Weinberger Sales Co., Inc.

11 In the Matter of WEINBERGER 'SALES 'Co., INC. and UNITED 'DOCK & FRUIT WORKERS' UNION, FOR AFFILIATION WITH THE C. I. O. Case No. R-2030.-Decided October 5,1940 Jurisdiction : banana purchasing, importation, packing and sales industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord recognition to union ; election necessary. Unit Appropriate for Collective Bargaining : all dock workers employed in load- ing and unloading vessels, including checkers and regular inspectors, but ex- cluding foremen, special inspectors, watchmen, paymasters, superintendents, deputy sheriffs, and clerical and office employees. Mr. Norman Bradley, of New Orleans, La., for the Union. Mr. Harry F. Stiles,.Jr., of New Orleans, La., for the Company. Mr. Ben,Law, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 26, 1940, United Dock & Fruit Workers' Union,' herein called the Union, filed with the Regional Director for the Fifteenth Region (New Orleans, Louisiana), a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees,of Weinberger Sales Co., Inc., New Orleans, Louisiana, 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 August 24, '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 hearing upon due notice. 'This is the correct designation of the Union . The petition is erroneously signed by the Union as United Dock & Fruit Workers ' Union, for affiliation with the C. I. O. 27 N. L. R. B., No. 126. 670 WEINBERGER SALES CO., INC. 671 On August 27, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the Union. Pursuant to the notice, a hearing was held on September 5, 1940, at New Orleans, Louisiana, before C. Paul Barker, the Trial Examiner duly designated by the Board. The Company was repre- -sented by counsel and the Union by its vice president; both partici- pated 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 objections to the admission of evidence and granted a motion by the Union to amend its petition. 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 follow- ing : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Weinberger Sales Co., Inc., is a Louisiana corporation engaged in,the purchase, importation, packing, and sale of bananas. Its gross yearly sales for the year of 1939 exceeded $400,000. All the bananas it purchases are obtained at the Port of Mexico, Mexico, and are transported by the steamship Allister, which is under a "fruit time charter" to the Company, to New Orleans, Louisiana. The Allister makes approximately three and one-half trips each month from Port of, Mexico, Mexico, to New, Orleans, Lousiana, and carries be- tween 10,000 and 25,000 bunches of bananas each trip. The bananas are unloaded at the .Company's docks at Arabi, Louisiana, and loaded in railroad cars and trucks for shipment to purchasers. All the bananas carried by the' Company are sold and delivered to- pur-chasers outside the State of Louisiana. The Company employs approximately 400 persons for unloading the Allister each time it ariives, at Arabi, 'Louisiana. II. THE ORGANIZATION INVOLVED United Dock & Fruit Workers' Union is an unaffiliated labor organization , admitting to membership dock employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION, I Prior to July 1940, the Company informed the Union that it would not-recognize the Union as an agent for collective bargain- 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing except upon a showing of majority representation. At the-hear- ing the Company denied. the allegation in the- petition that the Union represents 60 per cent of the Company's employees in an appropriate unit and, further, took the position that the Union does not have as members a majority of such employees.- In a statement by the Regional Director lie reports that the Union submitted to him evi- dence that it represents a substantial number of employees within the unit hereinafter found to be appropriate.' We find that a question has arisen concerning the representation- of employees of the Company. IV. THE APPROPRIATE UNIT 'In its petition the Union claimed that an appropriate unit con- sisted of all dock workers,, including checkers, inspectors and fore- men, employed in'loading and unloading vessels, excluding watch- men, paymasters, superintendents, deputy sheriffs, and clerical 'and office employees. At the hearing the Union took the position that the unit which it had contended was appropriate in the petition should be altered to the extent of excluding all foremen and special inspectors. The Company contended that the unit should be that originally-stated in the petition and that foremen- and special in-' spectors should be included. , The foremen in question direct and supervise the work of; other dock employees in unloading, carrying, cutting, and inspecting- bananas. They apparently are not required to do any of the physical' labor required in these operations and have authority to recommend the discharge of employees under their supervision. We shall exclude foremen from the unit. The record does not disclose the exact nature of the duties performed by special inspectors.' Their rate of compensation, however, is about 18 per cent higher than that of regular inspectors. Under the circum- 2 The Regional Director repotted (a) That the Union had submitted to him 294 authorization cards;- (b) That 254 of the 294 signatures affixed to the authorization cards appear to be genuine original signatures and 40 of the signatures were affixed by the signer placing his mark on the card with someone else w i iting in his name- (c) That 119 of the cards were not dated, but were submitted between July 29 and August 22, 1940 , and were represented to him by the Union as having been , signed within that period, and 175 of the cards were dated during July 1940 ; (d) Thalt 120 of those names appearing on the 254 cards bearing apparently original signatures ' and 20 of those names appearing on the 40, cards signed with the mark of the signer also appear on the Company 's pay roll for August 12, 1940 , which nsts-412- employees; - (e) That 103 of those names appearing on the 254 cards bearing apparently original signatures ,and 19 of those names. appearing on the 40 cards signed with the mark.of the signer also appear on the Company 's pay roll for August 21, 1940,'which lists 380 employees. WEINBERGER SALES CO., INC. - 673, stances, and since the Union does not wish to bargain for them, we shall exclude special inspectors from the unit. We find that all dock workers employed by the Company, in loading and unloading vessels, including checkers and regular inspectors; but excluding foremen, special inspectors, watchmen, paymasters, superin- tendents, deputy sheriffs, and clerical and office employees,, 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 other-. wise effectuate the policies of the Act. - VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolvedby holding an election by secret ballot. The Union asked at the hearing that the Company's pay rolls for August 12 and 21, 1940, be used to determine the eligibility of employees to vote in any election which might,be ordered. The Company took no position on this matter. The evidence indicates that the two pay rolls requested by the Union are representative pay rolls of the Company. We see no reason why they should not be used to determine eligibility. - We shall direct that the employees in the appropriate unit who were employed by the Company during the pay-roll periods of either August 12 or 21,1940, shall be eligible to participate 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 or LAw 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Weinberger Sales Co., Inc., New Orleans,, Louisiana, within the meaning of Section 9 (c) and Section 2 (6) and .(7) of the Act. 2. All dock workers employed by the Company in loading and un- loading vessels, including checkers and regular inspectors, but exclud- ing foremen, special inspectors, watchmen, paymasters, superin- tendents, deputy sheriffs, and clerical and office employees, constitute a unit -appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the 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 Relations Act, and pursuant to Article, III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby' 323428-42-vol. 27--44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIE&TrED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Weinberger Sales Co.,' Inc., New Orleans, Louisiana, 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, under the direction and supervision of the Regional Director for the Fifteenth 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 dock workers employed by the Company in loading and un- vessels whose names appear on either the August 12, 1940, or loading August 21, 1940, pay roll of the Company, including checkers and regular inspectors, but excluding foremen, special inspectors,-watch- men, paymasters, superintendents, deputy sheriffs, and clerical and office employees, to determine whether or not they desire to be repre- sented by United Dock and Fruit Workers' Union for the purposes of collective bargaining.