J. G. McDonald Chocolate Co.

National Labor Relations Board - Board Decisions

Feb 21, 1938

5 N.L.R.B. 547 (N.L.R.B. 1938)

In the Matter of J. G. MCDONALD CHOCOLATE COMPANY, A CORPORA-
TION and CANDY WORKERS' LOCAL No. 373
Case No. R-527.-Decided February 21, 1938
Candy Manufacturing Industry-Investigation of Representatives : controversy
concerning representation of employees : refusal of employer to recognize and`
bargain with petitioning union until question of representation is determined by
Board-Unit Appropriate for Collective Bargaining: all plant employees, in-
cluding watchmen , but excluding foremen ; occupational differences ; no con-
troversy as to-Election Ordered
Mr. Charles A. Graham, for the Board.
Mr. Oscar W. Carlson, of Salt Lake City, Utah, for the Company.
Mr. A. George Koplow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 9, 1937, Candy Workers' Local No. 373, Bakery and
Confectionery Workers' International Union of America,' herein
called the Union, filed with the Regional Director for the Twenty-
second Region (Denver, Colorado) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of J. G. McDonald Chocolate Company, a corporation, Salt
Lake City, Utah, herein called the Company, and requesting an in-
vestigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On December 9, 1937, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropirate hearing upon due notice.
On December 11, 1937, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
upon the Union. Pursuant to the notice, a hearing was held on
December 17, 1937, at Salt Lake City, Utah, before Albert L. Lohm,
' The pleadings incorrectly designated the Union as Candy Workers' Local No 373.
547
548 NATIONAL LABOR RELATIONS BOARD
the Trial Examiner duly designated by the Board. The Board
and the Company were, represented by counsel and participated in
the hearing. Representatives of the Union participated in the hear-
ing as witnesses. Full opportunity to be heard, to examine and to
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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The J. G. McDonald Chocolate Company is a corporation engaged
in the manufacture of chocolate, cocoa, and candy, and in the sale
of these products within and without the State of Utah. The Corn-
pany also produces boxes and cartons for its own use. Its plant is
located at Salt Lake City, Utah.
The total gross business of the Company in 1936 was between
$100,000 and $700,000. The principal materials used by the Company
are sugar, butter, eggs, condensed milk, cream, corn-syrup, cocoa
beans, nut meats, flavorings, candied and preserved fruits, cardboard,
ribbon, and paper.
Approximately 70 per cent (in terms of monetary value) of th-,
materials used come from outside the State of Utah, and approxi-
mately 75 per cent (in terms of monetary value) of its products are
shipped outside the State of Utah.
H. THE ORGANIZATION INVOLVED
Candy Workers' Local No. 373, Bakery and Confectionery Work-
ers' International Union of America, is a labor organization affiliated
with the American Federation of Labor.
According to the testimony of its representative, the Union admits
to membership all plant employees engaged in the manufacture of
confections. This includes persons who deal with the product
through the point where it is placed in the consumer carton. It
does not include warehousemen, truck drivers, or persons packing
the cartons for shipment. The Union also has no jurisdiction over
salesmen, supervisors, office and clerical employees, and employees of
the box-making department.
Watchmen are admitted to membership in the Union. The Union's
representative testified that since there is no American Federation
DECISIONS AND ORDERS 549
of Labor organization for watchmen, the American Federation of
Labor has ruled that such employees are eligible to join the organi-
zation representing a majority of the employees in a plant.
III. THE QUESTION CONCERNING REPRESENTATION
The Union's organizational work among the Company's employees
started in April or May 1937. It was granted a charter in June
1937, by Bakery and Confectionery Workers' International Union
of America.
At the hearing, by stipulation between counsel for the Board and
counsel for the Company, the following facts were agreed upon :
On October 29, 1937, a representative of the Union approached the
Company's counsel on the question of collective bargaining, after
having been referred to counsel by the Company. It was then ar-
ranged to have the Utah Industrial Commission check the Union
membership against the Company pay roll to determine whether the
Union represented a majority of the employees of the Company.
Shortly thereafter, the Union received information that the attorney
for the Company had notified the Utah Industrial Commission that
there was some doubt as to the jurisdiction of the Commission be-
cause of the interstate nature of the Company's business. As a re-
sult, on November 9, 1937, before the results of the Commission's
check were known, the Union filed a petition for certification by the
Board. After filing the petition the Union attempted to gain the
consent of the Company, through its counsel, to the holding of a con-
sent election by the Board, but this consent was not obtained.
On November 12, 1937, the Commission reported a majority of
employees in the Company as having, by joining the Union, designated
the Union as their representative for collective bargaining. Approxi-
mately three weeks later there was another conference between the
Company's counsel and the Union's representative, at which time
counsel for the Company stated his belief that the best procedure
would be a hearing under the petition of November 9, 1937.
At the hearing the Company offered to stipulate that a secret ballot
be taken by the Board, and that the unit claimed by the Union be con-
sidered an appropriate unit for the purposes of such ballot. The
proffered stipulation was not accepted.
We find that a question has arisen concerning 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, occurring in connection with the operations of the Company
550 NATIONAL LABOR RELATIONS BOARD
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 in its petition claimed that all plant employees with the
exception of foremen , office and clerical help, and employees of the
box factory , constitute a unit appropriate for the purposes of collec-
tive bargaining . The Company makes no objection to the unit claimed
by the Union to be appropriate . This unit excludes all employees in
the shipping and delivery department , the Union not classifying
them as plant employees, since they deal with the finished product
after it has been placed in its consumer carton. The exclusion of the
shipping and delivery department employees is not unreasonable, is
desired by the petitioner , and is not objected to by the respondent.
The Union desires to include watchmen in the unit claimed to be
appropriate . The Company makes no objection . In the past we have
usually excluded watchmen from a bargaining unit composed pri-
marily of production employees on the basis of the differences in
function and interest of the two groups. We shall, however , permit
the watchmen to be included in this unit because of the fact that
neither party makes any objection to their inclusion , and because
to hold otherwise virtually would deprive the watchmen of collective
action and representation , since there is no other labor organization
at the plant to which they are eligible for membership.
The Union seeks to exclude employees of the box-making depart-
ment from the appropriate unit. One floor of the factory building
is occupied almost entirely by this department , which employs
about 15 persons . Boxes are not produced for sale, but only for the
use of the Company itself . There is some slight interchange of
personnel between the box-making and the other departments of the
plant, as occasion arises, but , as a whole, employees of the box -making
department devote themselves almost exclusively to this work. The
only functional coherence or interdependence between this department
and the others in the plant is that which exists between the distinct
branches of any manufacturing enterprise . Further, the fact that
there are other labor organizations to which this group of employees
is eligible for membership carries some weight, though in itself it is
not determinative of the point . The Company makes no objection to
the exclusion of this group from the bargaining unit.
We find that all plant employees of the Company including watch-
men but excluding foremen, office and clerical help, and employees
of the box -making department and the shipping and delivery depart-
DECISIONS AND ORDERS 551
ment, constitute a unit appropriate for the purposes of collective
bargaining and that said unit will insure to employees of the Com-
pany the full benefit of their right to self-organization and to collec-
tive bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The pay-roll list 2 shows 184 persons in the employ of the Company
on November 9, 1937, the date the Union filed its petition with the
Regional Director. Testimony at the hearing shows 51 employees to
be outside the unit found to be appropriate, leaving 133 persons in
the appropriate unit.
The Union claimed to represent these employees, alleging that a
majority of them had, by joining the Union, designated it as their
agent for purposes of collective bargaining. As proof of this alle-
gation there was introduced at the hearing a list 3 certified by a
notary public as having been copied from the official ledger of the
Union and purporting to be a list of the Company's employees who
were members of the Union.
At the hearing no check was made of the list of Company em-
ployees of November 9, 1937, against the list of Union members.
In such a check made by the Board, it was found that of the 77
persons in the Union membership list, 11 were not in the employ of
the Company on November 9, 1937; three more were ineligible for
Union membership, according to eligibility requirements testified to
at the hearing, and were not included in the number of the Com-
pany's employees determined to be in the appropriate unit. In
addition, in the case of at least three other names there are serious
doubts due to differences between the two lists in spelling and initials
of names. Deducting these three doubtful names, the three ineligible
persons, and the 11 who were not listed on the Company pay roll
from the 77 names on the Union membership list, there are left
only 60 employees of the Company who clearly are members° of the
Union. This is not a majority of the 133 employees in' the appro-
priate unit.
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by the
holding of an election by secret ballot. In accordance with our
usual practice, elegibility to vote in the election will be extended to
those who were in the employ of the Company, within the appropri-
ate unit, on the pay roll of November 9, 1937, the date of the petition,
exclusive of those who since have quit or have been discharged for
cause.
2 Board's Exhibit No 2 The pay-roll date of November 9, 1937, furnished by the
Company, was introduced in evidence and was relied on by the parties for purposes of
comparison
B Board's Exhibit No 3.
80535-38-36
552 NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the rep-
resentation of employees of J. , G. McDonald Chocolate Company,
Salt Lake City, Utah, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. All plant employees of J. G. McDonald Chocolate Company,
Salt Lake City, Utah, including watchmen but excluding foremen,
office and clerical help, and employees of the box factory and the
shipping and delivery department, constitute a unit appropriate for
the purposes 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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with the J. G.
McDonald Chocolate Company, Salt Lake City, Utah, an election by
secret ballot shall be conducted within a period of twenty (20) days
from the date of this Direction of Election, under the direction and
supervision of the Regional Director for the Twenty-second Region,
acting in this matter as the agent of the National Labor Relations
Board, and subject to Article III, Section 9, of said Rules and Regu-
lations, among all plant employees of J. G. McDonald Chocolate
Company, Salt Lake City, Utah, on the pay roll of said Company
on November 9, 1937, including watchmen but excluding foremen,
office and clerical help, employees of the box-making department and
the shipping and delivery department, and those who since have quit
or have been discharged for cause, to determine whether or not they
desire to be represented by Candy Workers' Local No. 373, Bakery
and Confectionery Workers' International Union of America, for
the purposes of collective bargaining.
SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
March 11,1938
On February 21, 1937, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in,
DECISIONS AND ORDERS 553
the above-entitled proceeding, the election to be held within twenty
(20) days from the date of the Direction, under the direction and
supervision of the Regional Director for the Twenty-second Region
(Denver, Colorado). The Board, having been advised that a longer
period is necessary, hereby amends the Direction of Election issued
on February 21, 1937, by striking therefrom the words "within
twenty (20) days from the date of this Direction" and substituting
therefor the words "within thirty (30) days from the date of this
Direction."