Walter O. Birk Candy Co.

In the Matter Of WALTER O. BIRK CANDY COMPANY and BAKERY & CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. R-1154.-Decided February 3, 1939 Confectionery Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : refusal by employer to recognize union until certified by the Board; strike-Unit Appropriate for Collective Bargaining : production and maintenance employees, including eleva- tor operators , excluding supervisors , office, and clerical employees , cost-de- partment employees , shipping and receiving department employees, truck drovers and helpers, engineers and helpers, night watchmen , and firemen ; con- troversy as to inclusion and exclusion of certain employees-Representatives: proof of choice : comparison of employee list with union designations ; com- parison of signatures on union designations with canceled pay vouchers- Certification of Representatives : upon proof of majority representation. Mr. Hyman A. Schulson, for the Board. Mr. Otto A. Jaburek, of Chicago, Ill., for the Company. Mr. Edward O. Beahan, of Chicago, Ill., for the Union. Mr. William Strong, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On October 13, 1938, Bakery & Confectionery Workers Inter- national 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 representa- tion of employees of Walter O. Birk Candy Company,' 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 December 5, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article 1 The original petition designates the Company as "Walter O. Burke , also known as Illinois Candy Company." ii N. L. B. B., No. 6. 23 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III, Section 3, of National Labor Relations Board Rules and Regu- lations-Series 1, as amended, ordered an investigation and author- ized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice.2 On December 8, 1938, the Regional Director issued a notice of hearing ,3 copies of which were duly served upon the Company and upon the Union. Pursuant to the notice, a hearing was held on Do cember 15, 1938, at Chicago, Illinois, before Horace A. Ruckel, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel, and the Union by a repre- sentative ; all participated in the hearing. 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 I. THE BUSINESS OF THE COMPANY The Walter O. Birk Candy Company is an Illinois corporation, en- gaged at its plant in Chicago, Illinois, in the manufacture, distribu- tion, and sale of confectionery. About 60 per cent by volume and by value of the raw materials used by the Company are delivered to its plant from points outside the State of Illinois. During the period from January 1 to November 30, 1938, the Company manufactured 7,682,258 pounds of finished products, of the approximate value of $750,000, and shipped to points outside of Illinois finished products valued at approximately $665,000. On October 12, 1938, the Company employed about 150 persons. H. THE ORGANIZATION INVOLVED Bakery & Confectionery Workers International Union of America, affiliated with the American Federation of Labor, is a labor organiza- tion admitting to membership all production and maintenance workers and elevator operators employed by the Company. 2 The order of December 5 followed the form of the original petition . On December 13 the Board issued a second order in which the Company was correctly named 3 The notice of hearing correctly designated the Company An amended petition filed on December 8, 1938 , designated the Company as "Walter O. Birk Candy Company , Illinois Candy Company ." At the hearing, Illinois Candy Company ', as dismissed as a party, by consent. WALTER 0. BIRD CANDY COMPANY ET AL. M. THE QUESTION CONCERNING REPRESENTATION 25 Between September 10 and September 28, 1938, the Union on several occasions attempted to bargain with the Company and to secure recognition as exclusive representative of all the employees in the unit claimed by the Union. Willard Cook, vice president and general manager of the Company , stated on several occasions that he did not believe the Union represented a majority of the Company's employees, and refused to bargain with the Union unless it was cer- 1 ified by the Board as the bargaining representative of the employees. Apparently as a result of the Company's refusal to bargain with the Union, a strike took place on September 29, 1938, lasting until October 4, 1938. 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 has led and tends to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The amended petition filed by the Union asserts that all production and maintenance employees, including elevator operators, but exclud- ing supervisors, office and clerical employees, cost-department em- ployees, shipping and receiving department employees, truck drivers and helpers, engineers and helpers, night watchmen, and firemen, constitute a unit appropriate for the purpose of collective bargaining. At the hearing the Company conceded the appropriateness of the unit requested by the Union, except that it insisted upon the inclu- sion therein of five employees in the shipping room, three employees in the receiving room, and Lottie Wanielista and Anna Calcagno, designated on the Company's pay roll as foreladies. No reason ap- pears for altering the unit requested by the Union. Wanielista and Calcagno perform supervisory duties and fall within the exclusion of supervisors. We find that the production and maintenance employees of the Company including elevator operators, but excluding supervisors, office and clerical employees, cost-department employees, shipping and 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receiving department employees, truck drivers and helpers, engineers and helpers, night watchmen, and firemen, 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. VI. THE DETERMINATION OF REPRESENTATIVES The pay roll of the Company for October 12, 1938, containing the names and work classification of all employees of the Company on that date, was introduced in evidence. From the pay roll it appears that there are 125 employees in the appropriate unit. The Union in- troduced in evidence 71 signed membership applications, designating it as sole collective bargaining agent of the signers. In calculating the Union's membership within the unit we shall exclude John B. Glowacki, who was no longer employed by the Company on October 12, 1938, and Paul Gallo, whom the Company and the Union had stipulated to exclude. The applications of Paul Kurzeja and Joe Conley were challenged because of their duties. We find that Kurzeja is a foreman and Conley is employed in the shipping room. They will also be excluded. It was testified that representatives of the Union, the Company, and the Board had checked the signatures on the applications against canceled pay vouchers produced by the Company. The Company challenged 21 of the applications on the ground that they had not been signed by its employees but offered no evidence to support its con- tention, other than two canceled pay vouchers of each person whose name appears on the Union's applications. The Union's representa- tive testified that he saw 16 of the disputed applications signed by the employees within the appropriate unit, whose names appear thereon, namely : James Carnaccio, Joe Castellano, Joe Castrogio- vanni, Stanley A. Cwiertnia, Henry Halama, Jeanette Kappel, Chester Kozlowski, Carl Ludwig, Charles Niedergall, Pasquale Rita, John Sasso, Anthony Spicuzza, Bruno Spiewak, Joe Ursini, Edward Roberti, and Gimi (Vincenzo) Fiore. The Board has compared the remaining five of the disputed applications with the canceled vouchers submitted by the Company and is convinced that the applications of Joe Castaglia, Tony DeRose, Dolly Walat, and Joseph (Frank) Par- rinello were signed by the same persons who endorsed the canceled vouchers. The remaining 46 applications were not contested. It thus appears that 66 of the 125 employees in the appropriate unit have signified their desires to bargain collectively through the Union. We find that the Union has been designated and selected by a majority of the employees in the appropriate unit as their represent- WALTER O. BIRD CANDY COMPANY ET AL. 27 ative for the purposes of collective bargaining. It is, therefore, the exclusive representative of all the employees in said unit for the pur- poses 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 Walter O. Birk Candy Company, Chicago, 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 and elevator opera- tors of the Walter O. Birk Candy Company, Chicago, Illinois, ex- eluding supervisors, office and clerical employees, cost-department employees, shipping and receiving department employees, truck drivers and helpers, engineers and helpers, night watchmen and fire- men, constitute a unit appropriate for the purposes 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 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 Bakery & Confectionery Workers In- ternational Union of America, affiliated with the American Federa- tion of Labor, has been designated and selected by a majority of the production and maintenance employees and elevator operators of the Walter O. Birk Candy Company, Chicago, Illinois, excluding supervisors, office and clerical employees, shipping and receiving de- partment emplyees, cost-department employees, truck drivers and helpers, engineers and helpers, night watchmen, and firemen, as their representative 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 American Federation of Labor, is the exclusive representa- tive of all such employees for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, and other con- ditions of employment,