Farley Confections, Inc.

In the Matter of FARLEY CONFECTIONS, INCORPORATED and THE BAKERY '&C CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, AFFILIATED WITII TIIE A. F. OF L., LOCAL 351 Case No. R-11,01.-D.eeicled,N,^^z;embe^° 2o, 1938 Confection Manufacturnnq Lzdustry-Investruiatioiz of Representatives: con- troversy concerning representation of employees : employer's refusal to grant recognition of union until question of representation is determined by Board; strike-Unit Appropriate for Collective Bargaining: persons employed in the production and maintenance departments, including elevator operators, exclud- ing clerical, office workers, shipping and receiving employees, supervisors, foremen. night watchmen, engineers, firemen, truck drivers and helpers ; con- troversy as to classification of certain employees-Representatives: proof of choice : comparison of employee list and union designation-Certification of Representatives: upon proof of majority representation. Mr. Jack C. Evans, for the Board. - Mr. Otto A. Jaburek, of Chicago, Ill., for the Company. ''Mr.°Edward 'O. Beahan, of Chicago,,Ill.,, for the <Union. Mr. Vincent A. Buvnns, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On September 22, 1938, The Bakery & Confectionery Workers International Union of America, affiliated with the American Fed- eration of Labor, Local 351, 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 Farley Confections, Incorporated, Chicago, Illinois, herein called the Company, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 14, 1938, the National Labor Relations, Board, herein called the Board, acting pursuant to Sec- tion 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 9N.L R B.No.112. 1219 134068-39-vol to-78 1220 NATIONAL LABOR RELATIONS BOARD conduct it and to provide for an appropriate hearing upon due notice. On October 15, 1938, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the Union. Pursuant to the notice, a hearing was held on October 25, 1938, at Chicago, Illinois, before E. G. Smith, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel, and the Union by its representative, and participated in the hearing. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all the 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 these rulings and finds that no prejudicial errors were coin- mitted. 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 Company, an Illinois corporation, having its plant and prin- cipal office at Chicago, Illinois, is engaged in the manufacture; dis- tribution, and sale of confections. The raw materials used are sugar, corn syrup, cocoa beans, cocoa butter, corn sugar, nuts, milk prod- ucts, colors and flavors. For the purposes of packing and shipping the Company uses cardboard cartons, wax paper, cellophane, string, glue and gummed paper. During the period from January 1 to September 3, 1938, the Company received approximately two and one-half million pounds or $140,000 worth of raw materials, about 90 per cent of which was purchased and transported to the Company from within the State of Illinois, principally from Chicago. The remaining 10 per cent of raw materials was purchased and trans- ported to it from New York, Pennsylvania and Wisconsin. During the same period the Company sold and shipped approximately two and one-half million pounds of its finished products valued at about $200,000. About 50 per cent of the finished products were trans- ported to points outside the State of Illinois and about 50 per cent to points within the State of Illinois. II. THE ORGANIZATION INYOLVED The Bakery & Confectionery Worker 's International Union of America, affiliated'with the A. F. of'L., Local 351 , is a labor organi- zation, admitting to' -its membership all production and" maintenance workers and elevator operators employed by the Company. 7 - DECISIONS AND ORDERS III. THE QUESTION CONCERNING REPRESENTATION 1221 On August 15,'1938, Edward O. Beahan, representing the Union, presented a contract to Preston Farley, the vice president of the Company, and claimed that the Union represented a majority of the employees in an appropriate bargaining unit. At this meeting Farley asked for time to consider the matter and Beahan left the proposed contract with ham. Approximately a week later, Beahan called again, at which time Farley suggested that the Board hold an election in order to determine the majority choice. Beahan re- jected this offer, saying that it was unnecessary-that the Board hold an election as he could prove the majority to Farley's satisfaction. Beahan suggested a check of Union cards against the Company's pay roll, which suggestion was rejected by' Farley. On or 'about August 22, 1938, the results of this last conference were discussed at a meeting of the Union and a strike vote was taken. On Septem- ber 12, 1938, a majority of the Company's employees went, on strike and at the time of the hearing were still on strike, although the plant continued limited operations with a reduced force. On September 12 George Goris, chairman of the Union bargaining committee, suggested an election upon consent, but Farley insisted that the employees go back to work as individuals and ask the Board to conduct an election. The committee replied that this could be done more quickly through an election with the consent of all parties but Farley refused, asking for additional time to consider the matter. On September 15, 1938, at a conference with Union representatives, Farley again suggested an election be conducted by the Board. On September 19, 1938, the Union submitted to Farley a paper signed by 42 employees designating a committee comprised of certain officers of the Union and strikers to represent them in bargaining with the Company. Farley was still unsatisfied and requested proof of ma- jority representation in the form of a Board election. 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. 1222 NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT At the hearing the Union claimed that all the production and maintenance employees and elevator operators, excluding clerical and office workers, shipping and receiving employees, supervisors, fore- men, night watchmen, engineers, firemen, truck drivers and helpers, constitute a unit appropriate for the purposes of collective bargain- ing. The Company did not object to the unit proposed by the Union. The elevator operators are actually engaged in the fabrication of the 'Company's products, and among other things, it is their duty to move the confections at different stages in the course of manufacture. The Company raised a question concerning the propriety of the inclusion of Victor Flocca and C. J. Wettstaedt, as requested by the Union. These men, classified by the Company as shipping and receiving employees, were employed generally in the shipping and receiving room, but were also engaged in work in other departments of the Company. By reason of their work in other departments they have a community of interest with the other employees in the unit, and we shall include them in the appropriate unit. We find that all persons employed by the Company in the produc- tion and maintenance departments, including the elevator operators -and the -above-mentioned Flocca and Wettstaedt, excluding clerical, office workers, shipping and receiving employees, supervisors, fore- men, night watchmen, engineers, firemen, truck drivers and helpers, constitute a unit appropriate for the purposes of collective bargain- ing and that said unit will insure to employees of the Company the full benefit of their right to self-organization and collective bargain- ing and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing a list of 54 employees of the Company as of Sep- tember 1 to 10, 1938, was introduced into evidence. This list was prepared by Farley and admitted by him to be a true and accurate list of all employees of the Company in the unit claimed appropriate by the Union. However, this list does not include the names of Flocca and Wettstaedt. Five employees whose names appear on the pay-roll list were employed in a supervisory capacity. Excluding these five supervisors and adding to the list the names of Flocca and Wettstaedt, it is apparent that there are 51 employees in the appro- priate unit. At the hearing the Union produced for inspection 42 signed mem- bership applications in addition to the paper dated September 16, 1938, herein above described, designating certain union officers and strikers to represent the 42 signers. The latter paper was intro- duced in evidence although the union applications were not. The DECISIONS AND O1DE US 1223 Company, however , checked the signatures on both the applications and paper against its canceled pay vouchers and disputed the au- thenticity of but four signatures . Even discounting the four signa- tures questioned by the Company , 38 out of 51 employees in the appropriate unit have signified their desire to bargain collectively through the Union. We find that the Union has been designated and,.selected by a ma- jority of the employees in the appropriate unit as their representa- tive for the purposes of collective bargaining . It is, therefore, the exclusive representative of all the employees in such unit 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 Farley Confections, Incorporated, Chi- cago, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production and maintenance employees, including Flocca and Wettstaedt, and elevator operators, excluding clerical, office workers, shipping and receiving employees, supervisors, foremen, night watchmen, engineers, firemen, truck drivers and helpers, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Rela- tions Act. 3. The Bakery & Confectionery Workers International Union of America, affiliated with the A. F. of L., Local 351, is the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. 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 Re- lations 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 The Bakery & Confectionery Workers International Union of America, affiliated with the A. F. of L., Lo- cal 351, has been designated and selected by a majority of the pro- duction and maintenance workers, including Flocca and Wettstaedt and elevator operators, of Farley Confections, Incorporated, Chi- cago, Illinois, excluding clerical, office workers, shipping and re- ceiving employees, supervisors, foremen, night watchmen, engineers, 1224 NATIONAL LABOR RELATIONS BOARD firemen, truck drivers and helpers, as their representative for the purposes of collective bargaining and that, pursuant to the provi- sions of Section 9 (a) of the Act, The Bakery & Confectionery Workers International Union of America, affiliated with the A. F. of L., Local 351, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours -of employment ; .arid other. conditions of employment.