Grocers' Biscuit Co., Inc.

In the Matter Of GROCERS' BISCUIT COMPANY, INC., EMPLOYER and BAKERY & CONFECTIONERY WORKERS' INTERNATIONAL UNION OF AMERICA, LOCAL 384, AMERICAN FEDERATION OF LABOR, PETITIONER Case No. 9-RC-508.-Decided August 9, 1949 DECISION AND DIRECTION OF ELECTION Upon a second amended petition duly filed, a hearing in this matter was held before William Naimark, hearing officer. Atlthe hearing, the Employer moved to dismiss the petition upon various grounds stated below. The hearing officer reserved ruling on the motion for the Board. For reasons stated hereinafter the motion is denied) The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with 1 The hearing officer properly rejected the Employer 's offer to prove that the Petitioner did not represent a majority of the Employer 's employees . See Matter of 0. D. Jennings, 68 N. L . R. B. 516 . The Employer further attempted to prove that the Petitioner's authorization cards were obtained by misrepresentation , deceit, intimidation , and coercion. For reasons stated in Matter of General Plywood Corporation, 79 N. L. R. B. 1458, the hearing officer properly rejected such evidence. The Employer also asserts in support of its motion to dismiss that it was entitled to, and denied the opportunity to inspect the data pertaining to the Petitioner ' s compliance with Section 9 of the Act . For reasons stated in Matter of General Plywood Corporation, supra, we find no merit in this contention. . The Employer further moved to dismiss upon the ground that the Petitioner never requested recognition as bargaining agent of the employees involved and that the Employer has never refused such recognition . Since a representative of the Employer, at the hear- ing, refused to recognize the Petitioner as bargaining agent of employees of the Employer, we find no merit in this contention . See Matter of Advance Pattern Company, 80 N. L. R. B. 29. The Employer moved to dismiss the proceeding upon the ground that it was not duly furnished copies of the original and first amended petitions. The Employer was fur- nished a copy of the second amended final petition on May 25, 1949, prior to the hearing on June 3 , 1949. Although the Employer did not receive copies of the original and first amended petition until June 1, 1949 , it was advised by the Regional Director 's letter dated May 4, 1949, that a petition had been filed , and which letter also contained the description of the unit sought. We believe that the Employer had sufficient notice of all claims contained in the original , first amended and second amended petition . Further- more, the Employer does not plead surprise , makes no showing of prejudice , and par- ticipated fully at the hearing . See Matter of La Salle-Crittenden Press, Inc., 72 N . L. R. B. 1166. The Employer also contends that the proceding should be dismissed upon the ground that the Regional Director failed to investigate this matter in conformity with Section 9' (c) of the Act. We are administratively satisfied with the investigation in this case. Accordingly , we find no merit in this contention. 85 N. L. R. B., No. 110. 603 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case to a three-member panel [Members Reynolds, Murdock and Gray]. Upon the entire record in this case, the Board finds : 1. The Employer is primarily engaged, at its only plant, in Louis Ville, Kentucky, in the manufacturing and wholesale distribution of biscuits and crackers 2 During the most recent 12-month period,.the Employer's purchases of raw materials amounted to approximately $525,000, of which amount over 40 percent was shipped directly to the Employer from out of State: In addition to the raw materials, the Employer purchased about $210,000 of packaging materials, of which amount 55 percent was shipped directly to the Employer from out of State. During this same period, the Employer sold approximately $1,300,000 of merchandise, of which $450,000 represents sales made outside the State of Kentucky. We find, contrary to the contention of the Employer, that it is engaged in commerce within the meaning of the National Labor Re- lations Act.' 2. The Petitioner, a labor organization, claims to represent em- ployees of the Employer. - 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The Petitioner, in its second amended petition, proposed a unit of all production and maintenance employees at the Employer's Louis- ville, Kentucky, plant, excluding truck drivers, office and clerical employees, professional employees, guards, and supervisors as defined in the Act. Among the various grounds contained in the Employer's motion to dismiss the petition, was that the proposed unit is inappropriate be- cause it sought to exclude truck drivers therefrom; that it did not specifically exclude executives, salesmen, administrative employees, watchmen, foremen and foreladies; and because the petition inaccur- ately states the number of employees in such unit.4 The Petitioner agreed at the conclusion of the hearing to include truck drivers in the unit in the event the Board is of the opinion 2 The Employer moved to dismiss the petition upon the ground that the petition in- appropriately described its business as also including the manufacturing of "cakes." we, do not believe the Employer was prejudiced by such a technical discrepancy. 8 See Matter of Ideal Baking Company, 85 N. L . R. B. 13 ; Matter of Caskey Baking, Company, 80 N. L. R. B. 374; Matter of Phoenix Pie Company, 79 N. L. R. B. 754; Matter of Superior Bakery, 78 N. L. R. B . 1127. Cf. Matter of Fehr Baking Company, 79 N. L. R. B. 440 ; Matter of , Sta-Kleen Bakery, Inc., 78 N . L. R. B. 798. 4 The first and second of these objections are disposed of in our unit finding hereinafter. The slight discrepancy in the Petitioner 's estimate of the number of employees in the unit in no way prejudiced the Employer and we find this objection to be without merit- GROCERS' BISCUIT COMPANY, INC. 605 that such employees might be appropriately included therein. The Petitioner's desire to exclude them in the first instance was based solely upon the ground that another union, not here involved, might later-claim jurisdiction of such employees. There is no evidence that this other union presently represents the truck drivers or that they so desire to be represented. As no other labor organization is presently seeking to represent them in a separate unit, and because they have interests similar to those of other employees in the unit,5 we shall include the truck drivers in the unite We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act: all production and maintenance employees at the Employer's Louisville, Kentucky, plant, including truck drivers, but excluding executives, professional employees, salesmen, office and clerical employees, guards, watchmen, and supervisors 7 as defined in the Act, DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer , an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction , under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election , including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, 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 , and also excluding employees on strike who are not entitled to reinstatement , to determine whether or not they desire to be represented, for purposes of collective bargaining, by Bakery & Confectionery Workers' International Union of America, Local 384, American Federation of Labor. 6 The truck drivers spend 50 percent of their time working in the shipping department, and are under the supervision of the foreman of that department . These employees are classified by the Employer as "order pickers and drivers." 6 See Matter of General Plywood Corporation, supra; Matter of Hanna ford Bros. Co., 78 N. L. R. B. 800. - 'The evidence is inconclusive as to whether Dick lVestenhoffer and Jessie Jones are supervisors. If either exercises supervisory powers within. the. meaning of the Act, he is to be deemed excluded from the unit ; otherwise he is to be included. -