the family, because the boss wants it;
he will be more satisfied if the Boot & Shoe came in."' At another
time Katoff was alleged by Mary Blier, another employee, to have
said: "Read this paper (a pledge card) and make sure that you sign
it, because if you don't sign it you will lose your job." Katoff him-
self signed a pledge card sometime before June 27, 1939., He denied,
however, that he had engaged in soliciting membership for the Boot &
Shoe Union. We find, as did the Trial Examiner, that Katoff's testi-
mony that he did not engage in union activity is unconvincing in the
face of the clear and positive testimony of Board witnesses. Vincent
Furia, who witnesses testified, was the packing-room foreman, signed
a Boot & Shoe pledge card about 10 days earlier. There is no evidence
of other activity on his part.7
/
IIt should be noted that during this period the United took no steps to discipline
Gargani for his dissidence.
b See Matter of Aeolian-American Corporation and Amalgamated Piano Workers of
Amer,cd, S N. L. R B 1043; Matter of National Supply Company and Steel Workers Or-
ganizing Committee, 16 N. L. It. B 304 Cf Matter of Servel, Inc. and United Electrical,
Radio and Machine Workers of America, Local No. 1002, 11 N L, It. B. 12951; Matter of
American-West African Lanes, Inc. and Martine Engineers' Beneficial Association, 21
N L R B 691. _
6 Also referred to in the record as Louis Katofsky
'There was further testimony, which the Trial Examiner credited, with respect-to l s o
anti-union statements made by Arthur Sbicca, a salesman who is vice president of the
respondent and a son of Frank Sbicca. Max Lindy, an employee, testified that he over-
heard Sbicca disparage the-United and Ann Marie McColl testified that during a discussion
with her over piece rates, Sbicca cursed the United and observed that conditions in the
shop would be improved after the expiration of the respondent's contract with the United.
We are of the opinion that these statements, standing alone, are insufficient to support a
finding of interference, restraint, and coercion in violation of the Act
SBICCA, INCORPORATED 67
The respondent denied that Katoff and Furia are supervisory em-
ployees and asserted that therefore it is not responsible for their
activity. Katoff and Furia were both listed, along with Harry Maloy
and Dolceamore, as "foremen" on a pay-roll sheet of June 29, 1939,
prepared by the respondent for the Board prior 'to the hearing. The
respondent alleged that its office clerk had erred in designating these
men as foremen, that of this group Dolceamore alone was a foreman,
and that the rest were "working foremen." All were known as "fore-
men" by the employees. Frank Sbicca described Katoff as a working
foreman or "head" in the fitting-room department in which approxi-
mately 20 persons are employed. His main duty was to make the
sample shoes and then to instruct the workers in manufacturing them.
Furia, Sbicca testified, was the working foreman or "instructor" over
the five or six employees in the cleaning and packing department where
the shoes were given their final touches and then shipped out. Neither
Katoff nor Furia had the power to hire or discharge, except in so far
as either might report lack of work, need for additional work, or work
improperly done to Sbicca, or Dolceamore. Both were paid a weekly
salary, whereas the majority of employees were working on,a piece-
work basis. We find that both Katoff and Furia are supervisory
employees.8
- Under normal circumstances supervisory employees are not, by
virtue of their position, precluded from joining labor organizations
or otherwise exercising the rights guaranteed employees by the Act.
Neither the right of supervisory employees to engage in concerted'
activities nor their eligibility to membership in a union, however,
relieves an employer of responsibility for the acts of such employees
which are designed to or have the effect of enlisting the employer's
prestige on one 'side of a representation dispute.' So far as the record
discloses, Furia did nothing more than join the Boot & Shoe Union.
We are not satisfied that his union membership was either intended
to or had the effect of coercing other employees in their choice as
between the United and the Boot & Shoe Union. Nor are we satisfied
sMatter of The Serrick Corporation and International Union, United Automobile
Workers of America, Local No. 459, 8 N. L. R B 621 , enf'd , International Association of
Machinists , et at v N L R B , 311 U S 72 , aff'g 110 F ( 2d) 29 (App D. C ), rehearing
denied , 311 U S 729 , Matter of Borden Mills, Inc and Textile Workers Ordani.inq Conti-
mittec, 13 N L R. B 459 Cf Matter of Monteith Brothers Company, a corporation and
United Automobile Workers of America , affiliated with the C . 1 0, 24 N. L . R. B 812
' Matter of Ford Motor Company and United Automobile Workers of America, Local No.
1925, 23 N L R B, 342; Intel national Association of Machinists , et al, v N. L R B ,
Sit Ti S 72, aff 'g 110 F ( 2d) 29 (App D C ), enf'g Matter of The derrick Corporation
and International Union, United Automobile Workers of America, Local No 459, 8
N L R B 621, rehearing denied , 311 U. S 729 ; Matter of Ward Baking Company and
Committee for Industrial Organization , 8 N. L. R B . 558; Matter of Tennessee Copper
Company and A. F of L. Federal Union No. 21164, 8 N L R. B 575 ; 9 N. L R B. 117;
Matter of Mt Vernon Car Manufacturing Company and Local Lodge No. 1756, Amalgamated
Association of Iron, Steel , and Tin Workers of North America, affiliated with the Commit-
tee for Industrial Organization , 11 N. L R. B 500.
440133-42-A'ol 30--6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the basis of the entire record that Katoff 's activities on behalf of
the Boot & Shoe Union were unlawful by virtue of his status as a
supervisory employee. The record shows that Katoff was a member
of the United before he signed the pledge card for the Boot & Shoe
Union. Joseph McLaughlin , the business agent of the United, testi-
fied that Katoff had joined the United when he was "just onQ of the
production ' workers," and that when he later attained the status of
foreman he • continued his membership although he never attended
meetings nor participated in elections . McLaughlin further testified
that foremen were not eligible to membership in the United , but that
dues were still checked off for Katoff , and that they "just rode along
that way" because Katoff raised no objection . On the other hand,
McLaughlin admitted that Katoff was never notified that he had lost
his eligibility to membership in the United or informed that-he was
no longer a member. Katoff himself denied , as we have observed
above, that he was ever promoted from his original position with the
respondent as an ordinary employee in the fitting room, and asserted
that he was a member of the United "to the last until the A . F. of L.
went in ." 10 The United took no steps to expel Katoff despite his-
activities , although it expelled Gargani, as described below. Thus
Katoff, while still maintaining his membership in the United , engaged
in activity on behalf of the Boot & Shoe Union. Under these circum-
stances and in the absence of evidence that his activities reflected the
desires of the respondent , we believe that the record affords insuffi-
cient' basis for imputing Katoff's activities to the respondent.1'
C. The alleged refusal to bargain
1. The appropriate unit
The complaint alleges and the parties stipulated that the re-
spondent's production employees, exclusive of supervisory and clerical
employees, constitute a unit appropriate for the purposes of collective
bargaining. We see no reason to alter this unit except to clarify the
position of the "working foremen," Katoff, Furia, and Maloy 12 Since
the Boot & Shoe Union accepted pledge cards from two of them as
shown above, it is apparent that this labor organization considers work-
ing foremen eligible as members. We have found, moreover, that
Katoff was permitted to continue his membership in the United after
10 July 6, 1939.
n Cf. Matter of Crown Central Petroleum Corporation and Oil Workers International
Union, Local No 227, 24 N. L R B 217, wherein supervisory employees of equal rank
took an active part in rival unions.
12 The collective bargaining contracts in evidence do not show the precise unit covered
thereby, although it is apparent from the record that they covered the employees in the
unit stipulated herein.
SBICCA, INCORPORATED 69
his promotion to the position of working foreman: In addition, counsel
for the United stated in oral argument that the sole basis of member-
ship in the United is the "employment in the industry in a productive
capacity" and indicated that working foremen were eligible for mem-
bership. It is therefore clear that the working foremen at the re-
spondent's plant are admitted to membership in both the Boot & Shoe
Union and the United. We shall therefore include them within the
appropriate unit.
We find that all production employees of the respondent, including
working foremen, but excluding supervisory and clerical employees
at all times material herein constituted and that they now constitute a
unit appropriate for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other conditions of
employment, and that said unit insures to employees of 'the respondent
the full benefit of their right to self-organization and to collective bar-
gaining and.otherwise effectuate the policies of the Act.
2. Alleged representation by the United of a majority in the
appropriate unit and the alleged refusal to bargain
The complaint alleges that the respondent refused to bargain col-
lectively with the United on or about May 27, 1939, June 3, 1939, and
thereafter.
The contract between the United and the respondent of July 26,
1938, provided that it should be effective for I year from date, and
continue thereafter from year to year unless either party gave written
notice to terminate,' change, or modify at least 60 days prior to the
expiration date. In accordance with this provision McLaughlin on
May 25, 1939, notified the respondent that the United wanted certain
changes made in the agreement and asked for a conference. Pursuant.
to the request of the United a conference was held on May 27, 1939, at
which the proposed changes were discussed and agreed upon. No
question as to the majority representation of the United was raised.
Sbicca announced, however, that he could not sign any agreement
before consulting the board of directors and a further conference was
therefore arranged for June 3, 1939. At this latter time-the United
presented for adoption a new contract which was based on the negotia-
tions of the previous conference. Sbicca refused to sign on the ground
that he still had not received a definite answer from his board of
-directors, and he questioned the United's majority, saying : "Maybe the
people in the shop do not want your union; maybe they want some
other union." The United offered no proof of majority. Sbicca then
,asserted that since the existing contract did not terminate until July
26, 1939, he intended to take no steps until that time.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The last conference between the respondent and the United was held
on June 15, 1939, when McLaughlin summoned a group of United
members, including the shop committee, and without a previous ap-
pointnment called upon Sbicca in his office. They told Sbicca that the
employees were restless and discontented because the contract had not
yet been signed, and asked him once more to sign it. Sbicca refused
and reiterated in explanation of his refusal the reasons given at the
previous conference.
The complaint alleges that a majority of the employees in the
appropriate unit had designated the United as their representative
on or about July 14, 1938 (in the consent election afore-mentioned)
and that the United has since remained the representative for col-
lective bargaining of a majority of- such employees. The United
claimed that th-s majority still existed on June 3, 1939. It offered
no proof of its membership as of that date, although its officers testi-
fied that there had been no withdrawals, resignations, supensions, or
expulsions since the date of the consent election. On the other hand
there is evidence that a number of employees had transferred their
allegiance from the United to the Boot & Shoe Union, and that by
June 12 the Boot & Shoe Union had presented its request to the
respondent for collective bargaining.
Where a determination of an exclusive bargaining representative
has been made, such determination may be relied upon and is not
subject to challenge by the parties so long as the representative is
ready and willing to bargain collectively and to establish contractual
relations with the employer in behalf of those represented, and a,
reasonable.period for it to do so has not elapsed. 13 1 Under the circum-
stances described above, however, it is apparent that the United was
not justified in relying upon the results of the 1938 consent election
in support of its asserted right to exclusive representation of the
employees nor was the respondent unreasonable in insisting upon
proof of such representation: 'We conclude that the evidence does
riot support a finding that the respondent refused to bargain collec-
tively with the United, and we shall dismiss the complaint in this
regard.
D. The strike
On June 12, 1939, at the monthly union meeting of the "shop crew"
of the respondent at the United headquarters, the members who
-%-,ere present held a thorough discussion concerning the results of the
conferences with Sbicca and concerning the activities of Gargani and
"Cf. Matter of Pacific Greyhound Lines and Brotherhood of Electric Trainmen, 22
N. L R B 111; Matter of Whittier Mills Company and Silver Lake Company and
Textile 1Vorkers Organizing Committee, 15 N L. R B. 457; Matter of Clark Shoe Company
and United Shoe Workers of America, 17 N. L. R. B. 1079.
SBICCA, INCORPORATED 71
KatofF in soliciting memberships for the Boot & Shoe Workers. A
motion was passed at this meeting authorizing the shop committee 14
of the United to request Gargani to stop his activities and if this was
unsuccessful to file charges against him with the grievance board of
the Philadelphia district of the United, known as the, grievance
committee. The shop committee sent Gargani a letter by registered
mail on June 15, 1939, requesting him to appear before it on June 19,
1939. He failed to appear, and was then summoned on June 20, 1939,
to appear before the grievance committee. He failed also to appear
before this committee. On June 27, 1939, the grievance committee
took final action and Gargani was suspended from the United.'
On June 28, 1939, McLaughlin sent a letter to the respondent request-
ing Gargani's discharge in accordance with its contract of July 26,
1938, with the respondent, which provided for the employment only
of such persons as were members of the United in good standing
and that upon 48 hours' notice by the United to the employer the
latter would "discharge any worker not a member of the Union in
good standing." On the same day, June 28, the United membership
met and authorized the shop committee to call a membership meet-
ing on July 5, 1939, in the event that Sbicca refused to discharge
Gargani.
At no time from June 30 until July 5 was the United notified that
Gargani had been discharged. • On July 5, 1939, Gargani was seen at
work. McLaughlin testified that the members of the United deduced
that Gargani had not been discharged in accordance with their re-
quest and their contract. At 11 a. m. the members of the United
stopped their work and held a meeting in a hall about 4 squares from
the plant. They reviewed the negotiations with the respondent, its
refusal to sign the new agreement, and its alleged refusal to abide by
the contract and dismiss Gargani, and voted to strike until the respond-
ent should dismiss Gargani. Approximately 31 employees went on
strike immediately, and formed a picket line the following day.
The respondent contends that it did not refuse to discharge Gargani
in accordance with the request of the United. Sbicca testified that
upon receipt of the letter from the United he immediately explained
the letter to Gargani and said to him : "You have to leave the work."
Gargani thereupon spread this news among his friends in the plant,
and a few hours later a committee of employees approached Sbicca,
told him that they had been sent by the Boot & Shoe Union, that the
latter now represented a majority of the employees in the plant, and
that they would strike if Gargani were dismissed. Sbicca described
14 The shop committee consisted of five members employed by the respondent
16 The record does not disclose whether he was suspended at a membership meeting at
the recommendation of the grievance committee, or by direct action of the committee.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his position as being between two "firing lines" and testified that since
the 3-day holiday over the Fourth of July was imminent he decided to
do nothing with respect to Gargani until the plant, reopened on July,
5. Sbicca was not present in the plant on July 5 when the plant
opened after the holiday. On that day, as we have noted above, Gar-
gani returned to his work. He testified that Sbicca had discharged
him, but that members of the Boot & Shoe Union told him that he
could work and he did so.
The complaint alleges that by refusing to discharge Gargani the
.respondent interfered with, restrained, and coerced its employees in
the exercise of the rights as guaranteed by the Act. The Trial
Examiner' found, and we agree with his finding, that the respondent
discharged Gargani at the request of the United but thereafter allowed
him to continue work at the demand of the Boot & Shoe Union. It
would appear that the respondent thereby failed to fulfill a provision
of its contract with the United. We do not believe, -however, that in
the situation here present the breach of contract was intended to inter-
fere with, restrain, or coerce the employees in their organization activi-
ties or that the breach of contract had such effect.-
-It is contended that the strike was caused by unfair labor practices
on the part of the respondent. The causes of the strike are best enume-
rated in McLaughlin's own words, as follows :
We called this strike because of the fact that the company had
definitely been stalling on the renewing of the agreement; had
also been permitting this Gargani and Katoff to solicit member-
ship in the Boot & Shoe, and did nothing whatever when we
requested him, according to our contract, to stop this practice
on the part of one of these people.
We have found, however, that the respondent did not refuse to bargain
collectively with the representative of a majority of its employees in
the appropriate unit; that the respondent was not responsible for the
activities of Katoff, Furia, or Gargani; and that the alleged refusal
to discharge Gargani may have constituted a breach of contract, but
was not a violation within the meaning of the Act. We find that the
strike was not caused, either wholly or in part, by any, unfair labor
practices of the respondent., ,
E. The refusal to reinstate
On July 5, 1939, as described above, the members of the United
went on strike. On the following morning a picket line was formed
and was maintained'until July 20, 1939. Sbicca was notified of the
"Matter of Williams Coal Company and United Mine Workers of America, District
No. E3, 11 N. L. R. B 579.
SBICCA, INCORPORATED 73
strike and returned to the plant on July 6, 1939. Early in the morn-
ing of that day he was approached in his office by Tesoro, eastern
representative of the Boot & Shoe Union. Tesoro referred to an
unanswered letter he had sent Sbicca on June 12, 1939, in behalf of
the Boot & Shoe Union, in which he claimed that this labor organiza-
tion represented a majority of the respondent's employees and re-
quested that a contract be negotiated with it. He then handed
Sbicca a 'number of the pledge cards referred to above. Sbicca testi-
fied that he insisted upon counting the cards himself, and upon com-
paring the signatures with a weekly pay receipt sheet on which the
employees had signed their names. He counted 39 cards, and testi-
fied that after he compared the signatures he was satisfied that the
Boot & Shoe Union represented a majority of his employees. At
about 5 o'clock that same day, July 6, 1939, the respondent signed a
closed-shop agreement with the Boot & Shoe Union, providing inter
alia that "The Emjjloyer shall employ . . . only such workers who
are members of the Union in good standing."17
On July 20, 1939, the United called off the strike, and the 24 strikers
who still remained applied for reinstatement.'8 Seven of these were
reinstated immediately, and two were reinstated later. Two of the
group who were not reinstated were told by their respective foremen
at the time of their application that there was no work for them.
Nine of this group,1" after requesting ,Sbicca or some other super-
visory employee of the respondent for reinstatement, were referred
to Tesoro, who had negotiated the Boot & Shoe Union contract, on
the ground that all employees had to be members in good standing of
the Boot & Shoe Union-as a condition of employment. Tesoro told
them that there was no work for them but promised them placement
on a preferred list.20 None of them, however, was thereafter
reinstated.21
The cbmplaint alleges that the respondent entered into the closed-
shop contract with the Boot & Shoe Union at a, time when said union
was not the representative of the respondent's employees "within the _
meaning of Section 9 (a) and the proviso of Section 8, subdivision (3)
of the Act," and that the respondent, in observing and performing the
"The respondent adduced testimony to show that before signing the contract with the
Boot & Shoe Union, Sbicca sought to induce the United to call off the strike which the
respondent claimed was a breach of the contract between the United and the respondent.
We do not believe that this testimony, which was controverted by McLaughlin , is material
to the issues herein we note, however , as did the Trial Examiner, that if the strike was
in fact in violation of the contra t the violation was induced in part at least, by the
respondent 's violation in failing to discharge Gargani See subsection D, supra.
'g Seven strikers applied for and were given reinstatement before the end of the strike.
10 Five employees , the record shows, applied for reinstatement but did not testify at the
hearing. - '
20 Approximately 10 new employees had been hired during the strike
21 All employees who were reinstated became members of the Boot & Shoe Union.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms and conditions of the contract by refusing to reinstate 18 named
employees, discriminated in regard to their hire and tenure of employ-
ment to discourage membership in the United.
We have repeatedly held that the requirement of membership in
a particular labor organization as a condition of employment con-
stitutes an unfair labor practice, within the meaning of Section 8
(1) and (3) of the Act, unless the imposition and enforcement of the
condition are excused by the proviso clause of Section 8 (3).22 Ac-
cordingly the relevant inquiry is whether the respondent, in carrying
out the terms and conditions of the contract with the Boot' & Shoe
Union, proceeded within the framework of immunity afforded by this
proviso clause.
The proviso of Section 8 (3) of the Act provides that:
... nothing in this Act . . . shall preclude an employer from
making an agreement with a labor organization (not established,
maintained, or assisted by any action defined in this Act as an
unfair labor practice) to require as a condition of employment
membership therein, if such labor organization is the representa-
tive of the employees as provided in Section 9 (a), in the appro-
priate collective bargaining unit covered by such agreement when
made.
Section 9 (a) provides that:
Representatives designated or selected for the purposes of col-
lective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive representa-
tive of all the employees in such unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment.
We have found above that the Boot & Shoe Union was not assisted
by any action of the respondent defined in the Act as or constituting
thereunder an unfair labor practice, and it is not disputed that the
contract between the respondent and the Boot & Shoe Union covered
all the respondent's employees within the appropriate unit.
As we described above, there was uncontradicted testimony that
the Boot & Shoe Union submitted to the respondent its pledge cards
and that the, respondent, after checking the signatures' on the cards
with its pay roll and being satisfied that the Boot & Shoe Union repre-
sented a majority of its employees, negotiated and signed the con-
tract here in issue. At the hearing the Boot & Shoe Union submitted
in evidence 38 pledge cards. The Trial Examiner found that the Boot
22 See Matter of Rosedale Knitting Company and Rosedale Employees Association and
American Federation of Hosiery Worriers, party to the contract , 20 N. L R. B 326,
and cases therein cited.
SBICCA, INCORPORATED 75
& Shoe Union did not in fact represent a majority of the employees
in the appropriate unit on July 6, 1939 , basing his finding upon the
'June 29, 1939, pay roll which was the only pay roll in evidence. Ac-
cording to this pay roll, the Trial Examiner found 56 in the appropri-
ate unit by excluding the working foremen but including 2 workers
who, though not listed on the pay roll, were admitted by all parties
to have been employees . A check of the Boot & Shoe designations
against this pay roll reveals only-27 names , or less than a majority.
Two additional employees not on this list were mentioned by Tesoro
as having gone out on strike with the United and having returned to
work before the end of the strike , and approximately 20 names not
on the list appear on pledge cards of the Boot & Shoe Union, or as-
signatures of witnesses or approving employees on the July 6, 1939,
contract between the Boot & Shoe Union and the respondent. In
view of the state of the record , it is apparent that the - pay roll used
by the Trial Examiner does not comprise a full list of all who were
employees of the respondent on June 29, 1939.
We do not believe under the circumstances that the record 'affords
sufficient, basis for findijig that the Boot & Shoe Union did not in fact
represent a majority of the employees in the appropriate unit as
alleged in the complaint . We shall therefore dismiss the allegation
of the complaint that the respondent discriminated in regard to the
hire and tenure of employees within the meaning of Section 8 (3)
of the Act.
IV. THE QUESTION CONCERNING REPRESENTATION
The petition for investigation and certification of collective bargain-
ing representative was filed by the United on July 10, 1939. The con-
tract of July 6, 1939, between the respondent and the Boot & Shoe
Union terminated on July 6, 1940. Since this contract was executed
after the parties had notice of the representation claim of the United,
neither- the -contract nor any renewal thereof may operate as a bar
to the instant representation proceeding.23
We find that a question has arisen concerning the representation
of employees of the respondent.
V. 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 respondent,
described in Section I above, has a close, intimate, and substantial
23 Matter of Malone Bronze Powder Works, Inc. and Malone Aluminum Corporation and
Aluminum and Bronze Powder Workers Union No. 21211, affileated with the A . F. of L.,-
19 N L. R. B. 449.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
VI. THE DETERMINATION OF REPRESENTATIVES
Because of incomplete pay-roll data, the overlapping of nienlber-
ship between the United and the-Boot & Shoe Union, and the lapse
of time since the hearing herein, it is impossible to determine which
union now represents a majority of the respondent's employees. We_
find therefore that the question which has arisen concerning repre-
sentation can best be resolved by an election by secret ballot.
We shall follow our usual practice and direct that all employees
within the appropriate _unit who were employed by the respondent
during the pay-roll period immediately preceding the date of the
Direction of Election, including employees who did not work during
such pay-roll period because,they were ill or on vacation, and em-
ployees who were then or have since been temporarily laid off, but
excluding those who have since quit or been discharged for cause,
shall be eligible to participate 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. United Shoe Workers of America, Philadelphia District, affili-
ated with the Congress of Industrial Organizations, and Boot & Shoe
Workers' Union, Local 141, affiliated with the American Federation
of Labor, are labor organizations within the meaning of Section 2 (5)
of the Act. -
2. The operations of the respondent; Sbicca, Inc., Philadelphia,
Pennsylvania, occur in commerce within the meaning of - Section 2
(6) of the Act.
3. The respondent has not discriminated in regard to hire or ten-
ure of employment or any term or condition of employment, within
the meaning of Section 8 (3) of the Act.
4. The respondent has not refused to bargain collectively with
United Shoe Workers of America, within the meaning of Section 8
(5) of the Act.
5. The respondent has not interfered with, restrained, or coerced
its employees- in the exercise of the rights guaranteed in Section, 7
of the Act, within the meaning of Section 8 (1) of the Act.
6. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondent within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
SBICCA, INCORPORATED 77
7. All production employees of the respondent, including working
foremen, but excluding supervisory and clerical employees, constitute
a ,unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the National Labor Relations Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the complaint
against Sbicca, Inc., Philadelphia, Pennsylvania, be, and it hereby
is,, dismissed.
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 authorized by the Board
to ascertain representatives for purposes of collective bargaining with
Sbicca, Inc., Philadelphia, Pennsylvania, an election by secret bal-
lot shall be conducted as early as possible but not later than thirty
(30) days from the date of this Direction of Election under the direc-
tion and supervision of the Regional Director for the Fourth Region,
acting in this matter as agent for the Board, and subject to Article III,
Section 9, of said Rules and Regulations, among all production em-
ployees of Sbicca, Inc., Philadelphia, Pennsylvania, who were em-
ployed during -the pay-roll period immediately preceding the date
of this Direction of Election, including working foremen, 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 tem-
porarily laid off, but excluding supervisory and clerical employees,
and employees who shall have since quit or been discharged for cause,
to determine whether they desire to be represented by United, Shoe
Workers of America, Philadelphia Branch, or by Boot & Shoe Work-
ers' Union, Local No. 141, for the purposes of collective bargaining,
or by neither.
MR. EDWIN S. SMITH, concurring in part and dissenting in part:
I cannot agree that the respondent has not interfered with,
restrained, or coerced its employees within the meaning of Section
8 (1) of the Act.. The majority of the Board finds that Katoff is a
supervisory employee and that he has engaged in activities partisan
to one of two rival unions. I concur, but disagree with the finding
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, since Katoff's connections with the United had not been formally,
severed, the respondent is not to be held responsible for his activities
in behalf of the United's rival, the Boot & Shoe Union. Katoff joined
the United before his appointment as a working foreman; subse-
quently thereto he attended no meetings of the United nor did he
participate in any of its activities. No showing, moreover, is made
that Katoff participated actively in the affairs of the United even
before the promotion. Despite his status as foreman, however, he
solicited openly for the Boot & Shoe Union, coerced and intimidated
employees, and threatened them with discharge if they refused to
join the Boot & Shoe Union. These activities, occurring in conjunc-
tion with the activities of Arthur Sbicca, the respondent's vice presi-
dent,24 plainly demonstrated to the employees the partiality of the
respondent for the Boot & Shoe Union and indicated the undesir-
ability of continued membership in ' the United. I see no reason to
depart from the Board's normal holding under similar circumstances
that the respondent is responsible for the antiunion activities of its
supervisory employees.25 I would hold the respondent responsible
for the activities of Both Katoff and Arthur Sbicca.
Further evidence of, the support granted the Boot & Shoe Union
by the respondent is reflected by the respondent's refusal to abide by
its contract with the United and to discharge Gargani, and its haste
in concluding the contract with the Boot & Shoe Union even-before the
expiration date of the contract with the United. Under all the cir-
cumstances, I would find that the respondent assisted` the Boot & Shoe
Union, that therefore the contract with the Boot & Shoe Union is
invalid, and that the respondent, in relying upon this contract, unlaw-
fully refused reinstatement to, and discriminated against, the em-
ployees named in the complaint.
24 Footnote 7, supra.
25 Footnote 9, supra.