V. La Rosa & Sons, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1938

10 N.L.R.B. 218 (N.L.R.B. 1938)

In the Matter of V. LA R OSA & SONS, INC. and COMMITTEE FOR IN-
DUSTRIAL ORGANIZATION ON BEHALF OF THE EMPLOYEES OF V.
LA ROSA & SONS, INC.
In the Matter of V. LA ROSA & SONS, INC. and MACARONI & NOODLE
WORKERS, L. I. U. No. 633 , AFFILIATED WITH THE COMMITTEE FOR
INDUSTRIAL ORGANIZATION
Cases Nos. R-978 and C-809, respectively.Decided December 6, 1938
Macaroni Products Manufacturing Industry-Settlement : stipulation provid-
ing for reinstatement of discharged employee , withdrawal of recognition of
company-dominated union , and recognition of complaining union as collective
bargaining agent for employees-Order: entered on stipulation-Investigation of
Representatives : petition for, dismissed, in view of order to bargain.
Mr. Christopher W. Hoey, for the Board.
Mr. Charles W. Philipbar and Mr. Charles W. Philipbar, Jr., of
New York City, for the respondent.
Mr. Joseph Jordan, of New York City, for the Collective Bargain-
ing Committee.
Mr. Michael Ricciardelli, of New York City, for Local No. 663.
Mr. Langdon West, of counsel to the Board. _
DECISION
AND
ORDER
STATEMENT OF THE CASE
On December 6, 1937, the Committee for Industrial Organization
on behalf of the employees of V. La Rosa & Sons, Inc., filed with the
Regional Director for the Second Region (New York City), a peti-
tion alleging that a question affecting commerce had arisen con-
cerning the representation of employees of V. La Rosa & Sons, Inc.,
New York City, herein called the respondent, and requested an inves-
tigation and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called
the Act.
On January 17, 1938, Macaroni & Noodle Workers Local Industrial
Union No. 663,1 herein called Local No. 663, affiliated with the Com-
' In the pleadings the name was abbreviated to Macaroni & Noodle Workers, L I. U.
No. 663.
10 N. L. R. B, No. 15.
218
DECISIONS AND ORDERS 219
mittee for Industrial Organization, filed charges with the Regional
Director for the Second Region against the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1),
(2), and (5) of the Act. On February 7, 1938, the National Labor
Relations Board, herein called the Board , acting pursuant to Article
III, Sections 3 and 10 (c) (2), and Article II, Section 37 (b), of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered a consolidation of these cases and ordered an in-
vestigation of the question concerning representation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On April 4, 1938, and on July 1, 1938, respectively, the Board by
the Regional Director issued its complaint and amendment thereto
against the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7)
of the Act. The complaint, notice of hearing thereon, and amendment
to the complaint, were duly served upon the respondent, Local No.
663, and on an unaffiliated labor organization of the respondent's
employees known as V. La Rosa Employees Association and as the
Collective Bargaining Committee of the Employees of V. La Rosa &
Sons, Inc., herein called the Collective Bargaining Committee. The
petition and notice of hearing thereon were also served upon the same
parties.
Concerning the unfair labor practices the complaint, as amended,
alleged in substance that, although a majority of the respondent's
employees in a unit appropriate for the purposes of collective bar-
gaining designated Local No. 663 as their representative, the respond-
ent refused to bargain with Local No. 663; that the respondent
dominated and interfered with the formation and administration of
the Collective Bargaining Committee; and that the respondent, by the
aforesaid acts and by urging, persuading, and warning its employees
to refrain from becoming or remaining members of Local No. 663,
by threatening its employees with reprisals for joining Local No. 663,
and by other acts, interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
The respondent filed its answer dated April 7, 1938, in which it
admitted the allegations concerning the nature and scope of its
business and that it had refused to bargain with Local No. 663. The
respondent in its answer moved to dismiss the complaint on the
grounds that the allegations of the complaint were not supported by
the allegations of the charge and that the charge. failed to comply
with the Rules and Regulations of the Board. On April 12, 1938,
the Collective Bargaining Committee filed its petition to intervene in
220 NATIONAL LABOR RELATIONS BOARD
the representation case, and thereafter this petition was granted by
the Regional Director. -
Pursuant to notice, a hearing was held on July 8, 12, 13,-14, 15,
18, 19, 20, 21, 22, and 25, 1938, at Nev,, York City, before Paul Davier,
the Trial Examiner duly designated by the Board. All parties par-
ticipated in the hearing, and were represented by counsel. 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 Examiner made
several rulings on motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed. During the hearing an oral stipulation, which
had been agreed to by the parties, concerning the nature and scope
of the respondent's business, was read into the record without
objection.
On July 12, 1938, the Trial Examiner granted the motion made by
counsel for the Collective Bargaining Committee to extend its inter-
vention to that part of the case involving the allegation that the
respondent had dominated and interfered with the formation and ad-
ministration of the Collective Bargaining Committee. Thereafter
the Trial Examiner granted the motion made by counsel for the
Board to amend the complaint so as to allege the discriminatory dis-
charge of one employee within the meaning of Section 8 (3) of
the Act.2 The Trial Examiner also granted the motion made by
counsel for the respondent to amend the respondent' s answer so as to
deny this further allegation.
During the hearing on July 25, 1938, the respondent, Local No. 663,
and counsel for the Board entered into a stipulation concerning the
terms of a consent order which the Board could enter in the case upon
its approval of the stipulation. This stipulation provides as follows :
In settlement of this case, V. La Rosa & Sons, Inc., Macaroni
& Noodle Workers Local Industrial Union 663, affiliated with
the Committee for Industrial Organization and National Labor
Relations Board, Second Region , through its attorney, agree as
follows :
1. V. La Rosa & Sons, Inc., at its Brooklyn plant, located at
473 Kent Avenue, Borough of Brooklyn, City and State of.New
York, shall cease and desist :
(a) From interfering with, restraining or coercing its employ-
ees in the exercise of the right to form and join or assist labor
organizations to bargain collectively -through representatives of
2 On July 21 , 1938, Local No. 663 filed with the Regional Director a supplemental charge
in support of this amendment to the complaint . It was received in evidence at the hearing
on the same date.
DECISIONS AND ORDERS 221
their own choosing and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or
protection.
(b) From dominating or interfering with the formation or
administration of any labor organization and from contributing
support of any kind to any labor organization.
(c) From discouraging membership in Macaroni & Noodle
Workers Local Industrial Union 663 affiliated with Committee
for Industrial Organization , or any other labor organization by
discrimination in regard to hire and tenure of employment or
any term or condition of employment.
(d) From refusing to bargain collectively with Macaroni &
Noodle Workers Local Industrial Union 663 affiliated with Com-
mittee for Industrial Organization as the exclusive representative
of its plant , production , packaging and maintenance employees in
the said Brooklyn plant located at 473 Kent Avenue, Brooklyn,
New York, exclusive of salesmen , chauffeurs , and chauffeurs'
helpers and supervisory and clerical employees . The clerical
employees , include all employees in the office building at 473
Kent Avenue , Brooklyn , namely, office help, advertising employ-
ees, premium workers and the one employee now classified as a
kitchen employee.
2. That V. La Rosa & Sons , Inc., will take the following
affirmative action in order to effectuate the policies 'of the
National Labor Relations Act :
(a) Withdraw all recognition at its Brooklyn plant from the
Collective Bargaining Committee of the employees of V. La Rosa
& Sons, Inc., and from La Rosa Employees Association as repre-
sentatives of its employees , at said Brooklyn plant, for the pur-
pose of dealing With V . La Rosa & Sons, Inc., concerning griev-
ances, labor disputes , wages, rates of pay, hours of employment,
or conditions of work, and completely disestablish said Collec-
tive Bargaining Committee of the employees at V. La Rosa &
Sons , Inc., and La Rosa Employees Association as such represent-
atives.
(b) Offer to Thomas Tortomasi full reinstatement on or before
August 8, 1938, as , an employee of the respondent , such reem-
ployment to be not necessarily in the same position held by him
on April 11, 1938, but in a similar position without prejudice to
his seniority or other rights.
(c) Upon request bargaining collectively with Macaroni &
Noodle Workers Local Industrial Union 663 affiliated with Com-
mittee for Industrial Organization as the exclusive representa-
tive for Collective Bargaining purposes of its plant , production,
packaging and maintenance employees at 473 Kent Avenue,
222-,, NATIONAL LABOR RELATIONS BOARD
Brooklyn plant of the respondent, exclusive of salesmen, chauf-
feurs and chauffeurs' helpers and supervisory and clerical em-
ployees, (the term clerical employees being intended to' have
the same meaning as indicated in paragraph 1-C, [Sic] of this
stipulation) with respect to 'rates of pay, wages, hours of em-
ployment and other conditions of employment of the plant pro-
duction, packaging and maintenance employees.
(d) Post notices in conspicuous places throughout its 473 Kent
Avenue plant stating (1) that respondent will cease and desist as
provided above; (2) that such notices will remain posted for a
period of at least thirty (30) days from the date of posting, and,
(3) that the Collective Bargaining Committee of Employees of
V. La Rosa & Sons, Inc., and La Rosa Employees Association are
disestablished as representatives of respondents' employees at its
Brooklyn plant and that respondent will refrain from any recog-
nition thereof as such representatives.
3. An order based on the terms of this agreement may be made
by the National Labor Relations Board.
4. A consent decree embodying the substance of the above order
of the Board may be entered by the Circuit Court of Appeals
of the appropriate circuit upon application by the Board without
notice to any parties. -
5. This stipulation is submitted subject to the approval of the
National Labor Relations Board at Washington, D.. C.
On August 2, 1938, the respondent, Local No. 663, and counsel for
the Board entered into an amendment to the above-mentioned stipula-
tion empowering the Board to make findings of fact concerning the
respondent's business based on testimony adduced at the- hearing.
On August 16, 1938, the Board issued an order approving the above
stipulation, making it part of the record, and transferring the pro-
ceeding to the Board for the purpose of entry of a decision and order
by the Board pursuant to the provisions of the stipulation.
On October 10, 1938, the respondent, Local No. 663, the Collective
Bargaining Committee, and counsel for the Board entered into a
further stipulation providing for the use of photostatic copies in
place of the original exhibits introduced by the Collective Bargaining
Committee. On October 27, 1938, the Board issued its order granting
the request of the Collective Bargaining Committee to withdraw its
exhibits and substitute therefor photostatic copies.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a New York corporation, is engaged in the manu-
facture of macaroni products, with its plant at New York City.
DECISIONS AND ORDERS 223
The principal raw materials used by the respondent in its operations
are semolina, eggs, and flour. The respondent also purchases card-
board and paper for packing purposes. For the year 1937 the total
amount of raw materials used by the respondent amounted in value to
$1,398,421.91. About 75 per cent of the semolina and flour and about
5 per cent of the packing materials used in the respondent's operations
are shipped to the respondent's plant from points outside the State
of New York. During the year the total value of finished products
sold by the respondent amounted to $2,362,441.29. About 45 per cent
of these products were shipped to points outside the State of
New York.
We find that the above-described operations constitute a continuous
flow of trade, traffic, and commerce among the several States.
ORDER
Upon the basis of the above findings of fact, the stipulation, and
the entire record in the case, and pursuant to Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
hereby orders that V. La Rosa & Sons, Inc., New York, New York,
shall :
1. Cease and desist from :
(a) Interfering with, restraining, or coercing its employees in the
exercise of the right to form and join or assist labor organizations to
bargain collectively through representatives of their own choosing and
to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection;
(b) Dominating or interfering with the formation or administra-
tion of any labor organization and from contributing support of any
kind to any labor organization;
(c) Discouraging membership in Macaroni & Noodle Workers
Local Industrial Union No. 663 affiliated with Committee for Indus-
trial Organization, or any other labor organization by discrimination
in regard to hire and tenure of employment or any term or condition
of employment;
(d) Refusing to bargain collectively with Macaroni & Noodle Work-
ers Local Industrial Union No. 663 affiliated with Committee for
Industrial Organization as the exclusive representative of its plant,
production, packaging and maintenance employees in the said Brook-
lyn plant located at 473 Kent Avenue, Brooklyn, New York, exclusive
of salesmen, chauffeurs and chauffeurs' helpers, and supervisory and
clerical employees. The clerical employees include all employees in
the office building at 473 Kent Avenue, Brooklyn, namely, office help,
advertising employees, premium workers, and the one employee now
classified as a kitchen employee.
224 NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition at its Brooklyn plant from the Col-
lective Bargaining Committee of the Employees of V. La Rosa &
Sons, Inc., and from La Rosa Employees Association as representa-
tives of its employees, at said Brooklyn plant, for the purpose of
dealing with V. La Rosa & Sons, Inc., concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions of
work, and completely disestablish the said Collective Bargaining Com-
mittee of the Employees at V. La Rosa & Sons, Inc., and La Rosa
Employees Association as such representatives;
(b) Offer to Thomas Tortomasi full reinstatement on or before
August 8, 1938, as an employee of the respondent, such reemployment
to be not necessarily in the same position held by him on April 11,
1938, but in a similar position without prejudice to his seniority or
other rights;
(c) Upon request bargain collectively with Macaroni & Noodle
Workers Local Industrial Union No. 663 affiliated with Committee
for Industrial Organization as the exclusive representative for col-
lective bargaining purposes of its plant,' production, packaging and
maintenance employees at 473 Kent Avenue, Brooklyn plant of the
respondent, exclusive of salesmen, chauffeurs and chauffeurs' helpers,
and supervisory and clerical employees (the term clerical employees
being intended to have the same meaning as indicated in paragraph
1-d, of this Order), with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment of the plant produc-
tion, packaging and maintenance employees;
(d) Post notices in conspicuous places throughout its 473 Kent
Avenue plant stating (1) - that respondent will cease and desist as
provided above; (2) that such notices will remain posted for a period
of at least thirty (30) days from the date of posting; and (3) that
the Collective Bargaining Committee of Employees of V. La Rosa &
Sons; Inc., and La Rosa Employees Association are disestablished as
representatives of respondent's employees at its Brooklyn plant and
that the respondent will refrain from any recognition thereof as such
representatives;
(e) Notify the Regional Director for the Second Region in writing
within thirty (30) days from the date of this Order what steps the,
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the petition for an investigation and
certification of representatives pursuant to Section 9 (c) of the Act,
filed by the 'Committee for Industrial Organization on behalf of the
employees of V. La Rosa & Sons, Inc. be, and it hereby is, dismissed.