Bishop & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1937

4 N.L.R.B. 514 (N.L.R.B. 1937)

In the Matter of BISHOP & COMPANY, INC., and UNITED CRACKER,
BAKERY, AND CONFECTIONERY WORKERS, LOCAL INDUSTRIAL UNION
No. 212
Case No. R-382.-Decided December 15, 1937
Confectionery and Candy Industry-Investigation of Representatives: con-
troversy concerning representation of employees : rival organizations ; refusal
by employer to bargain with either in absence of proof of majority representa-
tion-Unit Approprsatc for Collective Bargaining : production employees , exclud-
ing "rush" season employees and those covered by collective bargaining agree-
ment with a union representing employees in a separate unit ; insufficient
community of interest for collective bargaining as a unit between regular and
"rush" season employees ; election to be conducted among those on pay roll
of approximate last day of regular production-Election Ordered
Mr. David Persinger, for the Board.
Newlin & Ashburn, by Mr. C. J. Harrison, of Los Angeles, Cal.;
for the Company.
Mr. Eli Epstein, for the United.
Rosencrans d Emme, by Mr. Otto J. Emme, of Los Angeles, Cal.,
for the International.
Miss Ida Klaus, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On July 20, 1937, United Cracker, Bakery, and Confectionery
Workers, Local Industrial Union No. 212, herein called the United,
filed with the Regional Director for the Twenty-first Region (Los
Angeles, California) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
Bishop & Company, Inc., Los Angeles, California, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On September 22, 1937, the
United filed, in the same manner, an amended petition containing
more detailed statements in support of its original allegations. On
September 25, 1937, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of the Act and Article'
514
DECISIONS AND ORDERS 515
III, Section 3, of National Labor Relations Board Rules and Regu-
lations-Series 1, as amended, ordered an investigation and author-
ized the Regional Director to conduct it and to provide for an appro-
priate hearing upon due notice.
On October 19, 1937, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, upon the
United, upon Bakery & Confectionery Workers' International Union
of America, Local 37, herein called the International, a labor organ-
ization claiming to represent employees directly affected by the in-
vestigation, and upon the Central Labor Council of Los Angeles,
in which the International is represented. Pursuant to the notice,
a hearing was held on November 1, 1937, at Los Angeles, California,
before George W. Rochester, the Trial Examiner duly designated by
the Board. The Board, the Company, and the International were
represented by counsel. The United was represented by one of its
organizers. 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
At the commencement of the hearing, a stipulation was entered
into between counsel for the Board and counsel for the Company that
Bishop & Company, Inc., is engaged in interstate commerce.
In addition, we find the following :
The Company,, a California corporation and a wholly-owned sub-
sidiary of the National Biscuit Company whose principal plant and
offices are in New York, is engaged in the manufacture of confec-
tionery, chocolate, cocoa, and peanut butter. Most of its raw ma-
terials are derived from sources outside the State and purchased,
upon requisition, by the purchasing department of the National Bis-
cuit Company in New York; cocoa beans, from Africa and South
America; peanuts, from Georgia, Texas, Virginia, and North Caro-
lina ; corn syrup, from Illinois. About ten per cent of its finished
products are sold for shipment outside the State, principally, to
Arizona and Hawaii. Advertising policies are formulated by the
National Biscuit Company and monthly reports of production and
price changes are made by the Company to the National Biscuit
Company.
516 NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
United Cracker, Bakery, and Confectionery Workers, Local In-
dustrial Union No. 212, is a labor organization affiliated with the
Committee for Industrial Organization, admitting to its membership
all production employees of the Company, excluding teamsters,
drivers, delivery men, shipping room, maintenance, office, clerical,
and supervisory employees.
Bakery & Confectionery Workers' International Union of America,
Local 37, is a labor organization affiliated with the American Federa-
tion of Labor. The record is silent as to the classes of the Com-
pany's employees eligible for membership in this organization.
III. THE QUESTION CONCERNING REPRESENTATION
Prior to the Board's investigation, both the United and the Inter-
national attempted to bargain collectively with the Company, each
contending that it represented a majority of the production em-
ployees. The Company refused to bargain collectively with either of
them, stating that it had no knowledge that either represented a
majority of such employees. It refused to accept an offer of proof
of majority representation by the United, saying that that fact would
have to be ascertained by the National Labor Relations Board. At
the hearing, the United repeated its contention, but offered no sub-
stantiating proof, and the Company again refused to recognize the
United as the representative of its employees, in the absence of such
proof. The Company's present refusal to recognize either of these
unions as sole bargaining agent tends to create resentment and dissat-
isfaction among its employees who are members of the unions.
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
The United contends, and the International does not deny, that the
production employees, excluding teamsters, drivers, delivery men,
shipping room, maintenance, office, clerical, and supervisory em-
ployees, constitute the appropriate bargaining unit. Teamsters, de-
DECISIONS AND OItDEItS 517
livery men, drivers, and those employed in the shipping room are
covered by a written collective bargaining agreement between the
Company and the Bakery Drivers' Union of the - International
Brotherhood of Teamsters, affiliated with the American Federation
of Labor. The United does not consider the maintenance, office, and
clerical workers, nor the employees covered by the Bakery Drivers'
agreement, as production employees, and there is no objection on the
part of the International to their exclusion.
The testimony given at the hearing shows that the Company regu-
larly employs about 100 production employees and that during the
last quarter of the year, its peak production season, it takes on extra
people to handle its extraordinary business. These people are re-
garded by the Company as "extras" and "make shift" and are dis-
charged at the close of the rush season. About 25 per cent of the
extras have returned from year to year for rush season work. The
United urges that, since the extra people are not considered regular,
steady employees and do not, typically, return each year for seasonal
employment, the casualness of their relationship with the Company
should exclude them from any election which the Board might order
in connection with the present investigation. It desires, therefore,
1 hat the election be conducted among those in the appropriate unit
who were in the employ of the Company on September 22, 1937, the
date of the United's amended petition, and the date representing the
approximate end of the normal production season. We conclude that
the difference in the employment relationship of the extra employees
and of those employed by the Company throughout the year is such
that there is not a sufficient community of interest between these
groups for collective bargaining as a unit.
We therefore find that the regular production- employees of the
Company, excluding those hired for the October through December
season, teamsters, drivers, delivery men, shipping room, maintenance,
office, clerical, and supervisory employees, constitute a unit appro-
priate 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 otherwise
effectuate the policies of the Act}.
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 Bishop & Company, Inc., Los Angeles, Cali-
fornia, -within the meaning of Section 9 (c) and Section 2 (6) and
-(7) of the National Labor Relations Act.
518 NATIONAL LABOR RELATIONS BOARD
2. The regular production employees of the Company, excluding
those hired for the October through December season, teamsters,
drivers, delivery men, shipping room, maintenance, office, clerical, and
supervisory employees, constitute a unit 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 Relations Act,
49 Stat. 449, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
hereby
DIRECTED that, as part of the investigation ordered to ascertain
representatives for the purposes of collective bargaining with Bishop
& Company, Inc., Los Angeles, California, an election by secret ballot
shall be conducted within a period of ten (10) days from the date of
this Direction of Election, under the direction and supervision of th%
Regional Director for the Twenty-first Region, acting in this matter
as the agent of the National Labor Relations Board and subject to
Article III, Section 9, of said Rules and Regulations, among the pro-
duction employees of said company who were employed by it on Sep-
tember 22, 1937, excluding teamsters, drivers, delivery men, shipping
room, maintenance, office, clerical, and supervisory employees, and
excluding also those employees who have since quit or been discharged
for cause, to determine whether or not they desire to be represented,
for the purposes of collective bargaining, by United Cracker, Bakery,
and Confectionery Workers, Local Industrial Union No. 212, affiliated
with the Committee for Industrial Organization, or by Bakery & Con-
fectionery Workers' International Union of America, Local 37, or its
successor, affiliated with the American Federation of Labor, or by
neither. -
[SAME TITLE
AMENDMENT TO DIRECTION OF ELECTION
December 23, 1937
On December 15, 1937, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election, in
the above-entitled proceeding, the election to be held within ten (10)
days from the date of the Direction, under the supervision of the
Regional Director for the Twenty-first Region, (Los Angeles,-
California).
DECISIONS AND ORDERS 519
United Cracker, Bakery and Confectionery Workers, Local Indus-
trial Union No. 212, the petitioner herein, with the agreement of
Bakery and Confectionery Workers' International Union of Amer-
ica, Local 37, intervenor herein, has requested the Board to defer the
election until some time during the first week of January 1938, when
the lay-off of the seasonal workers will have been perfected, thereby
facilitating the conduct of the election among the employees in the
appropriate unit.
The Board hereby amends its Direction of Election by striking
out the words "within a period of ten (10) days from the date of
this Direction of Election", and substituting therefor the words, "on
or before January 8, 1938."
Mn . DONALD WAKEFIELD SMITH took no part in the consideration
of the above Amendment to Direction of Election.
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