Bunte Brothers

In the Matter of BUNTE BROTHERS , A CORPORATION and CANDY -WORK- ERS UNION LOCAL 351 , BAKERY & CONFECTIONERY WORKERS' INTER- NATIONAL UNION OF AMERICA (A. F. OF L.) Case No. R-0255.--Decided March 7, 1941 Jurisdiction : confections manufacturing industry. Investigation and Certification of Representatives : existence of question: stip- ulated ; election necessary. Unit Appropriate for Collective Bargaining : all hourly paid non-supervisory production employees of the Company, including packers, wrappers, shipping and receiving clerks, factory janitors, cafeteria employees, loaders, paper cutters, city store order pickers, city shipping department employees, adver- tising department employees, warehouse employees, and the gardener, but excluding powerhouse employees, maintenance employees, watchmen, sales- men, foremen, foreladies, assistant foremen, assistant foreladies, full-time clerical employees, truck drivers, elevator operators, printers, the order chaser and stock clerks in the shipping room, and the garage employee. Mr. Otto A. Jaburek, of Chicago, Ill., for the Company. Mr. Patrick J. Taft, of Washington, D. C., and Mr. James Cross, of Chicago, Ill., for the Union. Mr. Louis Newman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 9, 1940, John Kunio and John DiMenna, respectively vice president and corresponding secretary of Candy Workers Union Local 351, Bakery & Confectionery Workers' International Union of America (A. F. of L.), herein called the Union, filed with the Re- gional Director for the Thirteenth Region (Chicago, Illinois) a, petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Bunte Brothers, a cor- poration, Chicago, Illinois, herein called the Company, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On December 30, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) 30 N. L. R. B., No. 22. 132 BUNTE BROTHERS - 133 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. On January 2, 1941, the Union filed with the Regional Director an amended petition for investigation and certification of representatives. On January 2, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served on the Company and the Union. Pursuant to the notice, a hearing was held on January 13 and 14, 1941, at Chicago, Illinois, before Charles F. McErlean, the Trial Examiner duly designated by the Chief Trial Examiner. The Com- pany and the Union 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 the admissibility of evidence. The Board has reviewed the rulings of the Trial Ex- aminer and finds that no prejudicial error was 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 1 The Company is an Illinois corporation, having its only factory in Chicago, Illinois. It is engaged in the manufacture, sale, and distribution of various candies, confections, -and other similar prod- ucts. From June 1, 1938, to June 1, 1939, the Company purchased for use in manufacturing at its factory approximately 15,000 tons or more than $2,000,000 worth of raw materials, including sugar, corn syrup, cocoa - beans, starch, flavors, flavoring extracts, nuts, glycerin, gum arabic, and egg albumen, 99 per cent of which raw materials, valued at more than $2,000,000, were shipped to the fac- tory from States other than Illinois and from foreign countries. During t'his'period the Company shipped from the factory approxi- mately 16,000 tons of finished products, and about 75 per cent of which, having a value of $3,407,000, were shipped from the factory to destinations outside the State of Illinois. Also during this pe- riod the Company used at its factory for packing and shipping pur- poses approximately $575,000 worth of packing materials, including i The facts as to its business were stipulated by the Company. With respect to the period from June 1, 1938, to June 1, 1939, the stipulated facts are the same as those found by the Board in Matter of Bunte Brothers a corporation and Grace Accettura, et al, 26 N. L. R. B. 1419. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD boxes, cases, cartons, pails, barrels, sealing tape, string, gum, and wire, about $460,000 worth of which materials were shipped to the factory from outside the State of Illinois; and used about 15,000 tons of coal, 50 per cent of which was shipped to the factory from the State of Indiana. There has been no substantial change in the business of the Com- pany since June 1,.1939. The figures set out above for the period from June 1, 1938, to June 1, 1939, were approximately the same for the period from June 1; 1939, to June 1, 1940, and the Company's interstate purchases and sales were proportionately the same for the period from June 1, 1939, to June 1, 1940. IT. THE ORGANIZATION INAOLVED Candy Workers Union Local 351, Bakery & Confectionery Work- ers' International Union of America, is a labor organization affili- ated with the American Federation of Labor. It admits to member- ship employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION It is stipulated by the parties that there is a question concern- ing the representation of the Company's employees, and that it arose in the following manner : On September 23, 1940, the Union wrote the Company requesting that the Company re'coglnze it as the collective bargaining representative of the Company's employees and start bargaining collectively with it as such representative. On September 26, 1940, the Company acknowledged receipt of the Union's request, stated that it doubted whether the Union repre- sented a majority of all the Company's employees, and refused therefore to grant the Union recognition as requested. Membership and authorization cards produced by the Union at the hearing for examination by the Trial Examiner show that the Union represents a substantial number of employees in the, unit found below to be appropriate.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 Com- ' The Tual Examiner stated at the hearing that , of 448 cards submitted xo him, 435 seemed to bear authentic signatures . Of the 435 names thus sjgned on the cards, 309 also appeared on the Company 's pay roll of January 11, 1941 There were 875 employees' names on this pay roll. BUNTE`BROTHERS 135 pany described in Section I above, has a close, intimate, and sub- stantial 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 The Union in its petition requests a unit of all hourly paid non- supervisory production employees, including packers, wrappers, shipping and receiving clerks, factory janitors, and cafeteria em- employees, but excluding powerhouse employees, maintenance employees, watchmen, salesmen, foremen, foreladies, assistant fore- men, assistant foreladies, full-time clerical employees, city store clerks, and truck drivers. The Company agrees to inclusion in the unit of all employees whom the Union wants included. At the hear- ing, the parties agreed also to the inclusion of 4 hourly paid non- supervisory employees in the advertising department. In addition, the Company requests, and the Union does not object to, the inclu- sion of the Company's gardener and of the employees at the Com- pany's new warehouse. The parties are in disagreement, however, as to whether certain groups of employees are properly regarded as within or without the agreed-upon classifications and as,to whether certain additional classifications of employees should also be part of the unit. 1. Under the pay-roll `classification of "Miscellaneous and Utility" the Company employs an order chaser and 2 stock clerks. The order chaser checks on orders received from customers to see whether they are being promptly and completely ,filled ; the stock clerks take and keep inventory of the candy products which the Company has on hand. The Company contends that these employees are part of the shipping department and should therefore be included in the unit. The Union contends that the work of these employees is primarily clerical in nature and that they should, therefore, be excluded. We find that these 3 men are essentially clerical employees and, as such, should be excluded. 2. Employees in the city shipping department prepare goods for shipment to customers within the city of Chicago. The Company wants these employees included, on the ground that they are part of the main shipping department and therefore fall within a classi- fication which the parties agree should be included. The Union requests their exclusion, on the ground, that they are "more like clerks . . . than real workers." 3 The duties of these employees are 3 The witness who testified for the Union in this respect subsequently admitted lack of personal knowledge as to the duties of the employees in question. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substantially the same as. those of other employees in the shipping ,department whom the Union wants included, except that the orders they work on are usually smaller than those gomgilto. out-of-town customers, the methods of wrapping and packing are therefore some- what different, and they have their own foreman. No substantial reason appears for excluding them from a unit containing other employees with substantially similar functions. They will therefore be included. 3. Employed by the Company in its shipping department are 3 men known as loaders. These employees load shipments of the Company's products on freight cars, and in some cases on trucks. The Company requests their inclusion as part of the shipping depart ment. The Union claims that these employees are closely related in their work to the truck drivers, that they are eligible for member- ship in another A. F. of L. union, and that they should therefore be excluded. On the other hand, a Union officer testified that if these employees are part of the shipping department they should be included. The same Union officer also testified that the loaders should be excluded because they are "just like clerks." In view of the inconclusive nature of the evidence adduced by the Union, we are of the opinion'that the loaders should not be excluded from the unit found to be appropriate. 4. With respect to its assistant foremen and assistant foreladies, of whom there are 21, the Company contends that they should be included because they are hourly paid and because they allegedly take part in regular production work and have no supervisory func- tions. There is evidence, however, that ordinary employees take orders from assistant foremen and assistant foreladies, that the latter do not do the same kinds of work as ordinary employees, that they get additional pay for their extra duties, that they take the place of foremen and foreladies when necessary, 'and that their work is par- tially clerical in nature. The Union therefore contends, and we find, that assistant foremen and assistant foreladies are supervisory em- ployees and, as such, should be excluded from the appropriate unit. 5. Wrapping and packing materials are made up by the Company's factory supply department and furnished by it to other departments as needed. Employed in this department are two or three paper cut- ters. The Company urges the inclusion of the paper cutters, on the ground that they are production employees. While agreeing in gen- eral to the inclusion of the supply department employees, the Union requests the exclusion of the paper cutters, on the ground that "we class them as printers." The parties have agreed to the exclusion of the so-called printers, who operate a multigraph machine and a cello- phane printing machine, the Union because they are eligible for BUNTE BROTHERS 137 membership in another A. F. of L. union, and the Company because they are salaried and supervisory employees. The paper cutters work on some wrapping materials which are previously or sub- sequently handled by the printers, but they also work on such ma- terials which do not pass through the hands of the printers. There is no explicit evidence that the paper cutters are eligible for mein- bership in another labor organization. We are of the opinion that the work of the paper cutters is as much a part of production as is the work performed by other employees who are engaged primarily in preparing the Company's products for shipment and whom the Union wants included. We shall include them in the unit found to be appropriate. G. The city store handles the orders of candy jobbers and other customers who call at the Company's plant in their own trucks and pick up the products they want. The department consists of a foreman, a cashier, 2 billers, and 2 order pickers. The par- ties are agreed that foremen should be excluded from the unit, and the work of the cashier and the 2 billers clearly brings them within the stipulated exclusion of clerical employees. The 2 order pickers fetch and assemble the goods wanted by the candy jobbers and other customers who drive in to the loading platform used by the city store. Their duties are similar to those of other order pickers em- ployed in the main shipping room, whom the Union wants included. In support of its request for exclusion of the city store order pickers, the Union points out that they have some direct contact with the Company's customers. We fail to see why they should therefore be set apart from other employees whose duties are otherwise similar. We find that the city store order pickers should be included. 7. The Company has in its employ a group of machinists, electri- cians, millwrights, carpenters, pipefitters, and painters, to whom the record refers as maintenance employees. The Company contends that these employees are engaged largely in maintaining, repairing, and making parts for production machinery and other factory equip- ment, and that their work is therefore an integral part of production. It appears, however, that the maintenance employees are carried on the Company's pay roll as a separate department, that they have their own foreman, that they are regarded as skilled employees, and that their average pay is higher than that of the production em- ployees. It also appears that they are all eligible for membership in other unions affiliated with the A. F. of L. For these reasons' the Union contends, and we find, that the maintenance employees should be excluded from the appropriate unit. 8. The Company also has in its employ 2 elevator operators and a garage employee. The elevator operators move raw materials and 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD candy products on freight elevators from point to point within the plant. The garage employee washes the Company's trucks and has charge of the Company's garage. All these employees are eligible for membership in other unions affiliated with the A. F. of L. The union requests, and we find, that they, like the maintenance employees, should be excluded from the appropriate unit. We find that all hourly paid non-supervisory production em- ployees of the Company, including packers, wrappers, shipping and receiving clerks, factory janitors, cafeteria employees, loaders, paper cutters, city store order pickers, city shipping department employees, advertising department employees, warehouse employees, and the gardener, but excluding powerhouse employees, maintenance em- ployees, watchmen, salesmen, foremen, foreladies, assistant foremen, assistant foreladies, full-time clerical employees, truck drivers, ele- vator operators, printers, the order chaser and stock clerks in the shipping room, and the garage employee, 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 to collective bargaining and will otherwise effec- tuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. _ At the hearing, the Company requested that its pay roll for the week preceding the date of any Direction of Election issued by the Board be the basis for determining eligibility of employees to par- ticipate' in an election. The Union requested that the Company's pay roll of January 11, 1941, be used, basing its request on the ad- mitted intention of the Company to hire additional employees during the month or two following the hearing herein. There is no show- ing that the contemplated increase in personnel by the Company has any purpose other than to meet the requirements of increased production schedules, or that the employees thus added to the Com- pany's pay roll are to be retained only temporarily. We shall there- fore follow our general practice and direct that all employees in the appropriate unit who were employed by the Company during the pay-roll period immediately preceding the date of our Direction of .Election herein, including employees who did not work during such pay-roll period because they were ill or on vacation or absent because called for military service, and employees who were then or have since been temporarily laid off, but excluding employees who have since quit or been discharged for cause, shall be eligible to partici- pate in the election. BUNTE BROTHERS 139 Upon the basis of the above findings of fact and upon the entire record an ,the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Bunte Brothers, a corporation, Chicago, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All hourly paid non-supervisory production employees of the Company, including packers, wrappers, shipping and receiving clerks, factory janitors, cafeteria employees, loaders, paper cutters, city store order pickers, city shipping department employees, advertising de- partment employees, warehouse employees, and the gardener, but excluding powerhouse employees, maintenance employees, watchmen, salesmen, foremen, foreladies, assistant foremen, assistant foreladies, full-time clerical employees, truck drivers, elevator operators, print- ers, the order chaser and stock clerks in the shipping room, and.the garage employee, constitute a unif 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 Re- lations 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Bunte Brothers, a corporation, Chicago, Illinois, 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 Thir- teenth Regibn, 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 hourly paid non-supervisory production employees of the Company who were employed by it during the pay- roll period immediately preceding the date of this Direction of Elec- tion, including packers, wrappers, shipping and receiving clerks, factory janitors, cafeteria employees, loaders, paper cutters, city store order pickers, city shipping department employees, advertising department employees, warehouse employees, the gardener, employees, who did not work during such pay-roll period because they were, 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,ill or on vacation or absent because called for military service, and employees who were then or have since been temporarily laid off, but excluding powerhouse employees, maintenance employees, watch- men, salesmen, foremen, foreladies, assistant foremen, assistant fore- ladies, full-time clerical employees, truck drivers, elevator operators, printers, the order chaser and stock clerks in the shipping room, the garage employee, and any employees who have since quit or been dis- charged for cause, to determine whether or not they desire to be rep- resented by Candy Workers Union Local 351, Bakery & Confectionery Workers' International Union of America (A. F. of L.), for the purposes of collective bargaining.