National Buscuit Co.

In the Matter of NATIONAL BISCUIT COMPANY and BAKERY AND CON- FECTIONARY WORKERS' INTERNATIONAL UNION, LOCAL 492, A. F. OF L. Case No. 4-R-1749.-Decided Judy 1, 1946 Messrs. Souser, Schumacher and Taylor, by Mr. Robert H. Kleeb, of Philadelphia, Pa., for the Company. Messrs. Kalman Sklar and William A. Galvin, of New York City, and Mr. Jack Soloner, of Philadelphia, Pa., for- the Union. Mr. John A. Nevros, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Bakery and Confectionery Workers' International Union, Local 492, A. F. of L., herein called the Union 1 alleging that a question affecting commerce had arisen concerning the representation of employees of National Biscuit Company, Phila- delphia, Pennsylvania, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Helen F. Humphrey, Trial Examiner. The hearing was held at Philadelphia, Pennsylvania, on May 16, 1946. The Company .:nd the Union appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Exam- iner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the Company moved to dismiss the petition. The Trial Examiner reserved ruling on this motion for the Board. For reasons stated hereinafter, the motion is hereby denied. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY National Biscuit Company, a New Jersey corporation, is engaged in the manufacture of cakes and cookies. The Company operates sev- I The name of the Union appears as amended at the hearing. 69 N. L. R. B., No. 23. 229 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eral plants including the one at Philadelphia, Pennsylvania, which is. solely involved in this proceeding. During 1945, the Company used at its Philadelphia plant over $500,000 worth of raw materials, 90 per- cent of which came from sources outside the Commonwealth of Penn- sylvania. During the same period, the Company manufactured fin- ished products exceeding $500,000 in value, 35 percent of which repre- sented shipments to points outside the Commonwealth. The Company admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATION INVOLVED Bakery and Confectionery Workers' International Union, Local 492, affiliated with the American Federation of Labor, is a labor or- ganization admitting to membership employees of the Company.2 IH. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of certain of the Company's supervisory employees. 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. THE APPROPRIATE UNIT The Union seeks a unit of all foremen, foreladies, assistant foremen, and assistant foreladies in the following departments of the Company's Philadelphia Plant : warehouse, baking,4 packing, icing, shipping, Philadelphia Depot, maintenance, and power, light and heat.' These departments apparently include all the production and maintenance employees of the Company at its Philadelphia plant. 2 The Company , In one of the grounds of Its motion to dismiss the petition , attacks the competency of the Union to function as a labor organization within the meaning of Section 2 (5) of the Act with respect to its supervisory personnel It argues, in effect, that such disability stems from the fact that supervisors are not employees within the Act's meaning. We do not agree . We have heretofore considered the status of supervisory employees such as those here involved and have found them to be employees within the meaning of Section 2 (3) of the Act. See Matter of L. A. Young Spring & Wire Corporation , 65 N. L. it. B. 298; Matter of The B F. Goodrich Company, 65 N L R B 294 • and Matter of Soss Manu- facturing Company, et at , 56 N L. R B. 348 Accordingly, inasmuch as the record shows that the Union exists for the purposes described in Section 2 (5) of the Act, we find the Company's contention to be without merit. 8 The Company objects to the proceeding on the ground that nothing has been introduced into evidence showing the extent of the Union's representation among the employees in the alleged appropriate unit. For reasons stated in our recent decision in Matter of 0. D. Jennings it Company, 68 N. L. R B. 516 , we find no merit in the Company 's objection. 4 The baking department includes the following three units : bake shop-old building, sponge shop-new building , and bake shop-gas ovens building. 5 At the hearing the Union amended the unit as shown above. NATIONAL BISCUIT COMPANY 231 The Company takes the initial position that these individuals cannot constitute an appropriate unit because (1) they are not em- ployees within the meaning of Section 2 (3) of the Act, (2) the supervisors sought by the Union are not mere "traffic cops" but are an indispensable part of the Company's management, (3) the Union presently represents the rank and file production and maintenance workers under a "union shop" contract, and to allow the Union to represent the supervisors would cause a division of loyalties on the part of its supervisors, impair their efficiency, and frustrate rather than effectuate the policies of the Acts If overruled in this conten- tion the Company, without waiving its primary position, agrees with the grouping proposed by the Union. It does however oppose the Union's position with respect to the disposition to be made of em- ployees Harry Reed, Raymond Mergner, and Joseph Hammond. It is apparent from our Decisions in Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division ,7 and other recent cases,' that the issues raised by the Company in its primary position are lacking in merit. As noted above, the Company does not take issue with the Union as to the grouping of foremen, foreladies, assistant foremen and assist- ant foreladies in the same unit. These employees comprise the two lowest levels in the plant hierarchy having supervisory powers within the Board's definition of that term.9 Foremen and foreladies are directly under the superintendents, who head their respective depart- ments. The assistant foremen and assistant foreladies are directly responsible to the foremen or foreladies and are subordinate to them. The assistant foremen and assistant foreladies substitute for the fore- men and foreladies an average of approximately 3 hours daily, as well as on vacations, sick leave, and during other absences. A foreman or forelady has the authority to discharge an assistant foreman or assistant forelady without consulting the department superintendent. However, except for this authority, and the greater degree of respon- 9 The Company's primary position, as stated above, embodies in substance all except one of the grounds asserted in the Company's motion to dismiss the petition. The ground not stated here has already been discussed in footnote 2, supra. 7 66 N L R. B. 386. d Matter of The Baldwin Locomotive Works, 67 N. L. R. B. 1287 ; Matter of Williams Oil-O-Matie Division of Eureka Williams Corporation, 67 N L. R. B. 1091 ; Matter of Hudson Motor Car Company, 67 N. L. R. B. 368; Matter of Harrisburg Steel Corpora- tion, 67 N L. R B. 164 ; Matter of The Colson Corporation, 67 N. L. it. B. 72 ; Matter of The Curtis Bay Towing Company of Pennsylvania, et al., 66 N. L. R. B. 1152; Matter of The Midland Steel Products Company, Parish & Bingham Division, 65 N. L it. B. 997; Matter of L. A. Young Spring & Wire Corporation, 65 N. L. it. B. 298; and Matter of The B. F. Goodrich Company, 65 N. L. R. B. 294. 9 The Company also employs working foremen and working supervisors who are on an intermediate level between the assistant foremen and the ordinary rank and file workers. They have no supervisory powers or duties within the Board's customary definition, and it also appears that they are presently covered by the existing contract for production and maintenance rank and file employees between the Company and the Union, and are not sought to be included in the supervisory unit. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sibility 10 of foremen and foreladies, the powers and duties of fore- men, foreladies, assistant foremen and assistant foreladies, with respect to the hire, discharge, and discipline of their subordinates, are similar. In view of the foregoing, and on the entire record in the case, we conclude that these foremen, foreladies, assistant foremen, and assistant foreladies constitute a distinct homogeneous group which may function together for collective bargaining purposes.'1 As noted above, the Union and the Company are in disagreement with respect to Harry Reed, Raymond Mergner, and Joseph Ham- mond, the Union desiring to include the two first mentioned employees and to exclude the last mentioned employee. Harry Reed: During the war, and at the time the petition was filed, Reed held what was considered a supervisory position. However, after the petition but before the hearing his work changed to that of a clerical employee. He maintains time and attendance records of the ,Company's employees in the warehouse department, checks syrups as they are received in the building, and checks and records certain types of raw materials on the Company's books. He is paid on an hourly basis, exercises no supervisory authority over any employees, and in fact has never had a group of workers subordinate to him, even during the war. It is clear that he is not a supervisory employee within our customary definition of the term and accordingly, we shall exclude him from the unit as a clerical employee. Raymond Mergner: During the war, and at the time of the filing of the instant petition, Mergner was an assistant foreman on the night shift. However, at the time of the hearing he had reverted to his pre-war clerical duties, which are similar to those of Harry Reed. In view of the fact that Mergner presently has no subordinates and pos- sesses no supervisory duties, we shall exclude him from, the unit as a -clerical employee. Joseph Hammond: Although Hammond's designation is that of "maintenance foreman-maintenance department" he is ranked by the Company as an assistant foreman. He was upgraded to this position about 6 years ago with the consent of the Union. He has, on an average, between five and six machinists under his direction, and possesses authority to reject or transfer any employees assigned to him. He also has the authority to effectively recommend the discharge or discipline of subordinate employees. Although the Union has continued to bargain for him in the same unit with the rank and file production and maintenance workers, it concedes that he is a super- 18 In this connection, it appears that the assistant foremen and assistant foreladies participate in the first step of the grievance procedure , while the foremen and foreladles take part in the second step. n This follows generally the pattern for the unit of the rank and Me employees covered tzy the existing contract between the Union and the Company. NATIONAL BISCUIT COMPANY 233 visory employee within the Board's customary definition of that term. Accordingly, in view of the foregoing, and inasmuch as his status is clearly similar to that of the other assistant foreman included within the unit, we shall include him in the supervisory unit. We find that all foremen, foreladies, assistant foremen, and assistant foreladies in the following departments of the Company's Philadel- phia plant : warehouse, baking, packing, icing, shipping, the Phila- delphia Depot, maintenance, and power, light and heat, including the maintenance foreman in the maintenance department, but excluding clerical employees, main office employees, superintendents, and all other supervisory employees, 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 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, subject to the limitations and additions set forth in the Direction. 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 Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with National Biscuit Company, Philadelphia, Pennsylvania, 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 supervi- sion of the Regional Director for the Fourth 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 employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during 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 any who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to determine whether or not they desire to be represented by Bakery and Confectionery Workers' International Union, Local 492, A. F. of L., for the purposes of collective bargaining MR. GERARD D. REILLY, dissenting: For the reasons stated in my dissenting opinions in Matter of Pack- ard Motor Car Company,12 and Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, " I am constrained to disagree with the majority opinion. 61 N. L. R. B. 4. " 66 N. L. R. B. 886.