A. Goodman & Son

National Labor Relations Board - Board Decisions

Aug 31, 1939

14 N.L.R.B. 1213 (N.L.R.B. 1939)

In the:•Matter of A. GOornrAN & SON and BAKERY & CONFECTIONERY
WORKERS INTERNATIONAL UNION1 LOCAL 94, MATZOTH & NOODLE
WORKERS, A. F. L.
Case No. R-1 /4L.Decided August 31, 1939
Matzoth and Noodle Manufacturing Industry/-Investigation of. Representa-
tives: controversy concerning representation of employees: company refused
to recognize either of two competing unions as exclusive representatives of em-
ployees ; closed-shop contract covering matzoth workers expiring shortly no
bar to investigation-Unit Appropriate for Collective Bargaining: all em-
ployees including seasonal employees , but excluding drivers, salesmen , super-
visors, and clerical employees-Election Ordered
Mr. Daniel Baker, for the Board.
Drechsler & Leff, by Mr. Mortimer Horowitz, of New York City-
-for-'the Company.
Mr. Heyman E. Cooper, of -New York City, for Local 94.
Mr. Francis D. Saitta, of New York City, for the Association.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Oli•March 24, 1939, Bakery & Confectionery Workers. International
Union, Local 94, Matzoth & Noodle Workers, A. F. L., herein called
Local 94, filed with the Regional Director for the Second Region
(New York City) a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of A.
Goodman & Sons, Inc.,' New York City, 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 May 25, 1939, the National
Labor Relations Board, herein called the Board, acting pursuant
to Section 9 (c) of the Act and Article III, Section 3, of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered an investigation and authorized the Regional Di-
3 Incorrectly designated A. Goodman & Son in the formal papers.
14 N. L. R. B., No. 102.
1213
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rector to conduct it and to provide for an appropriate hearing upon
due notice.
On June 26, 1939, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, upon Local
94, and upon Macaroni Employees' Association, Inc., -herein called
the Association, a labor organization claiming to represent em-
ployees directly affected by the investigation. Pursuant to the no-
tice, a. hearing was held on July 17 and 18, 1939, at New York City,
before Charles S. Lobinger, the Trial Examiner duly designated by
the Board. The Board, the Company, Local 94, and the Associa-
tion were represented by counsel., and all - participated in the hearing.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, 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 Ex-
aminer 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
I. THE BUSINESS OF THE COMPANY
The Company is a New York corporation engaged in the business
of manufacturing, selling, and distributing matzoths, noodles, and
macaroni products. Approximately 85 per cent of the raw materials
used by it are shipped to it from points outside the State, and 20 per
cent of the manufactured products are shipped to points outside
the State of. New York. The Company employs approximately 100
employees and does an annual business of approximately $750,000.
The Company admits the jurisdiction of the Board. .
II. THE ORGANIZATIONS INVOLVED
Bakery & Confectionery Workers International Union, Local 94,.
Matzoth & Noodle Workers, is a labor organization affiliated with the
American Federation of Labor. It admits to membership all em-
ployees of the Company, excluding salesmen, drivers, and office and
supervisory employees.
Macaroni Employees' Association, Inc., is an unaffiliated labor
orgaaiizaition admitting to its membership all employees of the;
Company engaged in the production of macaroni and noodles, ex-
cluding supervisory and office employees.
A. GOODMAN & SON
III. THE QUESTION CONCERNING REPRESENTATION
1215
On March . 2, 1936, the Company and Local 94 entered into a
closed -shop contract governing only the matzoth workers of the
Company, the contractto remain in full force and effect until Octo-
ber 1, 1939.
In April or May 1939 , the Association, claiming to represent a
majority of the macaroni and noodle workers in the plant , requested
the Company to deal with it as exclusive representative of these
employees . The Company refused this request and stated that it
would not bargain with the Association or Local 94 unless and until
one or the other was certified by the Board as the exclusive repre-
sentative of its employees.
Under the circumstances it is clear that the contract does , not
preclude the Board from investigating or certifying a bargaining
representative for the purpose of negotiating a new agreement for
the period following October 1, 1939, if such is desired.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 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 94 urges that all employees of the Company, including the
seasonal workers, but excluding the drivers, salesmen, supervisors,
and clerical employees, constitute a unit appropriate for the pur-
poses of collective bargaining. The Association contends that all
the employees of the Company employed in the macaroni and noodle
plant, including the mechanics, elevator men, and packers, but ex-
cluding the salesmen, drivers, and clerical and supervisory em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining. The Company takes a . neutral position as to what
should constitute the appropriate unit or units.
It is important to note that the Association claims all the em-
ployees in the macaroni and noodle plant, the unskilled as well _ as
2 Cf. Matter of Heldman-Schild-Lasser, Inc. and Cincinnati Joint Board of the Amalga-
snated,Clothing.Workers of America ( C. I. 0.), 11 N. L. R. B. 1289.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the skilled. Its assertion is not based on a claim that the employees
in the noodle and macaroni plant constitute a distinct skilled craft.
The Company's production is carried on in two adjoining build-
ings. The matzoth department is housed in one and the macaroni and
noodle department in the other. The first and second -flocirs,,off-the-
two buildings are joined together by connecting passageways. Be-
cause of the required rabbinical supervision in the matzoth, plant
and for certain other administrative purposes, the Company has
maintained a distinction between the two departments. At the hear-
ing, however, the Company took the position that the plant as a
whole constituted a single business unit, and was operated as, such..
The evidence amply supports this position. The offices are the same
for both departments, and Erich Cohn, president of 'the Company,
spends approximately 4 hours daily in both plants overseeing
production.
It is true that the types of work performed in the Company's two
departments are somewhat different. Special training is required
for specific operations in both departments. On the other hand,
there is a considerable amount of interchanging between the two
departments. During the 4-month busy season in the matzoth,plant
which precedes Passover, many of the employees of the macaroni and
noodle plant are shifted to positions in the matzoth plant. Follow-
ing Passover, many of the regular matzoth workers are transferred
to the macaroni and noodle plant where they perform various duties
connected with the packing and shipping of macaroni and noodles.
The evidence shows that 16 of the 23 regular matzoth employees
work approximately 4 months annually in the macaroni and noodle
plant.
Upon all of the evidence, we conclude that the manner in which the
Company operates the macaroni and noodle plant does not require
that the plant be regarded as a separate unit for the purposes of col-
lective bargaining. The, admitted differences between the two plants
are not cogent, in view of all the other circumstances brought out
at the hearing.'
The Company employs approximately 25 seasonal workers in its
matzoth and macaroni and noodle plants. The same seasonal em-
ployees are recalled year after year by the Company and they work
approximately 4 months annually. Under the circumstances, we are
of the opinion that they should be included in the unit.
We find that all the employees of the Company, including the sea-
sonal employees, but excluding drivers, salesmen, supervisors, and
clerical employees, constitute a unit appropriate for the purposes
$See ! Matter of Fried, Ostermann . Co. and Local 80, International Glove Workers of
America, A. F. L., 7 N. L. R. B. 1075.
A. GOODMAN & SON 1217
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
Although Local 94 and the Association claimed substantial mem-
bership among the employees of the Company, no evidence was in-
troduced at the hearing upon the basis of which we could make a
finding that a majority of the employees in the unit found to be
appropriate have selected one union rather than the other. We
therefore find that an election by secret ballot is necessary to resolve
the question concerning representation. Since we have not upheld
the contentions of the Association as to the appropriate unit, we will
allow the Association, if it desires, to withdraw its name from the
ballot by giving such notice to the Regional Director within five (5)
clays from the date of the Direction of Election.
The pay roll for the period ending April 24, 1939, was introduced
in evidence at the hearing. There were no objections to the use of
this pay roll as a basis for determining eligibility to participate in
an election in the event one was directed. However; in view ,of the
lapse of time, we will direct that the employees eligible to vote in
the election will be those employees who were .employed during the
pay-roll period immediately preceding the date of this Direction of
Election, including the seasonal employees, employees who did not
work during such pay-roll period because they were ill or on vaca-
tion, and employees who were then or have since been laid off only
temporarily, but excluding those who have since quit or been dis=
charged for cause.
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 A. Goodman & Sons, Inc., New York City,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
2. All the employees of the Company, including the seasonal em-
ployees, but excluding drivers, salesmen, supervisors, and clerical
employees, constitute a unit appropriate for the purposes of collec-
tive bargaining, within the meaning of Section 9 (b) of the National
Labor Relations Act.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor.Relattons 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 A. Goodman & Sons, Inc., New York City, an
election by secret ballot shall be conducted within fifteen (15) days
from the date of'this Direction, under the direction and supervision
of the Regional Director for the Second Region, acting in this mat-
ter as agent for the National Labor Relations Board and subject to
Article III, Section 9, of said Rules and Regulations, among all the
employees of the Company, who were employed during the pay-roll
period immediately preceding the date of this Direction, including
the seasonal employees, employees who did not work during such pay-
roll period., because.. they were ill or on vacation, and :employees who
were then or have- since 'been laid off only temporarily, but excluding
drivers, salesmen,' supervisors, clerical employees, and employees who
have since quit or been discharged for cause, to determine whether
they desire to be represented by Bakery & Confectionery Workers
International Union, Local 94, Matzoth & Noodle Workers, affiliated
with the American Federation of Labor, or by Macaroni Employees'
Association, Inc., for the purposes of collective bargaining, or by
neither.
MR. EDWIN S: SMITH took no part in the consideration of the above
Decision and Direction of Election.