Binon Chocolates, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1946

65 N.L.R.B. 591 (N.L.R.B. 1946)

In the Matter of BINON CHOCOLATES, INC., AND/OR ROSEMARIE DE
PARIS, INC., AND/OR LA MARQUISE CHOCOLATIER, INC., AND /OR COLBERT
CHOCOLATES, INC. and UNITED CANDY & CONFECTIONERY EMPLOYEES
UNION, LOCAL 50, C. I. O.
Case No. 2-R--5124.-Decided January 28, 1946
Messrs. Francis Zavier Ward and Daniel F. O'Connel, of Breed,
Abbott c Morgan, of New York City, for the Companies.
Mr. Henry Schuman, of Liebowitz c Schwman, of New York City,
for the C. I. O.
Mr. Arnold Cohen, of New York City, for the A. F. of L.
Mr. Donald B. Brady, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Candy & Con-
fectionary Employees Union, Local 50, C. I. 0., herein called the
C. I. 0., alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Binon Chocolates, Inc.,
herein called Binon, or the Company, and/or Rosemarie De Paris,
Inc., and/or La Marquise Chocolatier, Inc., and/or Colbert Chocolates,
Inc., the National Labor Relations Board provided for an appropriate
hearing upon due notice before Louis Plost and Cyril W. O'Gorman,
Trial Examiners. The hearing was held on September 26 and Oc-
tober 3,1945, at New York City. All the afore-mentioned corporations
and the C. I. O. appeared and participated. The Candy and Con-
fectionery Workers Union, No. 452, A. F. of L., heemafter called
the Intervenor, appeared and moved for leave to intervene in the
proceeding. This motion was granted and the Intervenor participated
in the entire hearing. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
65 N. L . R. B., No. 101.
591
679100-46-vol 65-39
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. 1HE BUSINESS OF THE COMPANIES
All four companies are New York corporations owned by the same
stockholders and having the same corporate president, treasurer, and
secretary. Rosemarie De Paris, Inc., is engaged in the business of
selling candies and other confections which are manufactured by the
Company. These candies and confections are sold in stores owned
and operated by Rosemarie De Paris, Inc., La Marquise Chocolatier,
Inc., and Colbert Chocolates, Inc., in New York City. The candies
are sold under the trade name of Rosemarie De Paris and La Marquise.
They are also shipped to approximately 27 States other than the
State of New York, by the Company in the name of Rosemarie De
Paris, Inc.
All of the raw materials and the wrapping materials necessary to
the manufacture and shipping of the confections are purchased by the
Rosemarie De Paris, Inc. and delivered to the Company, which is the
only one of the four corporations engaged in manufacturing. Biltori
does not sell any of its products in its own name. It is paid for the
manufacture of the candies by the Rosemarie De Paris, Inc.
During the past year, Rosemarie De Paris, Inc., purchased and
caused to be delivered to the Company raw materials and supplies
valued at approximately $600,000. A substantial amount of the raw
materials was shipped from States other than the State of New York.
During the same period of time, the Company manufactured finished
products valued in excess of $1,000,000. A substantial portion of the
finished products was shipped to points located outside the State of
New York. The only employees involved in this proceeding are the
production and maintenance employees on the pay roll of the Company.
Although it is evident that any or all of the other three corporations
might, for certain purposes, be deemed an employer or employers
of Binon's employees, within the meaning of Section 2 (2) of the Act,
the record indicates that each corporation is operated independently
of the others in regard to labor relations , function, and accounting. It
does not appear that Rosemarie De Paris, Inc., La Marquis Chocolatier,
The., or Colbert Chocolates, Inc., would necessarily be parties to col-
lective bargaining affecting Binon's employees . Consequently, we
shall dismiss the petition as to the three named corporations other
than Binon.
We find that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.
BINON CHOCOLATES, INC.
II. THE ORGANIZATIONS INVOLVED
093
United Candy & Confectionary Employees Union, Local 50, C. I. 0.,
and Candy and Confectionery Workers Union, No. 452, A. F. of L.,
are both labor organizations admitting to membership employees of
the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The C. I. 0., on September 15, 1944, requested the Company to bar-
gain with it as the collective bargaining representative of its produc-
tion employees. This request was refused. On October 6, 1944, the
Company entered into a collective bargaining contract with the Inter-
vener, covering its production and maintenance employees, for a term
ending December 31, 1946. The C. I. O.'s original petition in this
case was filed on October 17, 1944. Inasmuch as the contact was
entered into after the Company had received notice of the C. I. O.'s
claim, it does not constitute a bar to a present determination of
representatives.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the C. I. O. represents a substantial number of
employees in the unit hereinafter found appropriate."
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties stipulated, and we find, that all production and mainte-
nance employees of the Company, including shipping, maintenance,
engineering employees, and chauffeurs, but excluding bakers, office and
clerical employees, and all supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, consti-
tute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately_preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the Direc-
tion.
" The Field Examiner reported that the CIO submitted 106 cards . The testimony
received at the hearing shows that there are between 115 and 120 employees employed in
the appropriate unit. The Intervenor relies on the contract as proof of its interest.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Binon Chocolates,
Inc., 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 supervision of the Regional Director for the
Second Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Sections 10 and 11, of
said Rules and Regulations, among the employees in the unit found
appropriate in Section IV, above, who were employed during the pay-
roll period immediately preceding the date of this Direction, includ-
ing employees who did not work during said pay-roll period because
they.were ill or on vacation or temporarily laid off, and including em-
ployees in the armed forces of the United States who present them-
selves in person at the polls, but excluding those employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, to determine whether they
desire to be represented, by United Candy & Confectionery Employees
Union, Local 50, affiliated with the Congress of Industrial Organiza-
tions, or by Candy and Confectionery Workers Union, No. 452, affili-
ated with the American Federation of Labor, for the purposes of col-
lective bargaining, or by neither.
ORDER
Upon the foregoing findings of fact and upon the entire record in
the proceeding, the National Labor Relations Board hereby orders
that the petition for certification of representatives filed by United
Candy and Confectionery Employees Union, Local 50, C. I. 0., insofar
as it pertains to the employees of Rosemarie De-Paris, Inc., La Mar-
quise Chocolatier, Inc., and Colbert Chocolates. Inc., be, and it is hereby
dismissed.