S & S Cone Corp.

In the -Mattel;., of S & S CONE CORPORATION and UNITED CANDY & CONFECTIONERY EMPLOYEES 'UNION, LOCAL 50, CIO Case No. 2-R-4122.Decided July 13,1944 Tenzer, Greenblatt, Fallon & Kaplan, by Mr. Nathaniel R. Kaplan, of New- York City, for the Company. Liebowitz & Schunurn, by Messrs. Hermann Perlmutter and Simon Liebowitz, of New York City, for the CIO. Buitenkan,t & Cohen, by Messrs. Jacques B iitenkant and Arnold Cohen, of New York City, and M11r. David H. Ge f ter, of New York City, for'the AFL. Mr. Robert ,Silagi, of counsel to the Board. DECISION AND DIRECTION OF ELECTION' STATEMENT OF THE CASE Upon an amended petition duly filed by United Candy & Confec- tionery Employees Union, Local 50, CIO , herein called the CIO, c alleging that a question affecting'commerce had arisen concerning the representation of employees of S & S Cone Corporation , New York City, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon clue notice„before John J. Cuneo, Trial Examiner.' Said hearing was held at New' York City, on May 23 and 24, 1944. The Company, the CIO , and Candy & Con- fectionery Workers Union , Local No. 452, AFL, herein called the AFL, appeared and participated . All parties were afforded full opportunity to be heard ,' to examine and cross -examine witnesses, to, introduce evidence bearing on the issues, and to file briefs with the Board. The AFL moved to dismiss the petition and ruling on said- ,motion was referred to the Board by the Trial Examiner. For the reasons stated hereinafter , the motion is, hereby denied. The AFL requested oral argument . This request is hereby denied. Upon the entire record in the case , the Board makes the following 57 N. L. R. B., No. 48. 260, S & 'S. CONE CORPORATION \, FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY -261- S & S Cone Corporation is a New York corporation having its prin- cipal office and place of business in NeW York City, where it is engaged in the manufacture of ice cream cones and wafers. During the- 12-month period ending May 1, 1944, the Company purchased raw materials consisting of flour, sugar, and shortening valued in excess of $100,000, approximately 50 percent of which was shipped to it from places outside the State of New York. During that same, period of time the Company produced finished products valued in excess of ,;250,000, about one-third of which was sold and shipped to places `-outside the State of New York. - The Company admits that it is engaged in commerce within the- meaning, of the National Labor Relations Act. II. THE-ORGANIZATIONS INVOLVED United Candy & Confectionery Employees Union, Local 50, affili- nted with the Congress of Industrial Organizations, is a labor organ- ization admitting to membership employees of the Company. Candy & Confectionery'Workers -Union, Local No. 452, affiliated with the American Federation of Labor, is a 'labor organization ad- initting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or about February 14, 1944, a contract was'executed among the Confectioners Industrial Relations Board, Inc., hereinafter referred to as the Association,' the Company, and the AFL. By its terms, said contract provides for closed, shop. and is to remain effective until November 30, 1945. By'a directive of`the National War Labor Board, Issued February 26, 1944, an application by the Company for per- mission to grant a wage raise to its employees was partially granted and partially denied. Several weeks thereafter, at the beginning of April 1944, a spokesniali for the employees met with the Company's president and told him that the employees had' interviewed a National War Labor Board official and had been informed that, notwithstand- ing the directive, it was nevertlieless'possible for the Company to grant ad'd'itional raises without violating existing regulations of the National War Labor Board. The Company was,then requested to send a repre, Tlie,Association is' a trade organization of manufacturers in the confectionery industry, whose purpose , among other things, Is to act as the collective bargaining agency for its members - The Company became a member of the Association on the same date as the execution of the contract with the AFL. ^ 1 262 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD' 'sentative with' the employees to the offices of the Regional National War Labor Board to explore this possibility. The Company's presi- dent challenged the veracity of the spokesman's statements and re- fused his request. When the Company refused to'discuss the matter any further, a strike was declared. The strike lasted. until May 15, 1944, at which time a settlement was reached and the Company, offered to reinstate all strikers. As of the date of the hearing all but about 1G employees had been restored to their jobs and this residue has, been, promised reemployment as soon as the Company's operations permit. On April 4, 1944, the president of the Company was notified by the CIO that it represented a majority of the Company's employees, and a conference to negotiate a contract was arranged for .the following day. This conference was never held, for on that day, for the first time,,the CIO's representatives were informed of the existence of the closed-shop agreement with the AFL. Thereafter, on April 25, •1944, the CIO filed its petition herein. Both the Company and the AFL contend that their contract of Feb- ruary 14 precludes a present examination into the question concerning representation. We are not of this opinion. , Testimony adduced at the hearing indicates that, simultaneously with- the execution of the contract, a parole agreement among the parties was reached suspending the effective date of the contract until such time as certain conditions were met by the AFL; no evidence was adduced establishing that such conditions had been met. In any event, the record establishes that the parties failed to put into effect the terms and conditions of the contract and that the AFL had not represented, the Company's employees thereunder prior to April 4, 1944, the date on which notice of the CIO's conflicting claim to representation was presented to the Company. As we have stated recently,2 it is the effective date 'of the contract rather than the date of execution which is decisive; the contract must be oper- ative before it can render ineffectual a rival claim to representation. We find, therefore, that the contract of February 14, 1944, constitutes no bar ,to a present determination of representatives. J he AFL further contends that the doctrine of the American News cases is applicable to the case at bar and hence moves for a dismissal of the petition on the ground that the CIO encouraged and, agreed to represent- employees out on strike,as a result,of, their dissatisfaction,- with, the directive of the National,War Labor Board. We have grave doubts, although we do' not here determine,, thatthe principle, ex- pressed in American News is applicable to representation proceedings., . 2 See Matter of Foster-Grant Inc., 54 W.L. R. B.-802;, and Matter of Kimberly-Clark =Corporation, 55 N. L., R. B. 521. , , a Matter of American News Co., Inc., 55 N.,L.,R. B. 1802. S & S CONE- CORPORATION 263 However, assuming, arguendo , that such is the case, it would clearly have no application here. In the case cited, the employees struck for the'express purpose of compelling the employer to, violate the law by granting increases without authority , whereas, here, a strike was de- clared ' not with any illegal purpose but because of the employer's refusal to prosecute the application for wage increases to the conclu- sidn sought by the employees. Accordingly, we see no merit in the AFL's motion and it is hereby denied. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that both unions represent a substantial number of em- ployees in the unit hereinafter found appropriate.4 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and . (7) of the , Act., ' IV. TIE APPROPRIATE UNIT The CIO seeks a unit consisting of all production and maintenance employees including drivers and helpers, but excluding office clericals-, and supervisory employees. Neither the Company nor the AFL dis- putes the propriety of this unit except that they would include two "working foremen' whom the CIO would exclude. The Company employs, two foremen, one of whom is employed on: the day shift and the other on the night shift. According to the Com- pany, neither is a supervisory employee, although both are classified on its pay roll as "working foremen" and in its'- application to the National War Labor Board as "foremen." The evidence discloses that the day foreman repairs' broken machines but spends most of his, time` in supervision; that he is a salaried' employee who receives 30 to 40. ` percent moi'e than the hourly paid • employees whom he.supervises; and that on occasion he has hired 'employees. As to the nightjore- man, the record shows that he is the only employee on the night shift who gives orders to the other employees; that he is hourly paid but receives about 10 percent more than the employees whom he super- vises; and that he has the authority to grant overtime to the employees and also has the power, which he has exercised, to discharge'employees. Under' these circumstances we'are convinced, and find, that Ithe two'= 'The Field Examiner ' reported that the CIO submitted 41, authorisation cards, 136• of,which bore the names of persons appearing on the Company 's pay roll of March 29, 1944, which contained the names of 44' 'employ'ees in the appropriate unit, and that the cards were all dated bet*deen,April 3 and April 6, 1944. The AFL submitted 24 authorization cards, 23 of which bore the names of persons •appear- ing on the aforesaid pay roll. Six cards were dated between April 4 and April 8, 1944, and 17 , cards were undated. ' .264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working foremen are supervisory employees and we shall therefore exclude them from the unit. We find that all production and maintenance employees of the Com- pany including drivers and helpers, but excluding office clericals, work- ing foremen, and any other supervisory employees with authority to hire, promote,' discharge, discipline, or otherwise effect changes in the -status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION! OF REPRESENTATIVES It is urged by the AFL that only those employees who did not strike -plus the employees who were hired by the Company as replacements be permitted to vote in the election. The AFL further contends that in any event the employees who were on strike and who have, as yet, -not been rehired, be declared ineligible to vote.. The CIO on the other hand contends that the employees who were hired as replacements -during the pendency of the strike be deprived of their opportunity to vote. We. find no merit in either contention. The Company in set- tling its strike offered reemployment to all its employees and has in fact rehired all but a few of them whom it placed on a preferential list for reemployment as soon as operations permit. Under our well-set- -tled practice we shall declare eligible to vote all persons currently employed by the Company, including those on the preferential list .5 We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em -ployees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election, herein, including those employees on a preferential list for reemploy- ment, subject to the limitations and additions set forth in the Direc- -tion. 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, .and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with S & S Cone Cor- poration, New York City, 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, under the direction and supervision of the Regional 5 See Matter of Rudolph Wurlitzer Company, 32 N. L. R. B. 163. S & S CONE CORPORATION 265 Director for the Second Region , acting in this matter as agent for the• National Labor Relations Board, and subject to Article III, Sections- 10 and 11, of said Rules and Regulations , among the employees in the unit found appropriate in Section IV, above, who were employed dur- ing the pay-roll period immediately preceding the date of this Direc- tion, including those employees who were on strike 2nd have not yet been rehired , including employees who did not work during the said pay-roll period because they were ill or on vacation or temporarily- laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding- those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by Local 50, C107' or by Candy & Confectionery Workers Union, Local No. 452, AFL,. for the purposes of collective bargaining or by neither. s A request to appear thus on the ballot is hereby granted.