Surebest Bakers

National Labor Relations Board - Board Decisions

Feb 10, 1942

38 N.L.R.B. 1043 (N.L.R.B. 1942)

In the Matter of S. R. SHARP , DOING BUSINESS AS SUREBEST BAKERS and
UNITED BAKERY WORKERS LOCAL INDUSTRIAL UNION NO. 1145 (CIO)
Case No. R-34193.-Decided February 10, 1942
Jurisdiction : bakery products manufacturing and sales industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to recognize either of two competing unions until one or the other is
certified by the Board; election necessary.
Unit Appropriate for Collective Bargaining : all employees of the Company,
excluding supervisors; agreement as to; certain specifically named employees
found to be supervisory excluded.
Mr. H. E. Brockmoller, of El Paso, Texas, for the Company.
Mr. A. R. Hardesty, of San Antonio, Texas, for the United.
Mr. John P.' Simmons, of Chicago, Ill., for Bakery & Confectionery
Workers.
Mr. J. Benson Saks, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 7, 1941, United Bakery Workers Local Industrial
Union No. 1145, affiliated with the Congress of Industrial Organiza-
tions, herein called the United, filed with the Regional Director for the
Sixteenth Region (Fort Worth, Texas), a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of S. R. Sharp, doing business as Surebest Bakers, El
Paso, Texas, herein called the Company,' and requesting an investiga-
tion 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, 1941, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
1 The Company moved without objection and the Trial Examiner granted the motion to
amend the formal papers with respect to its name These papers carried the name as Sure-
best Bakers The change made is as indicated , viz , S R Sharp , doing business as Surebest
Bakers
38 N L R B., No 196.
1043,
1044' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 2, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On December 11, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
United, and Bakery & Confectionery Workers, International Union of
America, Local No. 225, affiliated with the American Federation of
Labor, herein called Bakery & Confectionery Workers. Pursuant to
notice, a hearing was held on December 18, 1941, at El Paso, Texas,
before Bliss Daffan, the Trial Examiner duly designated by the Chief
Trial Examiner. The Company, the United, and the Bakery & Con-
fectionery Workers were each represented by counsel; all participated
in the hearing. Full opportunity 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 Exam-
iner made several rulings on motions and on objections to the admis-
sion 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.
On January 14, 1942, the Company filed its brief which the Board
has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
S. R. Sharp, doing business as Surebest Bakers, in El Paso, Texas,
manufactures and sells bakery products. In aid of its salesmen the
Company also sells, without profit to it, so-called finished products
which are not manufactured by it. During the period from January
1 to December 1, 1941, the Company used raw materials valued at
approximately $156,498; approximately $7,549 worth were obtained
from states other than the State of Texas. During this period the
Company sold manufactured products of the value of $362,182; of
this amount $108,504 worth were sold and delivered to states other
than the State of Texas. During the same period of the finished
products bought and sold by the Company, $44,311 worth were pur-
chased, and $14,311 worth were sold, in states other than the State
of Texas.
II. THE ORGANIZATIONS INVOLVED
United Bakery Workers Local Industrial Union No. 1145 is a
labor organization affiliated with the Congress of Industrial Organi-
zations. It admits to membership employees of the Company.
S. R. SHARP 1045
Bakery & Confectionery Workers, International Union of America,
Local No. 225 is a labor organization affiliated with the American
Federation of Labor: It admits- to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
Both the United and the Bakery & Confectionery Workers sought
recognition of the Company a§ exclusive bargaining agent. The
Company took the position that : "We cannot recognize any organiza-
tion until such time as proof is offered that a majority of the employees
is represented by the organization demanding recognition." A re-
port prepared by the Field Examiner of the Board and admitted into
evidence at the hearing shows that the United and the Bakery &
Confectionery Workers each represents a substantial number of the
employees herein in question.2 We find that a question has arisen
concerning the 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 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
Subject to the exceptions noted below, the parties agree that all
employees of the Company excluding supervisors, constitute an ap-
propriate unit.
The United urges that P. A. Stevens, should be excluded allegedly
because he is not a regular employee. Bakery & Confectionery Workers
and the Company wish to include him. Although Stevens is night
watchman on Saturday nights and holidays only, he works 12 hours
every week, and is therefore clearly' a regular employee.. We shall
include him within the appropriate unit.
The United would exclude Evangelina Olrvera because she is not
employed at the plant proper. Bakery & Confectionery Workers and
The field Examiner reported as follows : The United submitted 36 cards, the signatures
on all of which appear to be genuine , and 9 of which v, ere duplicates . All these cards
bear dates from September 9, 1941 to November 2, 1941 All these names appear on the
Company's pay roll of November 22, 1941. Bakery & Confectionery workers presented a
total of 38 cards , all of which appear to contain genuine signatures , and 9 of which were
duplicates . These cards bear dates between October 23, 1941 and November 3, 1941.
Thirty-five signatures were the names of persons appearing on the Company's pay roll of
November 22, 1941 . According to the United 's petition , the Company employed approxi-
mately 60 in the unit desired.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company would include her. She sells stale bread and other
products for the Company at its old plant which is located one-mile
away from the present plant. She is paid a wage commensurate with
that of the other employees . Upon the entire record we find that she
should be included within the appropriate unit.
The United wishes to exclude employees hired by the Company
after September 6, 1941 , allegedly because they are only temporary
employees. Bakery & Confectionery Workers and the Company con-
tend that these people should be included within the unit. There are
6 employees in this category . Three of them were hired in connection
with a new department recently opened by the Company. The three
others were hired to replace employees in other departments. S. R.
Sharp, the owner , testified that these people were permanently em-
ployed . We find that the employees hired after September 6, 1941, are
not temporary employees and that they should be included within the
appropriate unit.
Although the parties agree on the exclusion of supervisors , they dis-
agree as to whether 6 named persons are or are not supervisory em-
ployees. The United contends that five of these people are supervisors
and should be excluded . Bakery & Confectionery Workers urges that
these 5 should be included within the unit. Bakery & Confectionery
Workers contends further that if the Board should exclude these five
persons, or any of them, then the sixth employee , Viola Vigil , should
also be excluded on the basis that her position is the same as that of the
other five persons . The Company would include three of these per-
sons, exclude two others , and is in doubt as to one.
The following five people are those whom the United wishes to ex-
clude because of the alleged supervisory character of their work :
E. S. Cousins , who the Company contends should be included within
the unit, does the general office tasks including secretarial , steno-
graphic, and bookkeeping work. She also does the filing but her main
employment is that of bookkeeper . She makes up the pay roll but
does not sign the checks ; she never transmits orders; she writes form
letters of recommendation for former employees ; these letters, how-
ever, are signed by other people . She is a notary public. We find
that she is not a supervisory employee and that she is within the
appropriate unit.
Cecil Phifer, is head of the shipping department . He instructs the
men working there on what products are to be wrapped . He is in
charge of both day and night shifts, though he is not present at night.
He makes out daily listings . Although the Company expresses doubt
as to whether or not he should be included within the unit, it is ad-
mitted that he has authority to make recommendations as to discharge-
ing. We find that he is a supervisor and that he is not within the
appropriate unit.
S. R. SHARP 1047
Norris Cotterill, whom the Company would include in the appro-
priate unit, is a baker. He is in charge of the pastry department.
Viola Vigil, forelady of the wrapping department, testified that the
five men in the pastry department were told that they were under
Cotterill. He instructs the men under him. We find that he is a
supervisory employee and we shall exclude him from the appropriate
unit.
Raymond Taylor, is the night shipping clerk. The Company would
include him within the appropriate unit. He checks all products
that leave the plant at night, and makes a record of such products. He
may neither hire nor discharge and makes no recommendations in this
connection. He is under Phifer. We find that he is not a supervisor
and we shall include him within the unit.
Faustino Rodriguez, whom the Company would exclude from the
appropriate unit, is a foreman. He is in charge of the 10 oven men,
as well as of the night shift. He instructs the men. He has authority
to recommend the hiring or discharging of employees. We find that
he is a supervisory employee and that he is not within the appropriate
unit.
The sixth employee in dispute, who, Bakery & Confectionery Work-
ers contends, should not be included since we have excluded Cecil
Phifer, Norris Cotterill, and Faustino Rodriguez, is Viola Vigil. She
is the forelady of the wrapping department in charge of five girls.
She lays out the work and checks the schedules to see that the depart-
ment is functioning properly. The Company also urges that she be
excluded from the appropriate unit. We find that she is a supervisor
and we shall exclude her from the appropriate unit.
We find that all employees of the Company, exclusive of Cecil
Phifer, Norris Cotterill, Faustino Rodriguez, and Viola Vigil, and
other supervisory employees constitute a unit appropriatel or the pur-
poses of collective bargaining, and that such unit will insure to
employees of the Company the full benefit of their right to self-
organization and to collective bargaining and will otherwise effectuate
the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot among the
employees in the appropriate unit whose names appear upon the Com-
pany's pay roll immediately preceding the date of our Direction of
Election, subject to the limitations and additions set forth in the
Direction.
Upon the basis of the above findings of fact and upon the entire
iecord in the case, the Board makes the following:
1048 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of S. R. Sharp, doing business as Surebest
Bakers, El Paso, Texas, within the meaning of Section 9 (c) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act.
2. All employees of the Company at El Paso, Texas, exclusive of
Cecil Phifer, Norris Cotterill. Faustino Rodriguez, and Viola Vigil,
and other supervisory employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the 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 Relations
Act, 49 Stat. 449, and pursuant to Article III, Section 8; of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with S. R. Sharp, doing business as Surebest Bakers, El Paso, Texas,
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 of
Election under the direction and supervision of the Regional Director
for the Sixteenth Region, acting in this matter as agent for the Na-
tional Labor Relations Board and subject to Article III, Section 9, of
said Rules and Regulations, among all employees of the Company at
El Paso, Texas, whose names appear upon the Company's pay roll
immediately preceding the date of this Direction of Election, includ-
ing any employees who did not work during said pay-roll period
because they were ill or on vacation, or in the active military service
or training of the United States and employees who were then or have
since been temporarily laid off, but excluding Cecil Phifer, Norris Cot-
terill, Faustino Rodriguez , and Viola Vigil, and other supervisory
employees and employees who have since quit or been discharged for
cause, to determine whether they desire to be represented by United
Bakery Workers Local Industrial Union No. 1145, affiliated with the
Congress of Industrial Organizations, or by Bakery & Confectionery
Workers, International Union of America, Local No. 225, affiliated
with the American Federation of Labor, for the purposes of collective
bargaining, or by neither.