A. Goodman & Son

In the:•Matter of A. GOornrAN & SON and BAKERY & CONFECTIONERY WORKERS INTERNATIONAL UNION1 LOCAL 94, MATZOTH & NOODLE WORKERS, A. F. L. Case No. R-1 /4L.Decided August 31, 1939 Matzoth and Noodle Manufacturing Industry/-Investigation of. Representa- tives: controversy concerning representation of employees: company refused to recognize either of two competing unions as exclusive representatives of em- ployees ; closed-shop contract covering matzoth workers expiring shortly no bar to investigation-Unit Appropriate for Collective Bargaining: all em- ployees including seasonal employees , but excluding drivers, salesmen , super- visors, and clerical employees-Election Ordered Mr. Daniel Baker, for the Board. Drechsler & Leff, by Mr. Mortimer Horowitz, of New York City- -for-'the Company. Mr. Heyman E. Cooper, of -New York City, for Local 94. Mr. Francis D. Saitta, of New York City, for the Association. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Oli•March 24, 1939, Bakery & Confectionery Workers. International Union, Local 94, Matzoth & Noodle Workers, A. F. L., herein called Local 94, filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of A. Goodman & Sons, Inc.,' New York City, 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 May 25, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of Na- tional Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Di- 3 Incorrectly designated A. Goodman & Son in the formal papers. 14 N. L. R. B., No. 102. 1213 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rector to conduct it and to provide for an appropriate hearing upon due notice. On June 26, 1939, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, upon Local 94, and upon Macaroni Employees' Association, Inc., -herein called the Association, a labor organization claiming to represent em- ployees directly affected by the investigation. Pursuant to the no- tice, a. hearing was held on July 17 and 18, 1939, at New York City, before Charles S. Lobinger, the Trial Examiner duly designated by the Board. The Board, the Company, Local 94, and the Associa- tion were represented by counsel., and all - participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, 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 Ex- aminer 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 Company is a New York corporation engaged in the business of manufacturing, selling, and distributing matzoths, noodles, and macaroni products. Approximately 85 per cent of the raw materials used by it are shipped to it from points outside the State, and 20 per cent of the manufactured products are shipped to points outside the State of. New York. The Company employs approximately 100 employees and does an annual business of approximately $750,000. The Company admits the jurisdiction of the Board. . II. THE ORGANIZATIONS INVOLVED Bakery & Confectionery Workers International Union, Local 94,. Matzoth & Noodle Workers, is a labor organization affiliated with the American Federation of Labor. It admits to membership all em- ployees of the Company, excluding salesmen, drivers, and office and supervisory employees. Macaroni Employees' Association, Inc., is an unaffiliated labor orgaaiizaition admitting to its membership all employees of the; Company engaged in the production of macaroni and noodles, ex- cluding supervisory and office employees. A. GOODMAN & SON III. THE QUESTION CONCERNING REPRESENTATION 1215 On March .2, 1936, the Company and Local 94 entered into a closed-shop contract governing only the matzoth workers of the Company, the contractto remain in full force and effect until Octo- ber 1, 1939. In April or May 1939 , the Association, claiming to represent a majority of the macaroni and noodle workers in the plant , requested the Company to deal with it as exclusive representative of these employees. The Company refused this request and stated that it would not bargain with the Association or Local 94 unless and until one or the other was certified by the Board as the exclusive repre- sentative of its employees. Under the circumstances it is clear that the contract does , not preclude the Board from investigating or certifying a bargaining representative for the purpose of negotiating a new agreement for the period following October 1, 1939, if such is desired.2 We. find , that a question has arisen concerning the 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. V. THE ' APPROPRIATE UNIT Local 94 urges that all employees of the Company, including the seasonal workers, but excluding the drivers, salesmen, supervisors, and clerical employees, constitute a unit appropriate for the pur- poses of collective bargaining. The Association contends that all the employees of the Company employed in the macaroni and noodle plant, including the mechanics, elevator men, and packers, but ex- cluding the salesmen, drivers, and clerical and supervisory em- ployees, constitute a unit appropriate for the purposes of collective bargaining. The Company takes a . neutral position as to what should constitute the appropriate unit or units. It is important to note that the Association claims all the em- ployees in the macaroni and noodle plant, the unskilled as well _ as 2 Cf. Matter of Heldman-Schild-Lasser, Inc. and Cincinnati Joint Board of the Amalga- snated,Clothing.Workers of America ( C. I. 0.), 11 N. L. R. B. 1289. 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the skilled. Its assertion is not based on a claim that the employees in the noodle and macaroni plant constitute a distinct skilled craft. The Company's production is carried on in two adjoining build- ings. The matzoth department is housed in one and the macaroni and noodle department in the other. The first and second -flocirs,,off-the- two buildings are joined together by connecting passageways. Be- cause of the required rabbinical supervision in the matzoth, plant and for certain other administrative purposes, the Company has maintained a distinction between the two departments. At the hear- ing, however, the Company took the position that the plant as a whole constituted a single business unit, and was operated as, such.. The evidence amply supports this position. The offices are the same for both departments, and Erich Cohn, president of 'the Company, spends approximately 4 hours daily in both plants overseeing production. It is true that the types of work performed in the Company's two departments are somewhat different. Special training is required for specific operations in both departments. On the other hand, there is a considerable amount of interchanging between the two departments. During the 4-month busy season in the matzoth,plant which precedes Passover, many of the employees of the macaroni and noodle plant are shifted to positions in the matzoth plant. Follow- ing Passover, many of the regular matzoth workers are transferred to the macaroni and noodle plant where they perform various duties connected with the packing and shipping of macaroni and noodles. The evidence shows that 16 of the 23 regular matzoth employees work approximately 4 months annually in the macaroni and noodle plant. Upon all of the evidence, we conclude that the manner in which the Company operates the macaroni and noodle plant does not require that the plant be regarded as a separate unit for the purposes of col- lective bargaining. The, admitted differences between the two plants are not cogent, in view of all the other circumstances brought out at the hearing.' The Company employs approximately 25 seasonal workers in its matzoth and macaroni and noodle plants. The same seasonal em- ployees are recalled year after year by the Company and they work approximately 4 months annually. Under the circumstances, we are of the opinion that they should be included in the unit. We find that all the employees of the Company, including the sea- sonal employees, but excluding drivers, salesmen, supervisors, and clerical employees, constitute a unit appropriate for the purposes $See ! Matter of Fried, Ostermann. Co. and Local 80, International Glove Workers of America, A. F. L., 7 N. L. R. B. 1075. A. GOODMAN & SON 1217 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 Although Local 94 and the Association claimed substantial mem- bership among the employees of the Company, no evidence was in- troduced at the hearing upon the basis of which we could make a finding that a majority of the employees in the unit found to be appropriate have selected one union rather than the other. We therefore find that an election by secret ballot is necessary to resolve the question concerning representation. Since we have not upheld the contentions of the Association as to the appropriate unit, we will allow the Association, if it desires, to withdraw its name from the ballot by giving such notice to the Regional Director within five (5) clays from the date of the Direction of Election. The pay roll for the period ending April 24, 1939, was introduced in evidence at the hearing. There were no objections to the use of this pay roll as a basis for determining eligibility to participate in an election in the event one was directed. However; in view ,of the lapse of time, we will direct that the employees eligible to vote in the election will be those employees who were .employed during the pay-roll period immediately preceding the date of this Direction of Election, including the seasonal employees, employees who did not work during such pay-roll period because they were ill or on vaca- tion, and employees who were then or have since been laid off only temporarily, but excluding those who have since quit or been dis= charged for cause. 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 A. Goodman & Sons, Inc., New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the employees of the Company, including the seasonal em- ployees, but excluding drivers, salesmen, supervisors, and clerical employees, constitute a unit appropriate for the purposes of collec- tive bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor.Relattons 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 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with A. Goodman & Sons, Inc., New York City, 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 Second Region, acting in this mat- ter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all the employees of the Company, who were employed during the pay-roll period immediately preceding the date of this Direction, including the seasonal employees, employees who did not work during such pay- roll period., because.. they were ill or on vacation, and :employees who were then or have- since 'been laid off only temporarily, but excluding drivers, salesmen,' supervisors, clerical employees, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Bakery & Confectionery Workers International Union, Local 94, Matzoth & Noodle Workers, affiliated with the American Federation of Labor, or by Macaroni Employees' Association, Inc., for the purposes of collective bargaining, or by neither. MR. EDWIN S: SMITH took no part in the consideration of the above Decision and Direction of Election.