American Caramel Co.

National Labor Relations Board - Board Decisions

Jan 21, 1947

72 N.L.R.B. 232 (N.L.R.B. 1947)

In the Matter of AMERICAN CARAMEL COMPANY, Enri>LoYER and FooD,
TOBACCO, AGRICULTURAL AND ALLIED WORKERS UNION OF AMERICA,
C. I. 0., PETITIONER
Case No. 4-R-2265-Decided January 21, 1947
Mr. Julius Yablok, of New York City , for the Employer.
Mr. AS`aul C. Waldbaum , of Philadelphia , Pa., for the Petitioner.
Mr. William Shuman , of Lancaster, Pa., for the Intervenor.
Cllr. Lewis H. Ulman , of counsel to the Board.
DECISION
AND
DIRECTION
On August 29, 1946, pursuant to a Stipulation for Certification
Upon Consent Election, executed on August 20, 1946, by the Peti-
tioner, the Committee, herein called the Intervenor, and the Employer,
an election by secret ballot was conducted under the direction and
supervision of the Regional Director for the Fourth Region among
the employees in the unit agreed upon by the parties, to determine
whether they desired to be represented by the Petitioner, by the Inter-
venor, or by neither for the purposes of collective bargaining. The
stipulation provided in part, "that all employees classified as work-
ing foremen or working foreladies or assistant working forelady, shall
be voted on Board challenge, and the inclusion or exclusion of these
classifications in the appropriate bargaining unit shall be determined
by the Board after hearing in the event the petitioner wins the
election."
Upon completion of the election, the Regional Director issued and
duly served upon the parties a Tally of Ballots. The Tally shows
that, of the approximately 126 eligible voters, 105 valid votes were cast,
56 for the Petitioner and 49 for the Intervenor. Ten votes were
challenged by the Board pursuant to the stipulation mentioned above,
and I vote was challenged by the Petitioner. Inasmuch as the chal-
lenged ballots could affect the outcome of the election, the Board di-
rected a hearing thereon which was held at Lancaster, Pennsylvania,
on October 29, 1946, before John H. Garver, hearing officer. The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
72 N. L R B., No 44.
232
AMERICAN CARAMEL COMPANY 233
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
American Caramel Company is a Pennsylvania corporation en-
gaged in manufacturing candy at its sole plant at Lancaster, Penn-
sylvania. Annually, the Employer purchases raw materials valued
at more than $50,000, of which more than 50 percent represents ship-
ments fronn points outside the State of Pennsylvania. The Employer's
annual sales exceed $75,000 in value, of which more than 50 percent
represents shipments to points outside the State. -
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. TIIE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
The Intervenor is an unaffiliated labor organization claiming to
represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. TILE APPROPRIATE UNIT
The parties agree that the appropriate unit consists of all produc-
tion and maintenance employees, including the firemen-watchmen but
excluding office clerical employees, the forelady of the chocolate de-
partment, executives, and all other supervisory employees with au-
thority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action. The parties disagree, however, on the 11 challenged voters
whoin the Employer and the Intervenor would include within the
unit, and whom the Petitioner would exclude as supervisors. As
noted above, the results of the election may be affected by the chal-
lenged ballots. Accordingly, we shall consider the challenges :
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Victor Bartholomew : The Petitioner alleges that Victor Bartholo-
mew, a diesel engineer who has been employed for 7 years in the plant's
engine room, is a supervisory employee. There are seven employees
in the engine room, one of whom, the break-down mechanic, is paid
at a higher hourly rate than Bartholomew. Another is taking in-job
training under the Servicemen's Readjustment Act of 1944,1 and the
remaining four fire the boilers. The Employer's purchasing officer
exercises direct supervision over the engine room, and while Bartholo-
mew once hired a new employee when the purchasing officer was on
vacation, and from time to time instructs the firemen, we are not per-
suaded, on the record in this case, that he is a supervisory employee
within our usual definition of that term . We shall , therefore, over-
rule the challenge and direct that the ballot of Victor Bartholomew
be opened and counted.
Nellie Mowery: The Employer's chocolate department consists of
approximately 50 employees under the supervision of a forelady whom
all the parties have agreed to exclude from the unit. Nellie Mowery
is employed in this department as a sample wrapper , but the majority
of her time is spent in instructing new employees. The Petitioner
contends that she exercises supervisory authority because of her duties
as an instructress and because she occasionally assists the forelady in
preparing a work tally at the end of the day. However, there is
another female employee within the department who receives a higher
hourly rate than Mowery, and the Petitioner did not contradict the
direct testimony of the Employer's factory superintendent that
Mowery has no authority to hire or discharge employees, or toinake
any effective recommendation concerning their status. The record,
therefore, does not, in our opinion, support the Petitioner's position.
Accordingly, we shall overrule the challenge and direct that the ballot
of Nellie Mowery be opened and counted.
Charles Lind, Catherine Gerstly, Rachel Merkt, Joseph Bryson,
Walter Bolbach, James Ferguson,Jr.,Florenz Rehm, Frank; Tronamer,
and Fred Aumont: The remainder of the challenged voters are all
experienced employees who, for the most part, have been employed at
the plant for a number of years. They work separately or as the chief
cook or chief technician of a small department and are all under the
direct supervision of the factory superintendent or the general fore-
man. While they are generally paid a higher hourly rate than other
employees in the same department , the factory superintendent 's testi-
mony reveals that their higher pay is due to their individual skills and
long service with the Employer. He also testified without contradic-
tion that these employees, like Nellie Mowery, have no authority to
1 5 8 Stat 284 , 38 U S C 1940 ed, Su) V, Sec 693, et seq
AMERICAN CARAMEL COMPANY 235
hire or discharge fellow employees , or to make effective recommenda-
tions concerning their status . We are of the opinion, therefore, that
they are merely more experienced workers who function as leaders
in their respective departments , and that their relationship to the
other workers is not, as the Petitioner contends , one of supervisor to
subordinate . Accordingly , we shall overrule the challenges and direct
that the votes of Charles Lind, Catherine Gerstly, Rachel Merkt,
Joseph Bryson , Walter Bolbach, James Ferguson, Jr., Florenz Rehm,
Frank Trommer , and Fred Aumont be opened and counted.
DIRECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with American Caramel Company,
Lancaster, Pennsylvania, the Regional Director for the Fourth Region,
shall, pursuant to Section 203.55 of National Labor Relations Board
Rules and Regulations-Series 4, within ten (10) days from the date
of this Direction, open and count the ballots of Victor Bartholomew,
Nellie Mowery, Charles Lind, Catherine Gerstly, Rachel Merkt,
Joseph Bryson, Walter Bolbach, James Ferguson, Jr., Florenz Rehm,
Frank Trommer, and Fred Aumont, and thereafter prepare and cause
to be served upon the parties a Supplemental Tally of Ballots, includ-
ing therein the count of said challenged ballots.