Sweet Candy Co.

In the Matter Of SWEET CANDY COMPANY , A CORPORATION and CANDY WORKERS' LOCAL No. 373 Case No. R-526.-Decided February 21, 1938 Candy Manufacturing Industry-Investigation of Representatives : controversy concerning representation of employees : refusal of employer to recognize and bargain with petitioning union until question of representation is determined by the Board-Unit Appropriate for Collective Bargaining : all plant employees, including watchmen , but excluding foremen, office and clerical help, and em- ployees of the shipping and delivery department ; no controversy as to-Election Ordered Mr. Charles A. Graham, for the Board. Mr. Oscar W. Carlson, of Salt Lake City, Utah, for the Company. Mr. A. George Koplow, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 9, 1937, Candy Workers' Local No. 373, Bakery and Confectionery Workers' International Union of America,' herein called the Union, filed with the Regional Director for the Twenty- second Region (Denver, Colorado) a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Sweet Candy Company, a corporation, Salt Lake City, Utah, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act. On December 9, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regula- tions-Series 1, 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, 1937, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and upon the Union. Pursuant to the notice, a hearing was held on 1 The pleadings incorrectly designated the Union as Candy Workers' Local No a73. 541 542 NATIONAL LABOR RELATIONS BOARD December 17, 1937, at Salt Lake City, Utah, before Albert L. Lohm, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel and participated in the hearing. Representatives of the Union participated in the hearing as witnesses. Full opportunity to be heard, to examine and to 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 evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Sweet Candy Company is a corporation engaged in the manu- facture and sale of candy. Its plant is located at Salt Lake City, Utah. The total gross business of the Company is over $300,000 annually. The principal materials used by the Company are sugar, butter, eggs, condensed milk, cream, corn-syrup, cocoa beans, nut meats, flavorings, candied and preserved fruits, cardboard, ribbon, and paper. Approximately 70 per cent (in terms of monetary value) of the materials used come from outside the State of Utah, and approxi- mately 75 per cent (in terms of monetary value) of the products are shipped outside the State of Utah. II. THE ORGANIZATION INVOLVED Candy Workers' Local No. 373, Bakery and Confectionery Work- ers' International Union of America is a labor organization affiliated with the American Federation of Labor. According to the testimony of its representative, the Union admits to membership all plant employees engaged in the manufacture of confections. This includes persons who deal with the product through the point where it is placed in the consumer carton. It does not include warehousemen, truck drivers, or persons packing the cartons for shipment. The Union has no jurisdiction over sales- men, supervisors, or office and clerical employees. Watchmen are admitted to membership in the Union. The Union's representative testified that since there is no American Federation of Labor organization for watchmen, the American Federation of Labor has ruled that such employees are eligible to join the organi- zation representing a majority of the employees in a plant. DECISIONS AND ORDERS III. THE QUESTION CONCERNING REPRESENTATION 543 The Union's organizational work among the Company's em- ployees started in April or May 1937. It was granted a charter in June 1937, by Bakery and Confectionery Workers' International Union of America. At the hearing, by stipulation between counsel for the Board and counsel for the Company, the following facts were agreed upon : On October 29, 1937, a representative of the Union approached the Company's counsel on the question of collective bargaining, after having been referred to counsel by the Company. It was then ar- ranged to have the Utah Industrial Commission check the Union membership against the Company's pay rolls to determine whether the Union represented a majority of the employees of the Com- pany. Shortly thereafter, the Union received information that the attorney for the Company had notified the Utah Industrial Com- mission that there was some doubt as to the jurisdiction of the Com- mission because of the interstate nature of the Company's business. As a result, on November 9, 1937, before the results of the Commis- sion's check were known, the Union filed a petition for certification by the Board. After filing the petition, the Union attempted to gain the consent of the Company, through its counsel, to the holding of a consent election by the Board, but this consent was not obtained. On November 12, 1937, the Commission reported a majority of employees in the Company as having, by joining the Union, designated the Union as their representative for collective bargaining. Approxi- mately three weeks later there was another conference between the Company's counsel and the Union's representative, at which time counsel for the Company stated his belief that the best procedure would be a hearing under the petition of November 9, 1937. At the hearing the Company offered to stipulate that a secret ballot be taken by the Board, and that the unit claimed by the Union be considered an appropriate unit for the purposes of such ballot. The proffered stipulation was not accepted. We find that a question has arisen concerning 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. 544 NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT The Union in its petition claimed that all plant employees with the exception of foremen, office and clerical help, constitute a unit appro- priate for the purposes of collective bargaining. The Company makes no objection to the unit claimed by the Union to be appropriate. This unit excludes all employees in the shipping and delivery depart- ment, the Union not classifying them as plant employees, since they deal with the finished product after it has been placed in its consumer carton. The exclusion of the shipping and delivery department em- ployees is not unreasonable, is desired by the petitioner, and is not objected to by the respondent. The Union desires to include watchmen in the unit claimed to be appropriate. The Company makes no objection. In the past, we have usually excluded watchmen from a bargaining unit composed pri- marily of production employees, on the basis of the differences in func- tion and interest of the two groups. We shall, however, permit the watchmen to be included in this unit because of the fact that neither party makes any objection to their inclusion, and because to hold otherwise virtually would deprive the watchmen of opportunity for collective action and representation, since there is no other labor organ- ization at the plant to which they are eligible for membership. We find that all plant employees of the Company including watch- men, but excluding foremen, office and clerical help, and employees in the shipping and delivery department, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self- organization and to collective bargaining, and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The pay-roll list 2 shows 246 persons in the employ of the Company on November 5, 1937, a few days before the Union filed its petition with the Board. Testimony at the hearing shows 64 employees to be outside the unit found to be appropriate, leaving 182 persons in the appropriate unit. The Union claimed to represent these employees by virtue of the fact that a majority of them had, by joining the Union, designated it as their agent for the purposes of collective bargaining. At the hearing the Board introduced a list,3 certified by a notary public as having been copied from the official ledger of the Union and pur- porting to be a list of the Company's employees who were members 2 Board's Exhibit No. 2 The pay-roll list of November 5, 1937, furnished by the Com- panv was introduced in evidence and was relied on by the parties for purposes of comparison. 8 Board's Exhibit No. 3. DECISIONS AND ORDERS 545 of the Union. The Union books from which the membership list was compiled were available for inspection at the hearing, but the signed membership cards were not produced. The Company ob- jected to the Union membership list as a method of proof of desig- nation, requesting that the signed application cards for admission to the Union be introduced to prove that a majority of the em- ployees in the appropriate unit were members of the Union and had designated the Union as their representative for -collective bargain- ing. Since an objection has been interposed, and because in the absence of signatures there may be some doubt as to the authenticity of names submitted on the Union membership list, we shall not certify on the basis of the proof offered. We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by the holding of an election by secret ballot. Eligibility to vote in this election will be extended to those who were in the employ of the Company, within the appropriate unit, on the pay roll of November 5, 1937, exclusive of those who since have quit or have been discharged for cause. Upon the basis of the above findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Sweet Candy Company, Salt Lake City, Utah, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All plant employees of Sweet Candy Company, Salt Lake City, Utah, including watchmen but excluding foremen, office and clerical help, and employees in the shipping and delivery department, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations 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 Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with the Sweet Candy Company, Salt Lake City, Utah, an election by secret ballot shall be conducted within a period of twenty (20) days from the date of this Direction of Election, under the direction and supervision D 546 NATIONAL LABOR RELATIONS BOARD of the Regional Director for the Twenty-second Region, acting in this matter as the agent of the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all plant employees of Sweet Candy Company, Salt Lake City, Utah, on the pay roll of said Company of November 5, 1937, including watchmen but excluding foremen, office and clerical help, employees of the shipping and delivery department, and those who since have quit or have been discharged for cause, to determine whether or not they desire to be represented by Candy Workers' Local No. 373, Bakery and Confectionery Workers' International Union of America, for the purposes of collective bargaining. [SAME TITLE AMENDMENT TO DIRECTION OF ELECTION March 11, 1938 On February 21, 1937, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding, the election to be held within twenty (20) days from the date of the Direction, under the direction and super- vision of the Regional Director for the Twenty-second Region (Den- ver, Colorado). The Board, having been advised that a longer period is necessary, hereby amends the Direction of Election issued on February 21, 1937, by striking therefrom the words "within twenty (20) days from the date of this Direction" and substituting therefor the words "within thirty (30) days from the date of this Direction."