National Candy Co., Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1938

7 N.L.R.B. 1207 (N.L.R.B. 1938)

In the Matter of NATIONAL CANDY COMPANY, INC., VERIBRITE FAC-
TORY and LOCAL 351 CANDY WORKERS, AFFILIATED WITH BAKERY
AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF 2^_MPRICA
(A. F. OF L. AFFIL.)
Case No. R-753.-Decided June 07, 1938
Candy Manufacturing Industry Investigation of Representatives: contro-
versy concerning representation of employees: controversy concerning appro-
priate unit ; employer's refusal to grant recognition of union ; petition for, who
may file-Unit Appropriate for Collective Bargaining: production and mainte-
nance employees, including packers and elevator operators, but excluding depart-
ment heads, supervisors, office and clerical employees, cost department employ-
ees, truck drivers, night watchmen, engineers, firemen, and employees in ship-
ping and receiving department ; occupational differences-Election Ordered
Mr. Hyman Abraham Schulson, for the Board.
Mr. Otto A. Jaburek, of Chicago, Ill., for the Company.
Mr. Abraham W. Brussel, of Chicago, Ill., for the Union.
Mr. Robert L. Condon, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 17, 1938, Candy Workers Local 351, affiliated with
Bakery and Confectionery Workers International Union of America,'
filed with the Regional Director for the Thirteenth Region (Chicago,
Illinois) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the Veribrite
Factory of the National Candy Company, Inc., Chicago, Illinois,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On April
'By a second amended petition Bakery and Confectionery Workers International Union
of America, herein called the Union, was substituted for Candy Workers Local 351 as the
petitioner. For the propriety of this amendment, see infra, Section II,
106791-38-vol. VII-77 1207
1208 NATIONAL LABOR 'RELATIONS BOARD
14, 1938, 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 Regula-
tions-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 May 3, 19318, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and upon the
Union. On May 4, 1938, the Regional Director issued an Order and
Notice of Continuance, copies of which were duly served upon those
parties upon whom the original notice of hearing had been served.
On May 7, 1938, the Regional Director issued an amended notice of
hearing, which the Company and the Union stipulated in the record
they received. Thereafter the Union filed an amended petition, and
on May 12, 1938, a second amended petition. Pursuant to the
amended notice, a hearing was held on May 14, 1938, at Chicago,
Illinois, before Horace A. Ruckel, the Trial Examiner duly desig-
nated by the Board. The Board, the Company, and the Union were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and 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
1. THE BUSINESS OF THE COMPANY
National Candy Company , Inc., is a New Jersey corporation,
engaged in the manufacture, sale, and distribution of confections.
The Company operates the Veribrite factory in Chicago, Illinois, the
Pan Confectionery factory in Chicago, Illinois, and branches in
Kansas City, Missouri, Grand Rapids, Michigan, and Cincinnati,
Ohio. The general offices of the Company are in St. Louis, Missouri.
This proceeding is concerned solely with the employees of the Veri-
brite factory in Chicago.
The Company, with its several branches, is one of the larger candy
manufacturing companies in the United States. The Veribrite fac-
tory uses, among other things, the following raw materials : Sugar,
corn sugar , corn syrup , chocolate , starch, flavors, flavoring extracts,
nuts, licorice, glycerin , gum arabic, and egg albumin . For the pur-
DECISIONS AND ORDERS 1209,
poses of packing and shipping its finished products, the Veribrite
factory uses boxes, cases, cartons, barrels, bales, sealing wax, string,
gum, and twine. During the year from March 1, 1937, to February
28, 1938, the Veribrite factory used approximately 4,700 tons of raw
materials. Approximately 99 per cent of these raw materials were
received from outside the State of Illinois. The approximate mone-
tary value of these raw materials received from outside the State of
Illinois was $440,000. During this same period, the Veribrite factory
sold 4,800 tons of its finished product. Approximately 72 per cent
of the finished product, with an approximate monetary value of
$680,000, was transported from the Veribrite factory to States other
than the State of Illinois.
The Company admits that it is subject to the jurisdiction of the
Board.
II. THE ORGANIZATION INVOLVED
Bakery and Confectionery Workers International Union of Amer-
ica is a labor organization affiliated with the American Federation
of Labor. On May 3, 1937, it chartered Candy Workers Local 351,
which admits to its membership all production and maintenance
employees of the Company at its Veribrite factory, including packers
and elevator operators, but excluding department heads, supervisors,
office and clerical workers, shipping and receiving clerks, cost depart-
ment employees, truck drivers, night watchmen, engineers, and
firemen.
The original petition in this case was filed by Candy Workers
Local 351, but the second amended petition substituted the Union for
the Local. At the hearing, the Company objected to this substitu-
tion. The record shows that the Union usually negotiates agreements
for its locals, and that agreements to which Candy Workers Local
351 is a party must be approved by the Union. In view of this fact
and since Article III, Section 1, of National Labor Relations Board
Rules and Regulations-Series 1, as amended, provides that a peti-
tion may be filed by any employee or labor organization acting on
his behalf, we find the substitution was proper.
III. THE QUESTION CONCERNING REPRESENTATION
The Union began to organize the employees of the Veribrite fac-
tory in December 1937. On March 3, 1938, representatives from the
Union met with the manager of the Veribrite factory and requested
the latter to bargain collectively with the Union. At this meeting
the Union claimed to represent a majority of the production and
maintenance employees and presented a proposed agreement for the
consideration of the Company. The manager of the Veribrite fac-
1210 NATIONAL LABOR RELATIONS BOARD
tory denied the Union's claim of majority, and in addition suggested
a later meeting so that the manager might obtain from the Com-
pany's president, authority to negotiate with the Union. A second
meeting was held between representatives of the Union and the man-
ager of the Veribrite factory on March 16, 1938. At this meeting
the manager of the Veribrite factory stated that he had obtained
authority to bargain, but that he refused to do so on the ground that
the Union did not represent a majority of the employees in the
appropriate unit. The Company refuses to consent to an election.
We find that a question has arisen concerning representation of
employees of the Company at its Veribrite factory.
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
at its Veribrite factory 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 burden-
ing and obstructing commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
Both the Company and the Union have agreed that an appropriate
unit for the purposes of collective bargaining should include all
employees of the Veribrite plant engaged in production and mainte-
nance, including packers and elevator operators, except department
heads, supervisors, office and clerical employees, cost department
employees, truck drivers, night watchmen, engineers, and firemen.
The Company contends that this unit should also include employees
in the shipping and receiving department. The Union opposes this
contention and urges that these employees be excluded from the unit
and also asks for the exclusion of John Connelly, who is listed on the
pay roll as a "packer" but who works in the shipping room.
There are seven employees in the shipping and receiving depart-
ment. Their work is largely clerical, consisting mainly of assembling
orders, checking invoices, writing bills of lading, and marking cases.
Although two of these employees filled out application cards to the
Union, they have since been rejected by the Union. The Union has
not solicited these employees and considers them ineligible for mem-
bership, as they do not at any time directly work in the production
of candy. We find it proper, therefore, to exclude the employees of
the shipping and receiving department from the unit.
John Connelly is listed on the pay roll as a "packer," but it is his
duty to prepare, assemble, and make ready for delivery shipments
DECISIONS AND ORDERS 1211
for the city of Chicago, Illinois. Connelly works in the shipping
and receiving department and his duties are similar to those of the
other shipping and receiving department employees. Connelly,
therefore, will also be excluded from the unit.
We find the employees of the Company at its Veribrite factory,
engaged in production and maintenance, including packers and ele-
vator operators, but excluding department heads, supervisors, office
and clerical employees, cost department employees, . truck drivers,
night watchmen, engineers, firemen, members of the shipping and
receiving department, and John Connelly, constitute a unit appro-
priate for collective bargaining and that said unit will insure to the
employees of the Company at its Veribrite factory the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
Although it claimed to represent a majority of the appropriate
unit, the Union did not produce at the hearing any proof to show
how many employees were members. We accordingly find that an
election by secret ballot is necessary to resolve the question concern-
ing representation.
At the meeting between the representatives of the Union and the
manager of the Veribrite factory on March '3, 1938, it was agreed
that if an election were ordered by the Board the pay roll as of that
-date should be used to determine eligibility for participation in the
election. There was no pay roll on March 3, 1938, and the Union,
contends that the next pay roll, that of March 15, 1938, should be the
pay roll used. The Company opposes this contention and urges that
the pay roll of February 28, 1938, the closest in time to March 3,
1938, was the one intended. An examination of the record discloses
that with but three exceptions the pay rolls are identical. Since the
pay roll of March 15, 1938, is the next preceding the date of the filing
of the petition herein, we find that eligibility to vote should be deter-
mined on the basis of that pay roll. Therefore, we find it unneces-
sary to decide what was intended by the oral agreement of March 3,
1938.
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 the Company at its Veribrite factory,
Chicago, Illinois, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.
1212 NATIONAL LABOR RELATIONS BOARD
2. The employees of the Company at its Veribrite factory, Chi-
cago, Illinois, engaged in production and maintenance, including
packers and elevator operators, but excluding department heads,
supervisors, office and clerical employees, cost department employees,
truck drivers, night watchmen, engineers, firemen, members of the
shipping and receiving department, and John Connelly, 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, 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 a part of the investigation ordered by the Board
to ascertain representatives for collective bargaining with National
Candy Company, Inc., at its Veribrite factory, Chicago, Illinois, an
election by secret ballot shall be conducted within fifteen (15) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Thirteenth 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
employees of National Candy Company, Inc., at its Veribrite fac-
tory, Chicago, Illinois, who were employed by it during the pay-roll
period immediately preceding March 15, 1938, engaged in production
and maintenance, including, packers and elevator operators, but
excluding department heads, supervisors, office and clerical employees,
cost department employees, truck drivers, night watchmen, engineers,
firemen, members of the shipping and receiving department, John
Connelly, and those who have since quit or been discharged for cause,
to determine whether or not they desire to be represented by Bakery
and Confectionery Workers International Union of America, for the
purposes of collective bargaining.