Doughnut Corp. of America

National Labor Relations Board - Board DecisionsMar 27, 1946

66 N.L.R.B. 1231 (N.L.R.B. 1946)

In the Matter of DOUGHNUT CORPORATION OF AMERICA and DISTRICT' 50, UNITED MINE WORKERS OF AMERICA; INTERNATIONAL ASSOCIATION OF MACHINISTS; BAKERY AND CONFECTIONERY WORKERS INTERNA- TIONAL UNION, LOCAL 68 Case No. 5-R-2131, et al.-Decided March 27, 1946 Mr. William Saxon, of Baltimore, Md., for the Company. Mr. Elwood Moffett, of Baltimore, Md., for the UMW. Messrs. Walter F. McKenna and If. J. Peresluah, both of Baltimore, Md., for the I. A. M. Mr. William C. Parsons, of Baltimore, Md., for the Confectionery Workers. Mr. A. Sumner Lawrence, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon petitions duly filed by District 50, United Mine Workers of America, herein called the UMW; by International Association of Machinists, herein called the I. A. M.; and by Bakery and Confec- tionery Workers International Union, Local 69, herein called the Confectionery Workers, alleging that questions affecting commerce had arisen concerning the representation of employees of Doughnut Corporation of America, Ellicott City, Maryland, herein called the Company, the National Labor Relations Board provided for an ap- propriate consolidated hearing upon due notice before Earl K. Shawe, Trial Examiner. The hearing was held at Baltimore, Maryland, on December 18, 1945. The Company, the UMW, the I. A. M., and the Confectionery Workers, appeared and participated. 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 at the hearing are free from prejudicial error and are hereby affirmed. The Company's motion to dismiss, 66 N. L. R. B., No. 148. 1231 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOAR!) filed subsequent to the hearing, is hereby denied. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Doughnut Corporation of America, a New York Corporation with its principal place of business in New York City, operates in the United States and Canada, 3 plants including a plant at Ellicott City, Maryland, where the Company is engaged in the manufacture of doughnut making machinery, flour, and baking mix, used in the making of doughnuts and other bakery products. At its Ellicott City plant,' which is the only plant involved in these proceedings, the Company annually uses raw materials valued in excess of $350,000, of which 90 percent is purchased and shipped to the Company's Elli- cott City plant from points outside the State of Maryland. Of the Company's finished products manufactured annually at its Ellicott City plant and valued in excess of $500,000, approximately 90 percent is shipped from such plant to points outside the State of Maryland. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED District 50, United Mine Workers of America, is a labor organiza- tion admitting to membership employees of the Company. International Association of Machinists is a labor organization admitting to membership employees of the Company. Bakery and Confectionery Workers International Union, Local 68, is a labor organization admitting to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION The Company has refused to recognize any of the labor organiza- tions herein as the exclusive bargaining representative of any of its employees until each of such labor organizations has been certified by the Board in an appropriate unit. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the UMW and the I. A. M. each represents a sub- 1 The Ellicott City plant is divided into 3 principal divisions known as the machine shop, the flour mill , and the cereal plant. DOUGHNUT CORPORATION OF AMERICA 1233 stantial number of employees within the unit which it claims to be appropriate.2 We find that questions affecting commerce have 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. 1V. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES The I. A. M. requests a unit consisting of the employees of the machine shop and the maintenance employees located in the flour mill and cereal plant. The Confectionery Workers urges a unit limited to the production employees in the flour mill and cereal plant. The UMW contends that the only appropriate unit is a plant-wide unit embracing all production and maintenance employees of the Company at its Ellicott City operations. As opposed to the foregoing conten- tions, the Company proposes the creation of 3 separate units co- extensive with its 3 production divisions; i. e., the flour mill, the cereal plant, and the machine shop. In addition to the scope and type of appropriate unit, there exists a further question as to the inclusion or exclusion of group leaders and subforemen who the Company, in opposition to the 3 labor organizations, contends should be excluded from any unit which may be found appropriate. In its machine shop, the Company manufactures doughnut making machinery which is sold to customers on the open market. In the flour mill and cereal plant, the Company produces flour and baking mix, used in the making of doughnuts and other bakery products. The Company's contention that the employees of these 3 divisions should be segregated into as many separate and distinct units is based upon the fact that each division manufactures a distinct product; that a separate pay roll is maintained for each division; that the super- vision in each division is independent of the other divisions; and that the employees in the several divisions are not interchanged. Although such facts would be sufficient to warrant the finding of an appropriate unit co-extensive with the limits of 1 of the several divisions were s The Field Examiner reported that the UMW had submitted 247 cards dated in July, August , September , and October 1945, bearing the names of employees of the Company among a total of 432 names within the unit claimed appropriate by the UMW ; and that the I . A. M. had submitted 140 cards , of which 77 , dated October 1945 and 65 undated , bore the names of employees of the Company among a total of 182 names in the unit claimed appropriate by the I. A. M. The Field Examiner further reported that the Confectionery Workers had submitted 34 cards bearing the names of employees of the Company among a total of 250 names in the unit claimed appropriate by the Confectionery Workers. Although the Con- fectionery Workers has made an inadequate showing of representation , inasmuch as an election is hereinafter directed upon an adequate showing of representation among the employees in the unit which it claims appropriate, and in which it has some evidence of representation , we shall accord it a place on the ballot . See Matter of Phelps Dodge Corporation, 60 N. L. R. B. 1431. 686572-46-79 1234 DECISIONS OF NATIONAL LABOR RELATIONS ilOAIiD any labor organization seeking such unit in accordance with the extent of organization among the Company's employees,3 in the present case none of the labor organizations concerned is either seek- ing or has limited its organization to the employees of a single divi- sion. In the case of the I. A. Al., it appears that the unit sought is essentially a multi-craft group of machine and related craft-main- tenance employees, such as the Board has found appropriate.4 IV, e are of the opinion, therefore, in the absence of any history of collective bargaining upon a plant-wide basis, that the group claimed by the 1. A. Al. may constitute a separate appropriate unit. On the other hand, as contended by the UMW, the foregoing employees may be merged with the remaining production employees sought by the Con- fectionery Workers into a single unit comprising all the Company's production and maintenance employees. We shall, therefore, make no present determination of the appropriate unit or units as affecting the employees hereinabove referred to, but shall reserve such finding, pending the result of separate elections which we shall hereinafter direct among machine shop and maintenance employees,5 and the remaining production employees, respectively. Upon the results of these elections will depend, in part, the scope of the bargaining unit or units. There remains for consideration the question as to the inclusion or exclusion of group leaders and subforemen. With respect to the question of including or excluding group leaders, the I. A. M. and the UAIW contend, in opposition to the Company, that group leaders in the machine shop should be included in any unit embracing machine shop employees. The 16 group leaders, who constitute the lowest rank of supervision in the machine shop, direct the work of some 200 employees and report to the 2 foremen who comprise the supervisory level immediately below the machine shop superintendent. The evidence discloses that group leaders super- vise from 10 to 18 employees, respectively ; that they attend foremen's meetings and take care of the complaints of employees in their de- partments; that they keep the time of the employees in their re- spective groups and assign employees to various tasks ; and that they may effectively recommend the transfer or dismissal of employees upon the ground of inefficiency. The subforemen, who the Company contends, in opposition to the UMW and the Confectionery Workers, 8 See Matter of Justin S. McCarty, Jr., Nolan Meaough and Gertrude Reed, d/b/a McCarty Manufacturing Company, 61 N. L R. B. 443; Matter of Gaylord Bros ., Inc., 64 N. L Ti. B. 1350 * See Matter of Etectro-Metallurgical Company , 56 N L. R. P. 1464; Matter of Tobacco RV-Products and Chemical Corp. 64 N. L. R B. 252 , and cases cited therein. 5 The Board has recognized the propriety of separating machine and maintenance employees from other production employees , where such machine and maintenance em- ployees are represented by a separate labor organization . See Matter of Superior Metal Products Co., 65 N. L. R. B. 552. DOUGHNUT CORPORATION OF alll.niC.A 123.5 should be excluded from any unit of cereal plant employees, constitute the lowest level of supervision in the cereal plant where they super- vise from 10 to 35 employees in a department containing approxi- mately 175 employees. The record reveals that subforeinen may effectively recommend the promotion and dismissal of production employees. Upon Consideration of the foregoing evidence, w1 e are of the opinion that although the record shows that the recommendations of group leaders and subforemen, with respect to employees under their imme- diate supervision, are subject to independent investigations by their superiors, it does not establish that such investigations supersede or detract from their efficacy as a determinative factor in action taken by the Company. Under the circumstances, we find that both the group leaders and the subforemen herein concerned are supervisory employees within the meaning of our usual definition ; accordingly. we shall exclude them from the several voting groups with respect to which elections are hereinafter directed. As previously indicated, we shall at this time make no final deter mination with respect to the appropriate unit or units pending the outcome of the elections among employees of the Company at it- Ellicott City operations in the voting groups set forth below: (1) All employees in the machine shop and all maintenance em- ployees in the flour mill and cereal plant, excluding all guards, clerical employees, and all supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action;, (2) All production employees, including packing, shipping, and sundry workers, employed in the flour mill and cereal plant, exclud- ing maintenance employees, guards, clerical employees, and all super- visory employees with authority to hire, promote, discharge, disci- pline, or otherwise effect changes in the status of employees, or effectively recommend such action.'' We shall direct that the questions concerning representation which have arisen be resolved by elections by ;.ecret ballot among employees in the several voting groups who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direc- tion. The Regional Director shall mail ballots to employees within the voting groups on military leave. proz'ided one or more of the parties hereto, within 7 days after receipt of the Direction of Elec- tions, files with the Regional Office a list containing the names, most $Excluded as falling within this category are employees in the classification of group leader 'Excluded as falling within this category are employees in the classification of crib foreman 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recent addresses, and work classifications of such employees. The Re- gional Director shall open and count the ballots cast by mail by em- ployees on military leave, provided that such ballots must be returned to and received by the Regional Office within 30 days from the date they were mailed to such employees by the Regional Director.8 DIRECTION OF ELECTIONS 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 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- t ives for the purposes of collective bargaining with Doughnut Cor- poration of America , Ellicott City, Maryland, elections by secret ballot shall be conducted as early as possible , but not later than Forty-five (45 ) days from the date of this Direction , under the direc- tion and supervision of the Regional Director for the Fifth 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 following groups of employees who were employed during the pay-roll period immediately preceding the date of this Direction , including employees who did not work during said pay-roll period because they were ill, or on vacation , or temporarily laid off, and including employees in the armed forces of the United States, 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 elections : (1) All employees in the group of machine shop and maintenance employees described in Section IV, above, to determine whether they desire to be represented by International Association of Machinists, or by District 50, United Mine Workers of America , for the pur- poses of collective bargaining or by neither: (2) All remaining production employees of the Company at its Ellicott City operations in the residual production group described 8 A free interchange between the parties of information on the addresses and work categories of the employees to be voted by mail will be necessary in order to avoid challenges and post-election objections. Accordingly, the Board will make available to all interested parties any information of this nature furnished it by any other party. In the event that the parties should send the absentee voters information or literature bearing directly or indirectly on the pending elections , copies of all such documents should be simultaneously filed with the Regional Office for inspection by or transmittal to the other parties. However , acceptance or transmittal of such literature by the Board's office is not to be construed as conferring immunity on the filing parties in the event that objections are later interposed concerning its content . The usual principles will apply. i DOUGHNUT CORPORATION OF AMERICA 1237 in Section IV, above, to determine whether they desire to be repre- sented by District 50, United Mine Workers of America, or by Bakery and Confectionery Workers International Union, Local 68, for the purposes of collective bargaining, or by neither. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Elections.