The Schiff Co.

National Labor Relations Board - Board Decisions

Oct 31, 1941

36 N.L.R.B. 575 (N.L.R.B. 1941)

In the Matter of THE SCHIFF COMPANY and WAREHOUSE & DISTP.IBU-
TION WORKERS UNION
Case No. R-3058.-Decided October 31, 1941
Jurisdiction : retail shoe industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord union recognition ; temporary employees held eligible. to vote,
despite Company's contention that they are ineligible, where business of Com-
pany was highly seasonal and average temporary employee worked from 4 to 6
months ; election necessary.
Unit Appropriate for Collective Bargaining : all employees in the warehouse of
the Company excluding supervisors, foremen, assistant foremen, leadmen, cleri-
cal workers, engineers, personnel managers, and truck drivers ; janitor ex-
cluded notwithstanding desire of union for inclusion where employee spends
90 per cent of his time outside and no part of salary is charged to ware-
house; employees in return, and hosiery, and findings departments included
notwithstanding desire of union for exclusion since their work is not skilled,
and two thirds of salary is charged to warehouse ; department heads included
notwithstanding desire of union for their exclusion where they have no right
to hire or discharge or to recommend the hire or discharge of employees and
90 per cent of their time is spent performing manual duties.
Hedges, Hoover c0' Tingley, by Mr. H. R. Tingley and Mr. George
R. Hedges, Jr., of Columbus, Ohio, for the Company.
Mr. Edward S. Crudele, of Cleveland, Ohio, for the Union.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
• On August 7, 1941, Warehouse & Distribution Workers Union,
herein called the Union, filed with, the Regional Director for the
Ninth Region (Cincinnati, Ohio) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of The Schiff Company, Columbus, Ohio, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On September 10, 1941, the Na-
36 N. L. R. B., No. 120.
575
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Labor Relations Board, herein called the Board, acting pursu-
ant to Section 9 (c) of the Act and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
ordered an investigation and authorized the Regional Director to con-
duct it and to provide for an appropriate hearing upon due notice.
On September 15, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and the
Union. Pursuant to notice, a hearing was held on September 24, 1941,
at Columbus, Ohio, before Harold Weston, the Trial Examiner duly
designated by the Chief Trial Examiner. The Company and the
Union were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all.parties.
During the course of the hearing the Trial Examiner made several
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On October 7 and 8, 1941, respectively, the Company and the Union
filed briefs which the Board has considered. On October 20, 1941, the
Union filed a reply brief which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Schiff Company is an Ohio corporation with its principal office
and place of business at Columbus, Ohio. The Company operates
retail shoe stores in 31 states of the United States. In the course of
its business, the Company operates two warehouses at Columbus, Ohio,
with which we are here concerned. During 1940 the Company's retail
sales amounted to approximately $14,000,000. Fifty-two per cent of
the merchandise sold by the Company comes into and is delivered
through the warehouses at Columbus. Of the total merchandise han-
dled at the Columbus warehouses approximately 80 per cent is shipped
to Columbus from points outside the State of Ohio and over 60 per
cent is shipped by the Company from Columbus to points outside
the State of Ohio.
II. THE ORGANIZATION INVOLVED
Warehouse & Distribution Workers Union is a labor organization
affiliated with the Congress of Industrial Organizations. It admits to
membership employees at the Columbus warehouses of the Company.
THE SCHIFF COMPANY
III. THE QUESTION CONCERNING REPRESENTATION
577
On about August 4, 1941,. the Union requested the Company .to
recognize it as exclusive representative of certain employees at the
Columbus warehouses. The Company denied this request. A state=
ment of a Field Examiner of the Board, introduced in evidence at the
hearing, shows that the. Union represents a substantial number of
employees in the alleged appropriate unit.'
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, appearing in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial..
relation to trade,. traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union urges that all employees at the two Columbus ware--
houses of the Company, including Gilbert Gray, but excluding execu-
tives, supervisors, foremen, assistant foremen, department heads, lead
men, clerical workers, employees in the return department, engineers,
personnel managers, employees in the hosiery and findings depart-
ments, and truck drivers, constitute an appropriate unit. . The only.
controversy with respect to the unit concerns the department heads,
employees in the return department, and employees in the hosiery:
and findings department. The Company desires that all such
employees be included in the unit.
The Company employs 7_ persons in its return department. The:
Union asks that these employees be excluded from the unit .because
they are.skilled and their work is largely of a clerical nature. The.;
Company contends that such employees are warehousemen performing,
duties similar to the duties performed by employees admittedly in the:
unit. These employees inspect damaged shoes and'new shoes returned.
from retail stores of the Company. They make out return slips show-:
ing the quantity, stock number, and reason for return of the shoes and
actually handle the cartons of shoes. One-third of the salaries of,
1 The Field Examiner reported that the Union presented 39 membership application cards
bearing the names of persons on the August 9, 1941, pay roll of the Company. There are
approximately 80 employees on the pay roll.
433118-42-vol. 36-38
578 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
these employees is charged to the purchasing department of the Com-
pany and two-thirds to the warehouse. It does not appear that their
work is skilled but that about two months' training is necessary before
they become proficient in knowing where to place the various returned
items in the warehouse. Under the circumstances, we find that em-
ployees in the return department should be included in the unit.
The Company employs two persons in its hosiery and findings
departments. The Union urges that they be excluded from the unit
because they are skilled employees. The Company urges that they
be included because they are ordinary warehouse employees. The
facts with respect to these employees are similar to those set out in
our discussion of the return-department employees above. Under the
circumstances, we find that employees in the hosiery and findings
departments should be included in the unit.
The Company employs 7 persons alleged to be department' heads.
The Union asks that they be excluded from the unit on the ground
that they are supervisory employees. The Company denies that the
duties of these persons are supervisory in nature and. ask that they' be
'included in the unit. These employees have no right to hire or dis-
charge or to recommend the hire or discharge of employees and their
duties consist of seeing that merchandise is brought to their respective
stockrooms and put away properly. They receive about $3 more per
week than the other employees, but it appears that they receive higher
salaries only because they have been with the Company for a longer
period of time than the other employees. It appears from the record
that they spend about 90 per cent of their time actually performing
manual duties. We find that the department heads should be included
in the unit.
The Union urges that one Gilbert Gray, a janitor, be included in
the unit and the Company that he be excluded from the unit. 'The
Company employs two janitors at its Fourth Street warehouse, which
also includes the offices of the Company. The parties are in agreement
that one of the janitors be excluded. It appears that Gray spendh
about 10 per cent of his time performing janitorial duties in the ware-
house and the rest of his time cleaning the offices of the Company. No
part of his salary is charged by the Company to the warehouse. His
work is substantially the same as that of the janitor whom the parties
agreed to exclude. We find that Gilbert Gray should be excluded from
the unit.
The Union urges that a truck driver employed by the Company be
excluded from the unit. The Company took no position with respect to
this employee. It appears that this employee is eligible for member-
ship in another labor organization. We find that the truck driver.
should be excluded from the unit.
THE SCHIFF COMPANY.- , - . , 579
We find that all employees at the Columbus warehouses of the Com-
pany, including employees in the return, hosiery, and findings depart-
ments and ' department heads, but excluding executives, supervisors,
foremen, assistant foremen, leadmen, clerical employees, engineers,
personnel managers, truck drivers, and Gilbert Gray, constitute a unit
appropriate for the purpose of collective bargaining and that said unit
will insure to employees of the Company the full benefit of their right
to self-organization and to collective bargaining and' otherwise will
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has arisen
can best be resolved by the holding of an election by secret ballot.
The Company and the Union are in dispute as to the status of ap-
proximately 30 temporary employees. The Union asks that such em-
ployees be deemed eligible to vote and the Company that they be ruled
ineligible to vote. The Company's business is highly seasonal and its
seasons are from January 1 of each year until the end of March and
from July 1 to the end of September. During these two periods the
Company carries approximately, 30 persons more on its pay roll than
it does during other months of the year. It appears that.the average
temporary employee works from four to six months at a time. At the
time these employees are hired they are told by the Company that the
jobs are temporary and such employees are not eligible to group life
and hospitalization-insurance plans carried by the Company for the
benefit of its regular employees. Under all the circumstances, we find
that all such employees who might be on the pay roll of the Company
designated below for the purpose of determining eligibility to vote in
the election shall be eligible to vote.
The Union urges that the pay roll of September 7, 1941, be used for
determining eligibility to -vote. The Company took no position with
respect to the pay-roll date. No reason appears why we should not,
in accordance with our usual practice, designate the pay roll imme-
diately preceding the date of the Direction of Election as the pay roll
to determine eligibility to vote. We shall direct therefore that em-
ployees of the Company eligible to vote in the election shall be those
in the appropriate unit who were employed during the pay-roll.period
immediately preceding the date of the Direction of Election herein,
subject to such limitations and additions as are- set forth in the
Direction.
Upon the basis of the above findings of fact -and upon the entire
record in the case, the Board makes the following :
580 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of The Schiff Company, Columbus, Ohio, within
the meaning of Section 9 (c) and Section 2 (6).and (7) of the National
Labor Relations Act.
2. All employees at the Columbus warehouses of the Company in
eluding employees in the return, hosiery, and findings departments and
department heads, but excluding supervisors, foremen , assistant fore-
men, leadmen, clerical workers, engineers, personnel managers, truck
drivers, and Gilbert Gray, constitute a unit appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b)
of the National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, 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 the purpose of collective bargaining
with The. Schiff Company, Columbus, Ohio, an election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)'
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Ninth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Section 9, of said Rules and Regulations, among all
employees at the Columbus, Ohio, warehouses of the Company who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees in the return, hosiery, and
findings departments, department heads, employees who did not work
during such pay-roll:period because they were ill or on vacation or in
the active military service or training of the United States, or tempo-
rarily laid off, but excluding executives, supervisors, foremen, assist-
ant foremen, leadmen, clerical workers, engineers, personnel managers,
truck drivers, Gilbert Gray, and employees who have since quit or
been discharged for cause, to determine whether or not they desire to
be represented by Warehouse & Distribution Workers Union, affiliated
with the Congress of Industrial Organizations, for the purpose of.
collective bargaining.