L. A. Nut House

National Labor Relations Board - Board Decisions

Mar 5, 1938

5 N.L.R.B. 799 (N.L.R.B. 1938)

In the Matter of L. A. NUT HOUSE and UNITED CRACKER, BAKERY &
CONFECTIONERY WORKERS OF AMERICA
Case No. R-354.-Decided March 5, 1938.
Nut, Fruit and Candy Packing and Processing Industry-Investigation of
Representatives : controversy concerning representation of employees: rival
organizations ; refusal by employer to recognize petitioning union as sole bar-
gaining agency-Unit Appropriate for Collective Bargaining: plant-wide , exclud-
ing office and supervisory employees , truck drivers , salesmen soliciting orders
outside place of business , and employees 'at branch store of employer ; eligibility
for membership in rival organizations ; dissimilarity of interests ; history of
organization at plant-Election Ordered
Mr. David Persinger and Mr. David Sokol, for the Board.
Loeb, Walker cC Loeb, by Mr. Edwin J. Loeb, of Los Angeles, Calif.,
for the Firm.
Mr. Carey McWilliams, of Los Angeles, Calif., for the United.
Rosecrans d Emme, by Mr. Leo H. Rosecrans, of Los Angeles,
Calif., for the Teamsters Local.
Mr. J. H. Krug, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
On September 25, 1937, United Cracker, Bakery and Confectionery
Workers of America,' herein called the United, filed With the Regional
Director for the Twenty-first Region (Los Angeles, California) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Los Angeles Nut House,2
Los Angeles, California, herein called the Firm, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On October 4, 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
'It appears from the record that the correct name of petitioner is United Cracker,
Bakery and Confectionery Workers of America, Local Industrial Union No. 212.
2 Los Angeles Nut House , referred to in the caption of the petition as L. A. Nut House,
is a copartnership composed of Ralph W . Gold and Sam Gendel.
799
800 NATIONAL LABOR RELATIONS BOARD
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On October 8, 1937, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Firm, upon the
United, and upon the Central Labor Councils of Los Angeles, Santa
Barbara, San Diego and Bakersfield, California. Pursuant to the
notice, a hearing was held on October 13, 1937, at Los Angeles, Cali-
fornia, before Clifford D. O'Brien, the Trial Examiner duly desig-
nated by the Board. The Board, the Firm, and the United were
represented by counsel and participated in the hearing. Two days
after the close of the hearing, on October 15, 1937, Produce Drivers
and Employees, No. 630, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Stablemen and Helpers, herein called the
Teamsters Local,3 filed with the Regional Director a motion in in-
tervention, asking that the record be reopened and that the Team-
sters Local be allowed to intervene, and alleging that it represented
a majority of the Firm's employees and had received no formal notice
of the hearing held on October 13, 1937.
On October 19, 1937, the Regional Director issued a notice that
the hearing would be reopened, copies of which were duly served
upon the Firm, the United, the International Brotherhood of Team-
sters, Chauffeurs, Stablemen and Helpers, herein called the Teamsters
International,and the Central Labor Council,Los Angeles, California.
Pursuant to the notice, the hearing was resumed on October 21, 1937,
at Los Angeles, California, before the same Trial Examiner. The
Board, the Firm, the United, and the Teamsters Local were repre-
sented by counsel and participated in the reopened hearing. Full
opportunity to be heard, to examine and to cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all par-
ties. 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 Exam-
iner 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 FIRM
The Firm is a copartnership, composed of Ralph W. Gold and
Sam Gendel, trading under the name and style of Los Angeles Nut
3It appears from the record that the correct name of the Teamsters Local is Produce
Drivers and Employees Union, Local No. 630, International Brotherhood of Teamsters,
Chauffeurs , Stablemen and Helpers.
DECISIONS AND ORDERS 801
House. -The Firm is a packer, jobber and processor of nuts, dried
fruits and candies. It occupies a six-story building in the Central
Market '4 Los Angeles, California, which building serves as a com-
bined warehouse and factory; the ground floor is used as a store.
The Firm purchases all its raw materials from local brokers, but a
substantial proportion is derived from sources outside the State of
California. The principal raw materials are peanuts, dates, dried
fruits and nuts. Peanuts constitute the chief raw material, and
dates rank next in importance. One hundred per cent of the peanuts,
75 per cent of the dates, and 10 per cent of the nuts originate outside
California; the dried fruits used by the Firm are all produced in
that State. During the year prior to the hearing, the Firm did a
gross business of slightly over $1,000,000. Approximately 25 per cent
of all sales are shipped to points outside the State of California.
Shipments of appreciable size are made to Seattle, Washington;
Portland, Oregon ; Phoenix, Arizona ; Utah ; Colorado and Hawaii.
The Firm sells extensively to a number of the larger chain store
companies, which frequently order shipments to be made by the
Firm directly to stores and warehouses in other States. The chain
stores take, perhaps, 90 per cent of all candy manufactured by the
Firm. It markets its product through a large number of brokers,
most of whom are located outside the State of California.
II. THE ORGANIZATIONS INVOLVED
United Cracker, Bakery and Confectionery Workers of America,
Local Industrial Union No. 212, is a labor organization affiliated with
the Committee for Industrial Organization, admitting to its mem-
bership employees of the Firm at the Central Market building, exclud-
ing truck drivers.
Produce Drivers and Employees Union, Local No. 630, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers,
is a labor organization affiliated with the American Federation of
Labor. It admits to its membership employees of the Firm at the
Central Market building, including truck drivers and floor salesmen
but excluding supervisory employees With the power to hire and dis-
charge.
III. THE QUESTION CONCERNING REPRESENTATION
In May 1937, the Teamsters Local, shortly after it was organized,
signed as menders all five truck drivers employed by the Firm. In
June the United began to organize the rest of the employees. Prior
' On one occasion in the record the market is referred to as the wholesale Terminal
Market. Usually , however, it is called the Central Market , and that designation will be
used herein.
SO2
NATIONAL LABOR RELATIONS BOARD
to September 1, the employees of the Firm were approached by organ-
izers from A. F. of L. unions other than the Teamsters Local, but at
this time the Teamsters Local secured jurisdiction to organize all the
employees, including floor salesmen. Early in September, the United
successfully negotiated with the Firm a 10-per cent wage increase for
its employees, but a few days later, the Firm refused to recognize the
United as the sole bargaining agency for its employees on the ground
that the Teamsters Local had signed up all the other establishments
in the Central Market and claimed to represent the employees of the
Firm.
We find that a question has arisen concerning representation of
employees of the Firm.
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 Firm de-
scribed in Section I above, has a close, intimate, and substantial rela-
tion 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
Officials of the United claimed that it had jurisdiction to admit to
.membership all the employees of the Firm at the Central Market
building. Neither the United nor the Teamsters Local sought to
include in the bargaining unit salesmen who solicited orders in the,
City of Los Angeles, or employees at the branch store of the Firm.
In the absence of any showing to the contrary, we find that these
.employees should be excluded. The record does not clearly reveal
whether or not the office workers are admitted to membership in the
United, or in the Teamsters Local. In accordance with our past
decisions, we find that the interests of the office force are essentially
dissimilar to those of the other employees, and, accordingly, we rule
that they should not be embraced within the unmt.5 The member-
ship lists furnished by both labor organizations contain the name
of a forelady, who is in charge of 25 employees in one of the packing
departments, but does not have the power to hire and discharge.
The interests of such a supervisory employee, although she does not
,hire or discharge, are closely identified with the management, and
the forelady should, therefore, not be admitted to the bargaining
unit.
6 See In the Matter o f R C. A. Manufacturing Company, Inc, and United Electrical A
Radio Workers of America , 2 N. L. R. B. 159.
DECISIONS AND ORDERS 803
The five truck drivers all became members of the Teamsters Local
as early as May 1937, and the United has made no effort to sign.
them. As this decision subsequently discloses , the Teamsters Local:
intends to retain the truck drivers as permanent members, but to.
transfer to another union the members it has obtained from other
employees of the Firm. The nature of the duties performed by the
truck drivers , the place of employment , and the history of organiza-
tion at the Firm, prompt us to set the drivers apart from other
employees . We find that the bargaining unit should exclude the
truck drivers.
The Teamsters Local claimed to represent the floor salesmen at
the Central Market building. The secretary-treasurer of the United
made a general statement at the hearing that "everybody in the
plant" was eligible for membership in his organization . Both labor
organizations have endeavored to organize workers at the Firm on
an industrial basis. The record fails to reveal the number of floor
salesmen or the precise nature of their duties . Undoubtedly, there.
exists certain dissimilarities between - them and the employees en-
gaged in packaging and processing the products of the Firm, but,,
under the circumstances , we feel that these distinctions are not suffi-
cient to justify exclusion of the floor salesmen from the bargaining
unit.
On the record before us, we find that the appropriate bargaining
unit should embrace employees at the Central Market building,
including floor salesmen but excluding supervisors , truck drivers,
office force , salesmen who solicit orders in the City of Los Angeles,,
and employees at the branch store of the Firm.
VI. THE DETERMINATION OF REPRESENTATIVES
The Teamsters Local business agent testified that while his unioly
had obtained jurisdiction to organize employees of the Firm and
the majority had been admitted to membership, their status was
temporary . Ultimately they would be transferred to another Ameri-
can Federation of Labor union , or, possibly, they would receive a.
separate charter as an affiliate of the Teamsters Local. Relying upon
this testimony , counsel for the United moved that all evidence pre-
sented by the intervenor be disregarded. He argued that the Firm
employees , other than the truck drivers, who had signed with the
intervenor , would be represented for collective bargaining by some
other union , which had made no appearance in the proceeding, and,.
hence, that the Teamsters Local should not be considered as a pos-
sible collective bargaining agent. It is clear , however, that although
workers at the Firm may not always be eligible to membership
in the Teamsters Local, they may desire to be represented by that
804 NATIONAL LABOR RELATIONS BOARD
Union for purposes of collective bargaining. The motion made by
counsel for the United was taken under advisement by the Trial
Examiner. It is hereby denied.
Counsel for the Teamsters Local contended that no election was
necessary for the determination of representatives, because his or-
ganization had submitted evidence that it represented a majority of
the employees in the appropriate unit. At the hearing, the Team-
sters Local presented a list of names of members taken from 90
application cards, which were offered in evidence and withdrawn by
consent of the parties. The list of members furnished by the United
contained 54 names. The total number of employees at the Central
Market building on October 21, 1937 was approximately 125, but
this figure may include the office force and others who should be
excluded from the bargaining unit. The membership lists presented
by the rival organizations apparently contain 46 duplications. It is
obvious, therefore, that neither the petitioner nor the intervenor has
made a clear showing that it represents a majority.' Furthermore,
there is evidence in the record indicating that the Teamsters Local's
membership drive at the Firm was accompanied by certain acts of
violence. Under all these circumstances, we find that the question
concerning representation which has arisen can best be resolved by
means of an election by secret ballot.
It remains for us to decide what date should be used for the deter-
mination of eligibility to vote. Selection of the date must have re-
gard to the highly seasonal character of the Firm's business. Dur-
ing the months of July and August the Firm employs approximately
70; with the beginning of September the number increases sharply,
and in November and December, at the very peak, the Firm employs
slightly more than 150; the number falls sharply in January, after
which there is a gradual decrease until the low point is reached in
the summer months. A number of persons are taken on as employees
year after year during the busy season, and frequently workers hired
for the first time in this period become permanent employees. At the
present time, some of those employed by the Firm at the date of the
filing of the petition have been discharged and, probably, a few
others, not then working for the Firm, have been taken on with a
permanent or semi-permanent status. Under all the circumstances,
we conclude that the most suitable date for determining eligibility
6 Of the 54 names submitted by the United , 37 were taken from signed application cards
which were offered in evidence and withdrawn by consent of the parties . The remaining
17 names were copied from unsigned application cards exhibited at the hearing. The
secretary -treasurer of the United offered testimony to explain the absence of signatures,
and we think this testimony warrants the view that at least 16 of the 17 have , evidenced
their desire to be represented by the United . But if we consider only the 37 signed cards,
32 are duplicates of names on the Teamsters Local list of 90, which leaves 58 not dupli-
cated ; we cannot say with assurance that this constitutes a majority In the appropriate
unit.
DECISIONS AND ORDERS 805
of voters is the date of this Direction of Election. Accordingly we
shall direct that those eligible to vote shall be those employees who
are on the weekly pay roll immediately preceding the date of this
Direction of Election, including floor salesmen but excluding the
office force, supervisory employees, truck drivers, salesmen who solicit
orders in the City of Los Angeles, employees'at the branch store of
the Firm, and those who have since voluntarily quit or have been
-discharged for cause.
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 repre-
sentation of employees of Ralph W. Gold and Sam Gendel, trading
under the name and style of Los Angeles Nut House, Los Angeles,
California, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. The employees of the Firm at its building in the Central Market,
Los Angeles, California, including floor salesmen but excluding the
office force, truck drivers, supervisory employees, salesmen who solicit
orders in the City of Los Angeles, and employees at the branch store
of the Firm, constitute a unit appropriate for the purposes of collec-
tive 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, 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 Ralph W.
Gold and Sam Gendel, a copartnership, trading under the name and
style of Los Angeles Nut House, Los Angeles, California, an election
by secret ballot shall be conducted within twenty (20) days from the
date of this Direction, under the direction and supervision of the
Regional Director for. the Twenty-first 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 the em-
ployees, who are on the weekly pay roll immediately preceding the
-date of this Direction, employed by said copartnership at the build-
ing occupied by it in the Central Market, Los Angeles, California,
:including floor salesmen, but excluding the office force, truck drivers,
806 NATIONAL LABOR RELATIONS BOARD
supervisory employees, salesmen who solicit orders in the City of
Los Angeles, and employees at the branch store of said copartner-
ship, and those who have since voluntarily quit or have been dis-
charged for cause, to determine whether they desire to be represented
for the purposes of collective bargaining by United Cracker, Bakery
and Confectionery Workers of America, Local Industrial Union
No. 212, affiliated with the Committee for Industrial Organization,
or by Produce Drivers and Employees Union, Local No. 630, Inter-
national Brotherhood of Teamsters, Chauffeurs, Stablemen and Help-
ers, affiliated with the American Federation of Labor, or by neither.