Arrow Candy Co., Inc.

ARROW CANDY CO., INC. 573 The employees in the proposed unit are highly skilled workmen performing duties traditionally associated with the plumbing and steamfitting craft. They do not interchange with other employees and are qualified to carry out the usual functions and skills of their trade. In some instances welders are assigned to work with plumbers, steamfitters, pipefitters, and refrigeration men. These welders either spend their entire time working alongside employees of those classifi- cations or do welding only as an adjunct to their regular duties as plumbers, steamfitters, or other classifications in the unit.5 Upon the entire record, the Board finds that a unit of all journeymen plumbers, steamfitters, pipefitters, refrigeration men, and their ap- prentices of the Employers including welders regularly assigned to work with plumbers, steamfitters, pipefitters, and refrigeration men, but excluding all professional employees, guards, watchmen, all super- visors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. 5. The individual Employers testified at the hearing that their em- ployment was relatively stable although subject to some fluctuation dependent upon weather and business conditions. All parties are agreed, and the Board finds, that the employment of employees in the unit is sufficiently stable to permit an election to be held therein. [Text of Direction of Election omitted from publication in this volume.] MEMBER PETERSON took no part in the consideration of the above Decision and Direction of Election. 5 In the case of one Employer , Hicks and Ingle, plumbers or apprentices may, on occasion , be assigned to sorting out and receiving materials sent to the project and act as a "field warehouseman " for the project. The record indicates , however, that such duties only take up a minor portion of their time and are incidental to their work as plumbers. ARROW CANDY CO., INC. and LOCAL 452, CANDY & CONFECTIONERY WORKERS UNION, AFL, PETITIONER . Case No. 2-RC-4614. August 12, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Milton A. Shaham, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 100 NLRB No. 95. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. While the Employer concedes that it is engaged in commerce, the Intervenor, Amalgamated Union Local 102, United Automobile Workers, AFL, contends that the Board does not have jurisdiction on the ground that the Employer has not yet begun operations. The Employer is engaged in the business of manufacturing lolly- pops, salt water taffy, and hard candies in Brooklyn, New York.' Hilo Packing Co., Inc., herein called Hilo, is engaged in the business of packing candy and other items. The record shows that Hilo and the Employer are commonly owned, controlled, supervised, and are located on the same premises. The Employer sells all its finished products to Hilo; Hilo in turn sells almost 100 percent of its products to Monte Carlo Sales Corporation, herein called Monte Carlo; the latter company sells and distributes products to various companies throughout the United States. Hilo ships directly to the customers of Monte Carlo. Since August 1, 1951, Hilo has purchased candy and toys valued in excess of $100,000, of which 2 percent was shipped from points outside the State of New York. Since the same date, Hilo has sold products valued in excess of $100,000, of which it has shipped 90 percent to points outside the State. Accordingly, as we find that Hilo and the Employer are essentially parts of the same integrated business enterprise the conduct of which, it is clear, substantially affects commerce within the meaning of the Act, we shall assert juris- diction over the Employer 2 2. The labor organizations involved claim to represent employees .of the Employer. 3. The Employer and the Intervenor allege as a bar to this proceed- ing a contract between them executed on March 14, 1952. The Peti- tioner contends that its claim of representation was timely made before the execution of the contract which, therefore, cannot operate as a bar. On March 8, 1952, the Petitioner telephoned the Employer demand- ing recognition for the production employees and requesting an ap- pointment at the plant. On March 10, 1952, pursuant to their ap- pointment, the Petitioner met with the Employer at the plant and re- peated its demand for recognition. The Employer then indicated that it was quite willing to give the Petitioner a contract but that it wanted first to consult the Intervenor which represented the employees of Hilo. I On March 1 , 1952, the Employer purchased the instant plant , which was operated under the same company name by its predecessor . Although at the time of hearing the employees in question were actively employed by the Employer , the plant was not yet in operation , and the Employer expected to commence production in the immediate future. 2 See White Oak Park, 98 NLRB 376; Stanislaus Implement and Hardware Company, Ltd., 91 NLRB 618. ARROW CANDY CO., INC. 575 The Employer also requested that the Petitioner bring to the plant a copy of its proposed contract. The Petitioner returned the next day (March 11, 1952) with a copy of a contract which it submitted to the Employer. At this meeting, also attended by a representative of the Intervenor, the Employer declined to grant recognition to the Peti- tioner. On.March 14, 1952, the Employer signed a contract with the Intervenor. On March 20, 1952, the Petitioner filed the petition herein. The foregoing facts raise an issue of the applicability of the Board's; General Electric X-Ray rule 3 As enunciated in that case, "where a petition is filed more than 10 days after the assertion of a bare claim of representation, and no extenuating circumstances appear, an agree- ment, otherwise valid, which is executed in the interval should be held to constitute a bar." The Board has declared that-the purpose of this rule is to prevent labor organizations from frustrating collective bar- gaining indefinitely by advancing merely colorable representation claims with the intention of gaining time to augment their strength.' The Board has not applied the 10-day General Electric X-Ray rule where the representation claim was considered more than a "bare'' claim, and the particular facts in the case refuted the implication that the purpose of the claiming union was to delay valid collective bar- gaining to strengthen its position.-5 The record is clear in this case that with respect to the Petitioner's repeated demands for recognition on March 8 and 10, 1952, the Em- ployer did not question the claim of majority status and did lead the Petitioner reasonably to believe that it might achieve recognition with- out a Board determinations In view of these extenuating circum- stances, we conclude that the General Electric X-Ray doctrine is not applicable," and that the March 14, 1952, contract is no bar. Accordingly, we find that a question affecting commerce exists con- cerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Acta 4. In accordance with the stipulation of the parties, we find that a unit of all production workers at the Employer's Brooklyn, New York, plant, excluding office and clerical workers, professional workers, 3 General Electric X-Ray Corporation, 67 NLRB 997. 4 See Acme Brewing Co.. 72 NLRB 1005. See, e g. Chicago Bridge & Iron Company, 88 NLRB 402 ; McLeod Veneer Co., 73 NLRB 859; Acme Brewing Co., supra. 6 Cf Reade Scientific Corporation, 73 NLRB 310 ; Consolidated Vultee Aircraft Corpora- tion, 74 NLRB 967. ' See Chicago Bridge & Iron Company, supra. 'The Intervenor 's further motion to dismiss the petition on the ground that the Petitioner 's showing of interest , antedating the acquisition of the plant by the Employer, was defective is denied . This is an administrative matter for Board determination ; and we are administratively satisfied that the Petitioner has made a sufficient showing of interest 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD watchmen and guards, and supervisors as defined in the Act, is appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] THE C. L. BAILEY GROCERY COMPANY and Bus, SALES, TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL UNION No. 637 , AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD or TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. or L. Case No. 9-CA-391. August 13, 195 Decision and Order On September 13, 1951, Trial Examiner Henry J. Kent issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report, and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby af- firmed. The Board has considered the Intermediate Report, the ex- ceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following exceptions, additions, and modifications :1 1. We find, in agreement with the Trial Examiner, that the Union represented a majority of Respondent's truck drivers, warehousemen, and helpers at least until March 8; that on March 5, union representa- tives, Jones and Kolometz approached Respondent's president, Knox, with a request to bargain; that Knox told Jones and Kolometz that he wished to have some time to consider the situation and discuss it with Respondent's board of directors before meeting again with the Union; and that the Union and the Respondent met on March 8 and May 24, 1951, without coming to any agreement. 3 We note and correct the following minor inaccuracies in the Trial Examiner 's findings, which do not affect the validity of his ultimate conclusions nor our concurrence therein: (1) Dale Berga, Jr., called Kolometz by telephone on the night of March 6, 1951, and not on March 7, at stated on page 593 of the Intermediate Report; ( 2) Wagner joined the pickets about 8 o'clock and not, as found by the Trial Examiner on page 594 of the Inter- mediate Report , about 9 o'clock ; ( 8) Sutton was called for active duty about 2 weeks after the strike, and not about March 15 . 1951 , as it appears in footnote 19, page 595 of the Intermediate Report; (4) Wagner signed on March 9 an application card for the local dated March 7, and not, as found by the Trial Examiner on page 594, footnote 17, a card on February 9 dated February 1. 100 NLRB No. 94.