Independent Candy Co.

In the Matter Of INDEPENDENT CANDY Co. and BAKERY & CONFEC- TIONERY WORKERS INTERNATIONAL UNION OF AMERICA AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR. Case No. R-1035.-Decided November 15, 1938 Candy Manufacturing Industry-Investigation of Representatives : contro- versy concerning representation of employees : employer's refusal to recognize union as exclusive representative-Unit Appropriate for Collective Bargaining: production workers, exclusive of supervisory and clerical employees-Represent- atives: proof of choice : comparison of pay roll with membership application cards of union-Certification of Representatives : upon proof of majority representation. Mr. Stephen H. Reynolds, for the Board. Mr. Otto A. Jaburek, of Chicago, Ill., for the Company. Mr. Edward 0. Beahan, of Chicago, Ill., for the Union. -Mr. Henry J. Fox, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On August 8, 1938, Bakery & Confectionery Workers International Union of America affiliated with the American Federation of Labor, herein called the Union, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Independent Candy Co., Chicago, Illinois, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat.'449, herein called the Act. On September 21, 1938, 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 Regulations-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 September 22, 1938, the Regional Director issued a notice-of 'hearing, copies of _which, were duly served upon' the 'Company and 9,N. L. •R..B., No. 81.: 881 . 882 NATIONAL LABOR RELATIO NS BOARD ,the Union. Upon motion of the Company the Regional Director is- sued an order postponing the hearing. Pursuant to the order of the Regional Director, copies of which were duly served upon the Com- pany and the Union, a hearing was held on September 29, 1938, at Chicago, Illinois, before Henry W. Schmidt, the Trial Examiner duly designated by the Board. The Board, the Company, and ,the Union were represented by- counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine the witnesses, and td 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 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 : FIN DINGS OF FACT I. THE BUSINESS OF THE COMPANY Independent Candy Co., is individually owned and operated by Solomon Hoit and is engaged in the manufacture, sale, and distribu- tion of hard candies. Its office and place of business are in Chicago, -Illinois. During the period from August 1, 1937, through July 1, 1938, it purchased approximately $120,000 - worth of- sugar, syrup, flavors, and color; $1,500 worth of cellophane; and $10,000 worth of -miscellaneous items. The Company received all of its cellophane directly from sources outside Illinois. Although it purchased the remainder of its raw materials-from dealers in Chicago, all the sugar purchased by it was refined in States other than Illinois. During the same period the Company produced 1,600,000 pounds of candy, of which approximately 90 per cent, valued at about $115,200, were shipped by truck and railroad to destinations in 24 States, outside Illinois. The Company normally employs approximately 36 persons. IT. THE ORGANTZA'1'ION, INVOLVED Bakery & Confectionery Workers International Union of America is a- labor organization affiliated with the American Federation of Labor; admitting to its membership all production employees of the Compai y,; excluding clerical and supervisory employees. III. THE QUESTION CONCERNING REPRESENTATION During April' 1938, the Union• began organizing the employees of the Company. On two occasions during the latter pait of July 1938, representatives of the Union conferred with the Company for the purpose of negotiating a contract, but were unsuccessful. The DECISIONS AND ORDERS 883 Company doubted the Union's claim that it represented a majority of the employees. The Company refused to resolve its doubt by an election held by the consent of the parties. 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union claims that all the production workers, excluding super- visory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining.. The Company does not oppose this claim, but contends that two employees, Eleanore LaValle and Harry Hoit, should be included in the unit claimed to be appro- priate by the Union. The Union contends that they should be ex- cluded. The duties of Eleanore LaValle, who is designated as a supervisor on the Company's pay roll of August 8, 1938, consist principally in transmitting the owner's directions to the wrappers. In addition, she distributes materials to the wrappers and keeps a record of the work they complete. When the occasion demands it, she reports inefficient workmanship to the owner. Clearly, Eleanore LaValle acts in a supervisory capacity. Harry Hoit is designated as shipping clerk on the Company's pay roll. In addition to han- dling the shipping of finished products and the receipt of raw materials, he supplies sugar to the candy makers as it is needed. On rare occasions he substitutes for a production worker. While Hoit's work is largely manual, he is seldom engaged in the actual production of the candy. We think that he may properly be excluded from a unit composed of only production workers. We will exclude Eleanore LaValle and Harry Hoit from the unit. We find that all the production employees of the Company, ex- cluding supervisory and clerical employees, constitute a unit appro- priate 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. 134068-39-col ix--57 884 NATIONAL LABOR RELATIONS BOARD VI. THE DETERMINATION OF REPRESENTATIVES There were 34 employees in the appropriate unit on August 8,1938, the date of the filing of the petition. Since that date, three wrappers left the employ of the Company and one candy maker and two spin- ners were hired so that there were still 34 employees in the appro- priate unit on September 29, 1938, the date of the hearing. By August 8, 1938, 22 employees in the appropriate unit had signed union membership application cards which designated the Union as their exclusive representative for purposes of collective bargaining. On August 26, 1938, an additional employee in the appropriate unit signed such a membership application. The Company admitted that the signatures on all the applications, except three, were genuine. A comparison of the three disputed signatures with-the signatures of the three employees endorsed on the back of their pay checks shows that at least two of them are clearly genuine. We find that the Union was the designated bargaining representa- tive of 21 of the 34 employees in the appropriate unit on August 8, 1938, and of 20 of the 34 employees in the appropriate unit on September 29, 1938.1 We find that the Union has been designated and selected by a majority of the employees in the appropriate unit as their representa- tive for the purposes of collective bargaining and we will so certify. 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 Independent Candy Co., Chicago, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the production employees of the Company, excluding super- visory and clerical employees, constitute a unit appropriate for the purpose of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. Bakery & Confectionery Workers International Union of Amer- ica affiliated with the American Federation of Labor is the exclusive representative of all employees in such unit for the purposes of col- lective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. 'The quitting of three wrappers and the hiring of a candy maker and two spinners between the date of the filing of the petition and the date of the hearing resulted in the loss of one designation by the Union. DECISIONS AND ORDERS 885 CERTIFICATION OF REPRESENTATIVES 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, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Bakery & Confectionery Workers In- ternational Union of America affiliated with the American Federation of Labor has been designated and selected by a majority of all the production employees of the Independent Candy Co., Chicago, Illi- nois, excluding supervisory and clerical employees , as their repre- sentative for the purposes of collective bargaining , and that pursuant to the provisions of Section 9 (a) of the Act, Bakery & . Confectionery Workers International Union of America affiliated with the Ameri- can Federation of Labor is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.