Hershey Chocolate Corp.

In the Matter of HERSHEY CHOCOLATE CORPORATION and BAKERY & CONFECTIONERY WORKERS INTERNATIONAL UNION, LOCAL 464 (A. F. L.) Case No. R-1098.-Decided February 24, 1939 Chocolate Products Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : rival organizations-Unit Appropriate for Collective Bargaining : stipulated-Election Ordered-Certifca- lion of Representatives. Mr. Samuel G. Zack and Mr. Geoffrey J. Cunniff, for the Board. Mr. William S. Earnest, of Harrisburg, Pa., and Mr. Wellington S. Crouse, of Hershey, Pa., for the Company. Mr. Patrick J. Taft, of Washington, D. C., for Local 464. Mr. Sidney G. Handler, of Harrisburg, Pa., for Local No. 2. Mr. Albert J. Hoban, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 17, 1938, Bakery & Confectionery Workers International Union, Local 464, herein called Local 464, filed with the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Hershey Chocolate Cor- poration of Hershey, Pennsylvania, 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 August 5, 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 9, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon Local 464, and upon United Chocolate Workers of America, Local 11 N. L. R. B., No. 54. 731 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 2, affiliated with the Committee for Industrial Organization, herein called Local 2, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to an amended notice, copies of which were duly served upon all parties, a hearing was held on October 20 and 21, 1938, at Hershey, Pennsyl- vania, before I. L. Broadwin, the Trial Examiner duly designated by the Board. The Board, the Company, Local 464, and Local 2 were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and 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 evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On January 19, 1938, pursuant to notice, a hearing was held in Washington, D. C. before the Board, for the purpose of oral argu- ment. The Company and Local 464 were represented by counsel and Local 2 by its agents, and all participated in the argument. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Hershey Chocolate Corporation, a Delaware corporation, is en- gaged in the manufacture, sale, and distribution of milk-chocolate bars, cocoa, baking chocolate, coatings, cocoa butter, milk-chocolate peanut bars, milk-chocolate almond bars , cocoa syrup, and milk- chocolate kisses at its place of business in Hershey, Pennsylvania. Approximately 70 per cent of the milk, sugar, butter chocolate, cocoa, almonds, peanuts, cocoa beans, and other raw materials used by the Company in the manufacture of the products set forth above, are shipped to its plant from States other than the Commonwealth of Pennsylvania and from foreign countries . Approximately 92 per cent of the products manufactured by the Company are shipped to points outside the Commonwealth of Pennsylvania, and to foreign countries. The Company employs approximately 3,141 employees, of whom approximately 2,424 are engaged in production and mainte- nance. H. TIIE ORGANIZATIONS INVOLVED Bakery & Confectionery Workers International Union, Local 464, is a labor organization affiliated with the American Federation of Labor, admitting to its membership the production and maintenance H KP5 [-WY CHOCOLATE CORPORATION ET AL. 733 employees of the Company, excluding supervisory and clerical employees. United Chocolate Workers of America, Local No. 2, is a labor organization affiliated with the Committee for Industrial Organiza- tion, admitting to its membership the same classes of employees as Local 464. III. THE QUESTION CONCERNING REPRESENTATION In November 1937 United Chocolate Workers of America, affiliated with the Committee for Industrial Organization, issued a. charter to Local 2 granting it jurisdiction over the employees of the Company. Officers and agents of Local 2 have been active in organizing em- ployees of the Company since that date. On April 26, 1938, a charter was issued to Local 464 by the Bakery & Confectionery Workers International Union, affiliated with the American Federation of Labor. On May 6, 1938, the attorney for Local 464 wrote to the president of the Company and, claiming to represent a majority of the employees, requested a meeting for the purposes of collective bargaining. On May 10, 1938, the Company replied that it would await the direction of the Board before enter- ing into negotiations with any alleged representative of its employees. We find that a question concerning the representation of employees of the Company has arisen. 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. V. THE APPROPRIATE UNIT At the hearing all the parties stipulated that the production and maintenance employees of the Company, exclusive of teamsters, office workers, executives, attorneys, traveling and outside salesmen, super- intendents, assistant superintendents, foremen, and assistant foremen. constitute a unit for the purpose of collective bargaining. We find no reason for departing from the desires of the parties. We find that all production and maintenance employees of the Company, excluding teamsters, office workers, executives, attorneys, traveling and outside salesmen, superintendents, assistant superin- 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tendents, foremen, and assistant foremen, constitute a unit appropri- ate 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, collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The Company's pay roll of October 16, 1938, which is the pay roll last preceding the date of the hearing, was introduced into evidence. This pay roll lists the names of 2,315 employees in the appropriate unit. Local 464 introduced in evidence 112 petitions which were signed between April 26 and May 17, 1938, by 1,365 employees in the appropriate unit. Local 2, however, claiming to represent more than 600 employees, urged that the petitions do not reliably reflect the choice of Local 464 by the signers thereof. Two employees, whose names appear on the petitions, testified that they had signed without reading or understanding the significance of the petitions. They stated they did not desire to be represented by Local 464. At the conclusion of their testimony it was stipulated that 20 other em- ployees whose signatures appeared on the petitions would testify that they did not desire to be represented by Local 464. In April 1937, a labor organization known as Independent Choco- late Workers of Hershey, herein called the Independent, was formed among the Company's employees. Following proceedings duly in- stituted by the Board on charges filed by Local 2 alleging that the Company had dominated and interfered with the formation of the Independent, the Board issued an order, upon consent of the parties, which required inter alia, that the Company disestablish the Inde- pendent as a collective bargaining representative and post copies of the order for a period of 30 days. This order was issued by the Board on May 5, 1938.1 Meanwhile, on April 26, 1938, at a meeting convened for the purpose, the members of the Independent disestab- lished the organization. When the regular business of the meeting was concluded, Charles McCloskey, organizer, and Patrick J. Taft, attorney, were permitted to address the group on behalf of Bakery & Confectionery Workers International Union. After they had ex- plained the purpose of their organization 20 signatures were obtained upon an application for a charter, the charter was issued, and tem- porary officers of Local 464 elected. The petitions referred to above, which designated Local 464 as exclusive representative for the pur- poses of collective bargaining and, which had been prepared prior to ' Matter of Hershey Chocolate Corporation and United Chocolate Workers Local No. 2, affiliated with the Committee for Industrial Organization , 7 N. L. R. B. 14. HERSHEY CHOCOLATE CORPORATION ET AL. 735 the meeting, were signed by 248 employees present. Similar peti- tions were signed at subsequent meetings of Local 464 and in the homes of employees. It will be noted that the final meeting of the Independent, at which Local 464 was organized, was held prior to the issuance of the Board's order of May 5 and before all the Company's employees had been apprised of its contents through the posting required by the order. Under the circumstances many employees who signed the petitions may have been in doubt as to whether they were in fact free to select representatives of their own choice. In view of the general confusion which existed for many months with reference to the unfair labor practices and the question con- cerning representation, we think the question of representation can best be determined through an election by secret ballot. All the parties agreed that in the event the Board directed an election, the pay roll of October 16, 1938, should be used to determine the eligibility of employees to participate therein. We shall follow the desires of the parties. Those eligible to vote shall be all produc- tion and maintenance employees whose names appear on the pay roll dated October 16, 1938, excluding teamsters, office workers, executives, attorneys, traveling and outside salesmen, superintendents , assistant superintendents, foremen, and assistant foremen. On the basis of the above findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Hershey Chocolate Corporation, Hershey, Pennsylvania, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees of the Company, exclusive of teamsters, office workers, executives, attorneys, travel- ing and outside salesmen, superintendents, assistant superintendents, foremen, and assistant foremen, constitute 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 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Hershey Chocolate Corporation, Hershey, Penn- sylvania, an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction, under the direction and supervision of the Regional Director for the Fourth Region, act- ing in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all production and maintenance employees of the Company whose names appear on the pay roll of October 16, 1938, exclusive of teamsters, office workers, executives, attorneys, traveling and outside salesmen, superintendents, foremen, assistant foremen, and those em- ployees who have since quit or been discharged for cause, to deter- mine whether they desire to be represented by Bakery & Confec- tionery Workers International Union, Local 464, affiliated with the American Federation of Labor, or by United Chocolate Workers of America, Local No. 2, affiliated with the Committee for Industrial Organization, for the purposes of collective bargaining, or by neither. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Direction of Election. SAME TITLE] CERTIFICATION OF REPRESENTATIVES March 31, 1939 On February 24, 1939, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled case. The Direction of Election provided that an election by secret ballot be conducted among the production and maintenance employees of Hershey Chocolate Corporation whose names appeared on the pay roll of October 16, 1938, exclusive of teamsters, office workers, executives, attorneys, traveling and outside salesmen, superintendents, foremen, assistant foremen, and those employees who had since quit or been discharged for cause, to deter- mine whether they desired to be represented by Bakery & Confec- tionery Workers International Union, Local 464, affiliated with the American Federation of Labor or by United Chocolate Workers of America, Local No. 2, affiliated with the Committee for Industrial Organization, for the purposes of collective bargaining, or by neither. Pursuant to the Direction of Election, an election by secret ballot was conducted on March 10, 1939, under the direction and supervision of the Regional Director for the Fourth Region (Philadelphia, HERSHEY CHOCOLATE, CORPORATION ET AL. 737 Pennsylvania). Full opportunity was accorded to all parties to this investigation to participate in the conduct of the election by secret ballot and to make challenges. On March 14, 1939, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, issued and duly served upon the parties his Intermediate Report on the election. No objections or exceptions to the Intermediate Report have been filed by any of the parties. As to the balloting and its results, the Regional Director reported as follows : Total number eligible to vote---------- ------------------------------- 2305 Ballots cast for Bakery & Confectionery Workers Interna- tional Union, Local 464___________________________________ 1125 Ballots cast for United Chocolate Workers of America, Local 2_ 733 Total number of ballots cast for neither_____________________ 165 Total number of blank ballots______________________________ 3 Total number of void ballots________________________________ 0 Total number of challenged ballots__________________________ 71 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, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Bakery & Confectionery Workers Inter- national Union, Local 464, affiliated with the American Federation of Labor, has been designated and selected by a majority of the produc- tion and maintenance employees of the Hershey Chocolate Corpora- tion, exclusive of teamsters, office workers, executives, attorneys, traveling and outside salesmen, superintendents, foremen, and assist- ant foremen, 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, Local 464, affiliated with the American 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. 11 N. L. R. B., No. 54a.