Shoe Corp. of America

National Labor Relations Board - Board Decisions

Apr 16, 1957

117 N.L.R.B. 1208 (N.L.R.B. 1957)

1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where a certification remains effective, the Board refuses to entertain
a petition by another union for a reasonable period after the certifica-
tion-usually a year-in order that the employer and the certified
employee representative may have that period of undisturbed collec-
tive bargaining.' This policy is inapplicable to cases like the present
one where no certificate is outstanding. The Board will, therefore,
in such cases, accept petitions filed shortly before the end of the 12-
month period, although the elections will not be held until the 12
months have elapsed.lo
The petition in the present case, however, was filed nearly 5 months
before the end of the 12-month period, and should therefore have been
dismissed as premature.ll On the other hand, the petition has been
processed, a hearing has been held, and the 12 months have now
elapsed. To dismiss the petition at this time would subject the Board
to an immediate repetition of the proceedings as a new petition could
be timely filed as soon as,a decision in this case issues. Under all the
circumstances, therefore, we shall direct an immediate election in
the present case as such election will, in any event, not be held within
the period prohibited by Section 9 (c) (3) of the Act.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer, as stipulated by the
parties, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of the Act :
All retail salesmen at the Employer's Cambridge, Massachusetts,
plant, excluding office clerical employees, guards, professional em-
ployees, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
9 Ray Brooks, et al . v N. L R. B., 348 U. S . 96; Kolcast Industries, 117 NLRB 418;
Remington Rand , Inc, 112 NLRB 1381.
io The Steckless Corporation, 115 NLRB 979 ; Koleast Industries , supra.
11 Entertaining a petition filed only about 7 months afttr an earlier valid election was
inconsistent not only with Board decisions but also with instructions which the Board
had sent to its Regional Offices regarding the timeliness of petitions in cases like the
uresent one.
Shoe Corporation of America and Local No . 413, International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, AFL-CIO, Petitioner. Case No. 9-RC-2840.
April 16,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the Act, a hearing
was held before Richard C. Curry, hearing officer. The hearing
117 NLRB No. 158.
SHOE CORPORATION OF AMERICA • 1209
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
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer. The Employer's contention that alleged
lack of compliance deprives the Petitioner of the status of a labor
organization is dealt with in the following paragraph.
3. The Employer would have the Board dismiss the petition, con-
tending that certain officials of the Petitioner are identified in its
constitution as "officers" but have not filed non-Communist affidavits
in compliance with Section 9 (h) of the Act and within the meaning of
the Board's Rules and Regulations, Section 102.13 (b) (3). The offi-
cials in dispute are : business representatives, delegates to central labor
bodies, delegates to conventions, and wardens. The Employer ap-
pears to have dropped a similar contention as to a position in the
constitution identified as "conductor." The record indicates that the
petitioning local has no bylaws of its own but operates pursuant to the
International constitution.
The hearing officer permitted the taking of testimony concerning the
provisions of the Petitioner's International constitution which refer
to the officials in question, and concerning the names of individuals
who have occupied such positions during the last year. He terminated
this phase of the testimony when the Employer sought to question the
Petitioner's witness concerning the duties of business representatives.
On the ground that the Board could take judicial notice of its own
records, the hearing officer rejected an exhibit offered by the Employer.
This is a letter to its attorney, dated September 4, 1956, written by the
Board's Regional Director for the Ninth Region, which states that
Local No. 413 of the Teamsters "is in complete compliance with Sec-
tion 9 (f), (g), and (h)" of the Act, lists the local officers as president,
vice president, secretary-treasurer, recording secretary, and three
trustees, and names the incumbents, stating that all had filed non-
Communist affidavits. The inference emphasized by the Employer is
that some individuals shown to have held the disputed positions of
business representatives, delegates, and wardens have not filed non-
-Communist affidavits. Granting that this is true, the question
whether all officers have in fact complied is not one which can be
raised in this proceeding, and hence not one in which testimony
directed to this question is admissible.
The Petitioner's constitution specifically designates 7 officers for its
local organizations, that is: president, vice president, secretary-
'treasurer, recording secretary, and 3 trustees, and only those. Admin-
istratively the Board has determined that these seven officers of the
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petitioning Local are the only officers and that they were in compliance
at the time this petition was filed. The Employer bases its argument
that the disputed positions are also officers on alleged ambiguities in
other sections of the constitution. Thus the question which the
Employer would litigate in this proceeding is not one of statutory
interpretation of Section 9 (h), but one of interpretation of alleged
ambiguities in the Petitioner's constitution. The question as to who
are constitutional officers under a union constitution for compliance
purposes can only be raised in an administrative proceeding directed
solely to inquiring into the compliance status of a union. Such ques-
tions are not litigable in representation and complaint proceedings.'
A question affecting commerce exists concerning the representation
of certain employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer distributes and sells footwear and allied products
in some 450 stores in 36 States. It has subsidiary corporations not
involved in this proceeding which manufacture footwear, but it ap-
parently buys from many other manufacturers as well. The main
offices of the Employer are at Columbus, Ohio, where a merchandise
distribution unit is also located. The merchandise is almost totally
housed in a large , one-story warehouse on Innis Road, although return
goods and some portion of the houseslipper and findings sections are
housed in the five-story main office building on North Fourth Street.
The Petitioner seeks a unit of all employees in the Innis Road ware-
house, including the one truckdriver who shuttles between Innis Road
and Fourth Street. The Employer contends that the unit should be
all Columbus employees engaged in its merchandise distribution op-
erations, which apparently would include approximately 167 em-
ployees at Fourth Street doing essentially office clerical work. The
Petitioner would confine the unit to the 133 employees at the ware-
house, whose work is the handling of stock. However, it stated at
the hearing that it would wish to represent any unit that the Board
might find appropriate.
1 See De.saulnsers and Company , 115 NLRB 1025 , Mohawk Bustiness Machines Corpw a-
tion, 116 NLRB 248, footnote 3 ; Lkco Products Company, 117 NLRB 137; Kohler Co ,
117 NLRB 321.
The Employer has filed under the title and number of this case what it terms an
"Auxiliary Motion " alleging certain evidentiary matter concerning the compliance issue
raised by it at the hearing, and requesting the Board either to dismiss this proceeding or
hold a collateral hearing to consider compliance In our recent decision in Standard Cigar
Company, 117 NLRB 852, the Board said that that case was the "last" instance in which
it would make a separate administrative determination on a compliance issue based upon
evidence erroneously adduced in a representation or complaint case and a request for
such a determination made in the representation or complaint case "In all future cases,"
the Board stated, "we shall apply our policy stuctly, and require the parties to present
such compliance issues for administrative determination completely separate and apart
from the repiesentation or complaint proceedings " [ Emphasis supplied I Accordingly,
as the Employer 's request for a collateral determination of compliance has been im-
properly filed in this proceeding , it is therefore denied , without prejudice to the filing of
a proper motion for an administrative determination completely separate and apart from
this representation proceeding.
SHOE CORPORATION OF AMERICA 1211
Columbus is the buying center of the Employer. Most of the goods
'bought are delivered to the Innis Road warehouse, either by rail or by
motor freight, with samples being sent over to Fourth Street from
each shipment received. The goods are stored at Innis Road in eight
sections, according to the type of stock. The order preparation section
and the shipping.and receiving section are the additional sections at
the warehouse. Each section has a chief of section or section head
who is in charge of the employees working in the section, except that
one section head handles both the findings section and the handbags
and hosiery section. These section heads are responsible for attend-
ance records, assign work within the section, and grant time off to the
employees. They are ultimately responsible to the director of mer-
chandise distribution, who has an office in the main office building
on Fourth Street. The merchandise director's assistant and the as-
sistant to his assistant have a desk at Innis Road. The Employer testi-
fied that there is no warehouse superintendent as such. In addition
to the Innis Road employees, the two assistants to the director of
merchandise distribution also have under their jurisdiction those stock
sections which are at Fourth Street, that is, houseslippers, return
goods, and findings. The Employer testified that stock handling em-
ployees from the warehouse are assigned to work at Fourth Street on
outlines, which appear to be catalogues for the retail stores, as well
as to handle houseslippers in the pre-Christmas season and to assist in
the year-end rush in the return goods section. Apparently the number
of these employees so assigned may vary from 5 to as high as 15, and
they may work only a day or two, or they may work all week. The
record indicates that on a yearly basis this would involve no more
than 15 percent of the time of the workers so assigned. All of the
Innis Road employees are male.
The main office building on Fourth Street, in addition to housing
the merchandise requisition section for the distribution unit, contains
offices for the Employer's executives and supervisors of retail stores,
as well as the real estate, advertising, insurance, tax, budget, auditing,
and payroll departments, plus a print shop, and sample rooms. Six
maintenance employees look after this building and two are employed
at Innis Road.
The merchandise requisition section has 28 in-stock order writers
who are male and who go to the warehouse from time to time in con-
nection with their work. It also has the following female employees :
14 back-stock order writers, who write up orders which come in before
the merchandise is received by the Employer, and do not go to the
warehouse at any time ; 9 secretary-typists, 11 checkers and pullers, 7
filing employees, 7 merchandise control employees, and 3 traffic em-
ployees. Unless one of the quarterly inventories is dispensed with, the
in-stock order writers go to the warehouse 4 times a year to take inven-
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tory for a period of 3 to 5 days. They also go for the purpose of check-
ing shoes because of complaints or inaccurate records, and sometimes to
assist in filling orders. The employees in this in-stock order writer
group are broken down into smaller groups corresponding to the stock
sections of the warehouse, and they write orders for the type of stock
in which they specialize. On an average they are paid 15 percent
more than the stock handlers at the warehouse. During a year, 10
to 20 percent of their time will be spent at the warehouse. There have
been promotions from stock handling employees to in-stock order
writers.
In the houseslipper section at Fourth Street no employees are per-
manently assigned. The findings section at this location handles
mainly office supplies for the Fourth Street building, ^ with an em-
ployee complement of four. The return goods department, which is
entirely located at Fourth Street, has 6 or 7 male employees. An
adjacent shipping section has 2 or 3 male employees and prepares the
merchandise being returned to manufacturers. Apparently the
Employer also classifies as return goods employees a large group of
female employees at Fourth Street who are engaged in billing, invoice
verification, invoice payment, final check of invoice and records,
duplicate record filing, invoice preparation for stores, and completed
mail order filing.
The Employer contends that its merchandise distribution unit con-
sti,tutes a line of production which necessarily includes all those em-
ployed in the filling and preparation of orders and the return of
unsatisfactory merchandise to manufacturers. It urges that the
desired unit of warehouse employees or even of all stock handling
employees is an attempt to "scoop out" only part of the production line.
In support of its unit contention it introduced much testimony to the
effect that the employees at both Columbus locations have the same
employee benefits and have numerous opportunities for social contacts.
It also testified that eventually it plans to house all merchandise
distribution employees at Innis Road and has purchased additional
acreage for that purpose.
On the record here presented we believe that a unit of warehouse
employees, including the maintenance employees and those few em-
ployees at Fourth Street who handle stock in the return goods, findings,
and houseslipper sections, and who are under the same supervision
as the Innis Road warehouse employees, constitute a unit appro-
priate for the purpose of bargaining. The Petitioner's showing of
interest in this unit is sufficient. Obviously the many female em-
ployees who do only office clerical work at Fourth Street have no real
community of interest in bargaining with the employees performing
warehousing functions. Nor do we think that the Fourth Street in-
.stock, order writers have such community of interest merely because
NATIONAL VAN LINES 1213
of that minor portion of their working time which is spent at the
warehouse. Their principal function is office clerical work, just as
the principal function of the stock handlers at the warehouse is a
warehousing function despite the fact that some of them receive tem-
porary assignments to assist in catalogue work and seasonal rushes at
Fourth Street. We reject the Employer's contention that its mer-
chandise distribution unit at Columbus is so integrated that only a
bargaining unit coextensive with it can be appropriate. Accordingly,
inasmuch as the Petitioner objects to their inclusion, we shall exclude
the office clerical employees from the unit. See Interstate Supply
Company, 117 NLRB 1062. The Employer's motion to dismiss on
grounds other than compliance is herewith denied.
We find that the following employees of the Employer constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act: All employees of the Employer
at its Innis Road warehouse in Columbus, Ohio, including the truck-
driver and the maintenance employees, plus stock handling employees
in return goods, houseslippers, and findings at the Fourth Street loca-
tion of the Employer in Columbus, Ohio, as well as maintenance em-
ployees at that location, excluding the merchandise requisition
employees (office clerical employees) and all other employees at the
Fourth Street location, section heads at Innis Road, guards, watchmen,
and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
National Van Lines and Van & Storage Drivers Local Union No.
389, I . B. T. C. W. & H. of A., AFL-CIO, Petitioner. Case No.
21-I?C-4426. April 16,1957
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 John W. Kelly and Irving
Helbling, hearing officers. The hearing officers' rulings made at the
hearing are free from prejudicial error and are hereby affirmed. That
portion of the Employer's offer of proof which was not the subject of
stipulation, and on which ruling was reserved for the Board, is hereby
accepted.
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 certain em-
ployees of the Employer.
117 NLRB No. 159.