Cuban Cigar Co.

In the Matter Of CUBAN CIGAR COMPANY and CIGAR MAKERS INTER- NATIONAL UNION. LOCAL #24, AFFILIATED WITH A. F. OF L. Case No. R-S272.-Decided December 22, 1941 Jurisdiction : cigar manufacturing, industry. Investigation and Certification of Representatives : existence of question refusal to accord union recognition; - contract with rival union in effect approximately one year and shortly to expire, no bar to; election necessary Unit, Appropriate for Collective Bargaining : all employees of the Company, excluding office pei sonnel, watchmen, salesmen, employees having authority to hire and discharge. certain designated employees found to be supervisors, machinists and assistant machinists; agreement as to inclusions and exclusions. Mr. Charles Rosenbaum, of Denver, Colo., for the Company. Mr. Kelsey Norman, of Joplin, Mo., and Mr. John R. 0grain, of Chicago, Ill., for Local #24. Mr. Robert E. Seiler, of Joplin, Mo., for the Independent. Mr. Milton A. Kallis, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 20, 1941, Cigar Makers International Union, Local #24, affiliated with A. F. of L., herein called Local #24, filed with the Regional Director for the Seventeenth Region (Kansas. City, Missouri) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Cuban Cigar Company, Joplin, Missouri, herein called the Company, and request- ing 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 October 22, 1941, 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 Rela- tions 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. 37 N. L. R. B., No. 138 833 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 3, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, Local #24, and Tobacco Workers Association of Joplin, Missouri , herein called the Independent, a labor organization alleged to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on November 10, 1941, at Joplin, Missouri , before Paul Nachtman, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, Local #24, and the Independent 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 objections to the admission of evidence. 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 following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Cuban Cigar Company is a partnership consisting of Eva Levinson and Sam Levinson, of Denver, Colorado, and is engaged in the manu- facture and sale of cigars. It has its principal offices in Denver, Colorado, and its plant in Joplin, Missouri. Practically all materials which it uses are purchased outside the State of Missouri, and prac- tically all its finished products are sold and transported to places outside of the State of Missouri. In 1940 the Company sold approxi- mately $500,000 worth of merchandise and its business during 1941 has been substantially the same. The Company admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Cigar Makers International Union, Local #24, is a labor organiza- tion affiliated with the American Federation of Labor. It admits to membership employees of the Company. Tobacco Workers Association of Joplin, Missouri, is an unaffiliated labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or about September 1, 1941, the Company, upon request, refused to recognize Local #24 as the exclusive bargaining agent of em- CUBAN CIGAR COMPANY 835 ployees of the -Company. It gave as its reason an existing contract with the Independent. On January 18, 1941, the Company and the Independent entered into a contract which by its terms remains in full force and effect until and including December 31, 1941, and continues thereafter until 15 days after written notice of cancelation or of intention no longer to be bound by the terms thereof shall be served by one party upon the other. Since the contract has been in effect for approxi- mately one year and its definite term is about to expire, we find the contract is no bar to a present determination of representatives. Local #24 and the Independent each claims to represent a majority of the Company's employees for collective bargaining. -A Statement of the Regional Director introduced at the hearing shows that Local #24 and the Independent each represents a substantial number of employees in the unit hereinafter found to be appropriate .11 The Regional Director further- stated that the Independent handed him 138 cards dated November 6, 1940, authorizing the Independent to act for the signers as their exclusive agent for collective bargain- ing. Of these 'signatures, 137 appeared to be genuine and the names of 96 of the signers were on the pay roll of Septaember 13, 1941. We find that a question has arisen concerning 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 #24 and the Independent agree, and we find, that a'plant- wide unit 'embracing substantially all employees of the Company is appropriate for the purposes of bargaining. The two labor organiza- tions also agree, and we find, that office personnel; watchmen; sales- men; employees having authority to hire and discharge; Samuel J. ' The Company employs an average of 160 persons The statement of -the Regional Director dated September 30, 1941, shows that Local #24 piesented 85 cards, 47 of which were membership applications, and 38 authorizations as exclusive bargaining agent for 1 veal Of these 85 cards, 13 were dated between July 1, 1939, and October 6, 1939, 4 were dated between March 21, 1940, and September 30, 1940 , 9 were dated (luring March 1941 ; 5 between April 1, 1941, and July 31, 1941 , 14 duung August 1941, 37 were not dated , and 3 bear incomplete dates . Of these 85 cards, 71 appeared to bear genuine signatures , of which 61 signers were on the pay roll of 'September 13, 1941. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Herman, plant manager; Abe Kippur, box-factory manager; Harry Lemmerhart, machinist ; Billy Noel and Harry Hudson, assistant machinists, should be excluded from the appropriate unit. The Company took no position with regard to an appropriate unit. The two labor organizations disagree concerning the inclusion in or exclusion from the bargaining unit of six named employees. Local #24 desires to exclude the six, while the Independent would include them in the unit. Nichols. Arthur Nichols' primary duty is to maintain and repair production machines in the stripping department. When he is not busy doing this work, he brings stock down to the second floor, per- forms various other duties such as putting cases of binders in condi- tion and spraying them. The two labor organizations, as noted above, have agreed that three employees, classified as a machinist and assistant machinists should be excluded from the unit. They are machine repairmen.2 Nichols performs substantially the salve func- tions in the stripping department. We find that because Nichols does substantially the ' same work as the machinist and assistant machinists, whom the two unions have agreed to exclude, Nichols also should be excluded from the appropriate unit. Atkins. According to the testimony,of the manager of the Com- pany, Iva Atkins is the supervisor of the stripping department. In the course of her duties she shows employees in her department how to strip wrappers and binders and what mistakes they make. She also works on the machines. The existing contract excludes super- visory employees from the bargaining unit. We find that Atkins.is primarily a supervisory employee and shall therefore exclude her from the bargaining unit herein found appropriate. Boxy Haggart, Ruth Harmon, Mabel Sliouse, and Ernie Wilcoxen. The manager of the plant testified that two of these employees, Roxy Haggart and Ruth Harmon, "are in charge and in direct supervision over the hand made department" when he is not there. He also tes- tified that Ernie Wilcoxen's duty is to supervise the work in the base- ment and that Wilcoxen is in charge of the basement department: As to Mabel Shouse, the manager testified that she is in charge of the checking department, and other testimony discloses that employees of the plant consider her to be a supervlsor.3 The existing collective bar- gaining contract between the Company and the Independent excludes 2They ate Hai iv Lemmerhait, described as a machinist, 131lly Noel and Hairy Hudson, descubed as assistant machinists They isork only on the machines and do nothing else They pet foim the work of mechanics or machinist helpers a One witness stated, "I have always understood she was it floorlady, boss over the checkers, I believe it is " Another witness stated, "Mrs Spouse is our supervisor" in the packing department and that she teaches the new girls to pack she checks various kinds of iecolds and sees that the cigars are of the proper color and packed in the iight boxes. She inspects the work that is done in the packing departfnent CUBAN CIGAR COMPANY 837 from the bargaining unit foremen , supervisory employees, officials, and direct relatives of the owners. We find that these four employees are supervisory employees and shall exclude therm from the bargaining unit herein found appropriate. We find that all employees of the Company , excluding office per- sonnel, watchmen, salesmen, employees having authority to hire and discharge, Samuel J. Herman, Abe Kippur, Harry Lemmerhart, Billy Noel, Harry Hudson, Arthur Nichols, Iva Atkins, Roxy Haggart, Ruth Harmon, Ernie Wilcoxen , and Mabel Shouse, constitute a unit appropriate for the purposes of collective bargaining. We further find that such unit will insure to the employees of.the Company the full benefit of their rights to self-organization and to collective bargain- ing, and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representa. tion can best be resolved by an election by secret ballot. The two unions desire an election as soon as possible . Local #24 objects to an election held during the "Christmas holidays" because this might be a slack season and the employees might be going home or otherwise be away. Since our usual direction will permit an election at any time during the next thirty days, we are of the opinion that no special provision need be made because of the holiday season. We shall direct that the employees of the Company eligible to vote in the election shall be those ' within the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. Upon the basis of the foregoing findings of fact and 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 at Cuban Cigar Company, Joplin, Missouri, 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, excluding office personnel , watch- men, salesmen, employees having authority to hire and discharge, Samuel J. Herman, Abe Kippur, Harry Lemmerhart, Billy Noel, Harry Hudson, Arthur Nichols, Iva Atkins, Roxy Haggart, Ruth Harmon, Ernie Wilcoxen, and Mabel 'Shouse constitute a unit ap- propriate for the purposes of collective bargaining. 4,13257-42-v OL. 37--54 838 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, 49 Stat . 449, 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 bargain- ing with Cuban Cigar Company, Joplin, Missouri , 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 Seventeenth 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 the Company who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States , or temporarily laid off, but exclud- ing office personnel , watchmen, salesmen, employees having authority to hire and discharge, Samuel J. Herman, Abe Kippur, Harry Lem- merhart, Billy Noel , Harry Hudson, Arthur Nichols, Iva Atkins, Roxy Haggart, Ruth Harmon, Ernie Wilcoxen , and Mabel Shouse, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Cigar Makers International Union, Local #24, affiliated with A. F. of L., or by Tobacco Workers Association of Joplin , Missouri, for the purposes of collective bargaining, or by neither. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.