Miss Saylor's Chocolates, Inc.

In the Matter Of MISS SAYLOR'S CHOCOLATES, INC. and Miss SAYLOR'S CHocoLATEs EMPLOYEES AssocLATloN Case No. R-1658.-Decided January 20, 1940 Candy Manufacturing Industry-Investigation of Representatives : controversy concerning representation of employees : employer refuses to recognize labor organization as sole bargaining agent unless certified as such , by the Board- Unit Appropriate for Collective Bargaining : production employees excluding temporary and clerical employees , salesmen, the dipping , and, wrapping, fore- lady, the packing department forelady , the superintendent , and, all -employees of higher rank; agreement as to-Election Ordered: eligibility date set as of pay roll next preceding date of Direction of Election. Mr. Jonathan H. Rowell, for the Board. Breed, Burpee and Robinson, by Mr. Bestor Robinson, of Oakland, Calif., for the Company. Weinmann, Quayle, and Berry, by Mr. Donald K. Quayle, of Alameda, Calif., for the Association. Mrs. Genevieve Smith, of Oakland, Calif., for the Candy Union. Mr. David Rein, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 14, 1938, Miss Saylor's Chocolates Employees Asso- ciation, herein called the Association, filed with the Regional Direc- tor for the Twentieth Region (San Francisco, California) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Miss Saylor's Chocolates, Inc., Alameda, California, 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. A petition alleging that a question affecting commerce had arisen concerning the representation of employees of the Company having also been filed by Bakery & Confectionery Workers Union of America, Local 1190, herein called the Candy Union, the National Labor Relations Board, herein called the Board, on February 16, 19 N. L. R. B., No. 75. 698 MISS SAYLOR'S CHOCOLATES, INCORPORATED 699 1939, acting pursuant to Article III, Section 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered that the cases arising upon the two petitions be 'consolidated for the purposes of hearing and for all other purposes, and that one record of the hearing be made, and acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of said Rules and Regulations, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing. On December 7, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the Association, and the Candy Union. On the same day the Associa- tion. filed an amended petition. On December 11, 1939, the Board, acting pursuant to Article III, Section 10 (c) (4), of National Labor Relations Board Rules and Regulations-Series 2, issued an order severing the two cases and granting the Candy Union permission to withdraw its petition. - Pursuant to the notice of hearing, a hearing was held on December 14, 1939, at San Francisco, California, before Berdon M. Bell, the Trial Examiner duly designated by the Board. The Candy Union appeared and intervened at the hearing. The Board, the Company, and the Association were represented by counsel and the Candy Union by its secretary. All 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. No motions or objections to the admission of evidence were made during the course of the hearing. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Miss Saylor's Chocolates, Inc., a 'California corporation with its principal office and place of business in Alameda, California,Y owns and operates a plant for the manufacture of candy at Alameda, Cali- fornia. It also operates concessions in Oakland, California; Port- land, Oregon; and Takoma, Washington; and maintains sales repre sentatives in the States of Utah, Texas, Tennessee, Iowa,' Oregon, and Colorado. - During the year 1937, the Company manufactured candy with a gross sales value of $525,797, and sold and delivered $307,068 thereof to purchasers in States other than the State of California; during the year 1938, $272,000 of its total output valued at $494,932.13, was sold outside of the State of California; and for the first 11 months of 1939, 1 The Company has a branch office in Los Angeles, California. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $225,000 of its output valued at $408,760.65, was sold to purchasers outside the State of California. The Company purchased for use in production, chocolate; sugar, cream, butter, flavoring, boxes, padding, cups, cellophane, nuts, shipping cartons, corn syrup, and other ma- terials amounting to $256,233.93 in 1937, $215,076.59 in 1938, and $144,197.06 in the first 11 months of 1939. In each of the aforemen- tioned periods approximately 20 per cent of these materials were pur- chased and delivered from points outside the State of California. As of the date of the hearing, the Company employed 97 employees. At the hearing the Company stipulated that it was engaged in interstate commerce. II. THE ORGANIZATIONS INVOLVED Miss Saylor's Chocolates Employees Association is an unaffiliated labor organization admitting to membership employees of the Company at its Alameda plant. Bakery & Confectionery Workers Union, Local 119C, is a labor or- ganization affiliated with the American Federation of Labor, admitting to membership employees of the Company at its Alameda plant. III. THE QUESTION CONCERNING REPRESENTATION On September 1, 1938, the Association made a request to the Com- pany for recognition as bargaining representative. The Company responded that it would not recognize the Association unless the As- sociation was certified as bargaining agent by the Board. Subse- quently, the Company met with the Association and discussed the terms of a proposed contract. An agreement on terms was reached, but the Company refused to sign the contract unless the Association was certified as bargaining agent by the Board. We find that a question has arisen concerning the representation of employees of the Company at its Alameda plant. 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 rela- tion 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. MISS SAYLOR'S CHOCOLATES, INCORPORATED 701 V.' THE APPROPRIATE UNIT The Company, the Association, and the Candy Union are agreed, and we find, that the production employees of the Company at its Alameda plant, excluding temporary and clerical employees, sales- men, the dipping and wrapping forelady, the packing-department forelady, the superintendent, and all employees of higher rank consti- tute a unit appropriate for the purposes of collective bargaining. We further find that said unit will insure to the employees of the Com- pany 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 At the hearing, neither the Association nor the Candy Union offered any documentary proof of membership, it being agreed ,by the labor organizations and the Company that an election should be held with the names of the Association and the Candy Union appearing on the ballot. We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by the holding of an election by secret ballot. It was also agreed that the pay roll next preceding the date of the election would be appropriate for the determination of eligibility to vote in the election. We see no reason to depart from our usual prac- tice, however, and we shall direct that the pay roll next preceding the date of. this Direction of Election be employed as the .basis for determining eligibility. 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. Miss Saylor's Chocolates Employees Association and Bakery & Confectionery Workers Union of America, Local 119C, are labor organizations within the meaning of Section 2 (5) of the Act. 2. A question affecting commerce has arisen concerning the repre- sentation of employees of Miss Saylor's Chocolates, Inc., at its Ala- meda, California, plant, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 3. The production employees of the Company at its Alameda plant, excluding temporary and clerical employees, salesmen, the dipping and wrapping forelady, the packing-department forelady, the super- intendent, and-all employees of higher rank, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, 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 Miss Saylor's Chocolates, Inc., at its Alameda, California, plant, an election by secret ballot shall be conducted as early as possible, but not later than thirty- (30) days from the date of this Direction of Election under the direction and supervision of the Regional Director for the Twentieth Region, acting 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 the production employees of the Company at its Alameda plant whose names appear upon the pay roll next preceding the date of this Direction of Elec- tion, including the employees whose names do not appear on such pay roll because they were ill or on vacation or temporarily laid off, but excluding all temporary and clerical employees, salesmen, the dipping and wrapping forelady, the packing-department forelady, the superintendent, and all employees of higher rank, and excluding also all employees who between such pay-roll date and the date of the election have quit or been discharged for cause to determine whether they desire to be represented by Miss Saylor's Chocolates Employees Association or by Bakery & Confectionery Workers Union of Amer- ica, Local 119C, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither.