Kimel Shoe Co.

National Labor Relations Board - Board Decisions

Nov 27, 1951

97 N.L.R.B. 127 (N.L.R.B. 1951)

KIMEL SHOE COMPANY 127
into union-security agreements with employers, the Petitioners' con-
tract bar contention has become without merit 3 We find that the
existing contract between the Employer and UAW-AFL is a bar to
the petition herein. Accordingly, we shall dismiss the petition.'
Order
IT IS HEREBY ORDERED that the petition filed by the International As-
sociation of Machinists, Local Lodge No. 778, AFL, and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Over-the-Road and City Transfer Drivers, Helpers,
Dockmen and Warehousemen, Local No. 41, AFL, jointly, be, and it
hereby is, dismissed.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
3 We distinguish those cases where we have held that contracts with unnuthorired
union-security provisions which the parties sought to correct or suspend after the filing
of a representation petition are no bar to a determination of repiesentatives Brodln'ad-
Garrett Co, 96 NLRB 669; Allen Wales Addling Machine Du ssson of the National Lash
Register Company, 94 NLRB 1288; Wettlauffer Manufacturing Coo potation, 89 NLRB 699.
1In view of the fact that the proviso contained in the union-security clause effectively
defers application of the clause, Member Reynolds finds that the existing contract between
the Employer and the UAW-AFL constitutes a bar to this proceeding. Ile therefore
considers it unnecessary to pass upon the effect of the recent amendment to the Act upon
the contract bar issue
KIMEL SHOE COMPANY, PETITIONER and UNITED SHOE WORKERS OF
AMERICA, CIO. Case No. 01-RM-178. November 27, 1951
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 George H. O'Brien, 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 Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. The Employer, the Petitioner herein, seeks a determination of
the bargaining representative of production and maintenance em-
ployees at its Los Angeles, California, shoe manufacturing plant.
The Union moves to dismiss the petition, contending that it has ex-
pressly disclaimed all interest in the employees covered by the petition
and that a question concerning representation therefore does not exist.
The pertinent facts relative to the instant petition and the Union's
alleged disclaimer are as follows :
97 NLRB No. 14.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 8, 1951, and again on February 13, 1951, representa-
tives of the Union met with representatives of the Employer in
unsuccessful attempts to obtain from the Employer a collective bar-
gaining contract or a recognition agreement for production and
maintenance employees at the Employer's Los Angeles, California,
plant. On each occasion the Employer told them that it would
prefer to have the question concerning representation of its employees
settled by an election. On neither occasion, however, did the Union's
representatives claim that the Union represented a majority of the
employees concerned.
On February 13, 1951, shortly after the close of the second meeting
noted above, the Union called a strike of the cutting department
employees at the plant and established a picket line around the plant.
On February 14, 1951, the Employer filed the instant petition. The
strike and picket line were in progress on July 7, 1951, the last day of
the hearing in this proceeding.
On February 26, 1951, the Union filed charges in Case No.
21-CA-1045 against the Employer, alleging violations of Section
8 (a) (1) and 8 (a) (3) of the Act.
During the period from February 13, 1951, pickets at the Petitioner's
plant used the following signs :
1. "Our boss won't talk so we walk."
2. "Kimel Shoe on strike."
3. "Kimel Shoe on Strike. USWA CIO, Local 122."
4. "Unfair to organized labor.
5. "Kimel Shoe Company on strike.".
6. "Kimel Shoe Company on strike and unfair to organized labor."
7. "Demand contract be signed, United Shoe Workers."
On April 13, 1951, the Union sent the following telegram to the
Employer :
You are hereby notified that due to the unfair labor practices
committed by you the Union is unable to maintain at this time
a claim for representation in your factory in the appropriate unit.
Therefore it hereby unequivocally and expressly disclaims any and
all interest in representation of the production unit of your
present employees and any current right to recognition as the
collective bargaining representative.
On April 14, 1951, the day after the transmittal of the disclaimer
telegram, picket signs numbered 1 and 7, above, were removed from
the picket line on orders of the Union's international representative
in charge of organizing the Employer's factory.
On April 24, 1951, following a settlement agreement, the Union
withdrew the afore-mentioned unfair labor practice charges.
KIMEL SHOE COMPANY 129
On or about May 1, 1951, picket sign numbered 1, above, reappeared
on the picket line and remained there for a period of approximately 3
weeks until after May 21, 1951, at which time it was again removed?
On May 6, 1951, pickets walked in front of Mr. Kimel's home
bearing the following signs :
8. "Kimel Shoe on strike, Local 122, USWA CIO."
9. "Morris Kimel lives here."
10. "Kimel Shoe Company on strike, USWA Local 122, CIO."
11. "Mr. Kimel, can't you see? Workers need union security.
USWA Local 122, CIO."
12. "Life can be happy, Morris K. Try making shoes the Union
way. USWA Local 122, CIO."
13. "Morris Kimel won't talk so we walk. United Shoe Workers
of America, Local 122, CIO."
It is now well established that when a union has clearly and unequiv-
ocally withdrawn its claim of majority representation, no question
concerning representation exists to support an employer's representa-
tion petion.2 And this Board has held that picketing which is
directed at organizing the employees for future representation is
not necessarily inconsistent with a prior unequivocal disclaimer.3
In the instant case, however, as noted above, the Union's picketing
involved the continued and regular use, for substantial periods of time,
of signs referring to the Employer's alleged refusal to recognize the
Union. By such conduct the Union reaffirmed its claim to majority
representation and thereby cast doubt on the meaning and purposes
of its earlier disclaimer. In such circumstances we believe that
the policies of the Act will best be served by directing an election,
and we accordingly deny the Union's motion to dismiss the instant
petition'
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. We find, in accordance with the agreement of the parties, that
all production and maintenance employees at the Employer's Los
Angeles, California, shoe manufacturing plant, excluding office
clerical employees, guards, and supervisors, constitute a unit appro-
' The Union's international representative testified that, during this period of reappear.
ance of sign 1, he was absent from the picket line because of illness. Without his knowl-
edge or consent, this sign was returned to the picket line by the picket captain. The
union business agent testified that 3 weeks later he spotted the sign on the picket line
and removed it therefrom.
a Hamilton's Ltd., 93 NLRB 1076, and cases cited therein.
$ Hamilton's Ltd., supra; Smith's Hardware, 93 NLRB 1009.
Coca-Cola Bottling CO. of Walla Walla, Washington, 80 NLRB 1063.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election omitted, from publication in this
volume.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Direction,of Election.
OLIN INDUSTRIES, INC., WINCHESTER REPEATING ARMS COMPANY
DIVISION and THE' WINCHESTER CLUB, INC. and AMERICAN
FEDERATION OF LABOR.. Case No. 1-CA-/.36. November 29, 1951
Decision and Order
On May 29, 1951, Trial Examiner George Bokat issued his Inter-
mediate Report in the above-entitled proceeding, finding thlit the
Respondent, Olin Industries, Inc., Winchester Repeating Arms Com-
pany Division, hereinafter called Olin Industries, had engaged in
certain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. He also found
that the Respondent, The Winchester Club, Inc., had not been timely
served with a copy of the charge as required by Section 10 (b) - of the
Act, and therefore recommended that the complaint, with respect to
it, be dismissed. Thereafter, Olin Industries filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief,,and the entire record in the case, and hereby
adopts the findings and recommendations of the Trial Examiner,
with the following exceptions, additions, and modifications.
The initial charge in this case naming Olin Industries was filed
and served on May 16, 1949. Because of the limitation period in Sec-
tion 10 (b) of the Act,' the complaint which might issue based upon
' The relevant portion of Section 10 ( b) reads :
Whenever it is charged that any person has engaged in or is engaging in any such
unfair labor practice , the Board , or any agent or agency designated by the Board for
such purposes , shall have power to issue and cause to be served upon such person
a complaint stating the charges in that respect , and containing a notice of hearing
before the Board or a member thereof , or before a designated agent or agency, at a
place therein fixed , not less than five days after the serving of said complaint :
Provided, That no complaint shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such charge is made. . .
97 NLRB No. 26.