H. Rousseau & Son, Inc.

In the Matter of H. ROUSSEAU & SON, INC. and UNITED BAKERY WORKERS UNION, LOCAL No. 84 (C. 1. 0.) 31, 1940 Case No. R-1950.-Decided Jul, Jurisdiction : bakery industry. Investigation and Certification of Representatives : existence of question where employer refuses to accord full recognition to union ; election necessary. Union holding closed-shop contract agrees that it "be suspended" pending the outcome of election to determine representatives. Seasonal employees filling places of permanent employees on vacation held ineligible to vote where it does not appear that they have such a substantial expectancy of remaining employees of the Company as to entitle them to par- ticipate in the election. Unit Appropriate for Collective Bargaining : all employees excluding sup«;rvisory employees, clerical employees, and truck drivers. Mr. Mariano S. Bishop, of Fall River, Mass., for the United. Mr. William V. Irvine, of Boston, Mass., for the International. Mr. J. Edward Lajoie, of Fall River, Mass., for the Company. Mr. William Strong, of counsel to the Board. • DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July 11, 1940, United Bakery Workers Union, Local No. 84, affiliated with the Congress of Industrial Organizations, herein called the United, filed with the Regional Director for the First Region (Boston, Massachusetts) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of H. Rousseau & Son, Inc., Fall River, Massachusetts, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 13, 1940, 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 2, as amended,' ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hear- ing upon due notice. 25 N. L. R. B., No. 116. 1116 H. ROUSSEAU & SON, INC. 1117 On July 15, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the United, and Bakery & Confectionery Workers International Union of America, Local No. 137, affiliated with the American Federation of Labor, herein called the International. Pursuant to notice, a hearing was held on July 18, 1940, at Fall River, Massachusetts, before Albert J. Hoban, the Trial Examiner duly designated by the Board. The United and the International were represented by representatives, and the Company by counsel; 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. Dur-, ing the course of the hearing the Trial Examiner ruled upon several motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudi- cial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY H. Rousseau & Son, Inc., is a corporation organized under the laws of the Commonwealth of Massachusetts, having its office and plant at Fall River, Massachusetts. The Company is engaged in the manu- facture, sale, and distribution of bread. The Company purchases annually more than $140,000 worth of ra%v materials, including' flour, sugar, yeast, lard, salt, and milk. The flour comprises approximately 70 per cent of these raw materials, and all of it comes from without the Commonwealth of Massachusetts. The annual gross sales of the Company amount to approximately $350,000. The Company pro- duces approximately 22,000 loaves of bread each day, 6,000 of which are transported to purchasers outside the Commonwealth of Massachusetts. The Company employs 68 employees. II. THE ORGANIZATIONS INVOLVED United Bakery Workers Union, Local No. 84, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership all bakery workers and helpers, excluding foremen, assistant foremen, supervisory and office employees, and truck drivers. Bakery & Confectionery Workers International Union of America, Local No. 137, is a labor organization affiliated with the American Federation of Labor. It admits to membership all bakery workers and helpers and shippers, excluding supervisors who have the power to hire and discharge, office employees, and truck drivers.. 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION On June 24, 1940, the Company and the International entered into a closed-shop agreement under which the Company recognized the International as the exclusive bargaining agent of all its bakery em- ployees, excluding office help and truck drivers. Thereafter, the Com- pany refused to recognize the United as collective bargaining agent of its employees. On July 8, 1940, the Company, the United, and the International entered into an agreement which, in part, provided that the Board conduct an election to determine which of the two labor organizations the employees desire to represent them in collective bargaining, and further provided that the International "agrees that its contract, dated June 24, 1940, with the Company, shall be suspended" pending the outcome of the election. From the statement of an agent of the Board, introduced in-evidence, it appears that the United and the International each have substantial membership among the employees of the Company. 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 The, activities of the Company set forth in Section III above, occur- ring;in, connection with its operations described in Section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several, States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The United and the International desire a unit composed of all bakery employees of the Company, excluding supervisory and clerical employees and truck drivers. The United would exclude three work- ing foremen, named in Appendix "A," as supervisors, and Romeo Charest, allegedly because he is not a baker. The, International would include these employees and also Edward Boudria, a shipper. The Company's position is that "as far as we are concerned, it does not make any difference" whether the working foremen are in or out of the, unit. It did not clearly indicate what its position is re- specting the other disputed personnel. The three working foremen named in Appendix "A" are without original authority to hire and discharge. They supervise the work of other employees, also participating in it, and report. to higher H. ROUSSEAU & SON, INC. 1119 officials of the Company infractions of rules and disobedience of orders. They discharge upon instruction of their superiors. They are eligible for membership in the International, but not in the United. We find that the three employees named in Appendix "A," are supervisory employees, and that in accordance with our usual practice where one of two competing labor organizations requests the exclusion-of supervisory employees, they should be excluded from the appropriate unit. Charest is a general assistant in the bakery and in other parts of the plant. He assists the bakers, and at times substitutes for them. Both the United and the International admit bakers' help- ers to membership. We find that Charest should be included in the appropriate unit. Boudria is a shipper and helps to load bread upon trucks. The United would exclude any shipper who supervises the work of other employees and would include a shipper's helper or a shipper who works alone and does not, therefore, supervise anyone. It does not appear that Boudria has any helpers or subordinates or that the United desires his exclusion. We shall include him in the appro- priate unit. We find that all employees d the Company, including Romeo Charest and Edward Boudria, and excluding the employees named in Appendix "A" and other supervisory employees, clerical employees, and truck drivers, constitute a unit appropriate 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 We find that the question concerning representation can best be resolved by means of an election by secret ballot and we shall direct the holding of such an election. I . The United would exclude from the election the seven employees named in Appendix "B." The International would permit them to vote. They were employed by the Company on and after June 22, 1940, as temporary employees to substitute for regular employees who are on vacation. They have never before worked for the Company; - At the present time only a few of them are actually performing any work. The Company intends to dispense with their services at the end of this summer. Although increased demand for the Company's 1 See Matter of Gulf Refining Company and Federal Labor Union No 22191, etc, 25 N L R B 745; Matter of Kingsley Lumber Co and -Lumber and Sawmill Workers 'Local No. 2879, 13 N L. R . B. 174.. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - bread may occur this year, possibly requiring the employment of these persons, it does not appear that they have such a substantial ex- pectancy of remaining employees of the Company as to entitle them to participate-in the election. We shall therefore exclude the em- ployees named in Appendix "B" from the election. We shall direct that the employees within the appropriate unit, whose names appear on the pay roll for the period immediately pre- ceding the date of our Direction of Election, including employees within the appropriate unit who did not work during such pay-roll period because they were ill or on vacation and employees who, dur- ing such pay-roll period, were or have since been temporarily laid off, and excluding employees who have since quit or been discharged for cause and the employees named in Appendix "B," shall be eligible to vote in the election. 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 H. Rousseau & Son, Inc., Fall River, Mas- sachusetts, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company, including Romeo Charest and Edward Boudria and excluding the employees named in Appendix "A" and other supervisory employees, clerical employees, and truck drivers, 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, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining, an election by secret ballot shall be conducted as soon as possible, but not later than August 5, 1940, under the direction and super- vision of the Regional Director for the First 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 employees of H. Rousseau & Son, Inc., Fall River, Massachusetts, H. ROUSSEAU & SON, INC. 1121 who were employed by the Company during the pay-roll period immediately preceding the date of this Direction of Election , includ- ing Romeo Charest and Edward Boudria , and employees who were not employed during that pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, and excluding the employees named in Appendix "A" and other supervisory employees , clerical employees , and truck drivers and the employees named in Appendix "B" and employees who have since quit or been discharged for cause , to determine whether they desire to be represented by United Bakery Workers Union, Local No. 84, affiliated with the Congress of Industrial Organizations, or by Bak- ery & Confectionery Workers International Union of America, Local No. 137, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or- by neither. APPENDIX A Raymond Roy Alcide Boissoneau Albert Berube APPENDIX B Maurice Levasseur - Adelard Lapre Raymond Rousseau Bertrand Chouinard Louis Chouinard Paul Berube Ernest Beaupre i MR. WILLIAM M. LEISERSON took no part in the consideration of the above-Decision and Direction of Election.