Burry Biscuit Corp.

National Labor Relations Board - Board Decisions

Mar 10, 1948

76 N.L.R.B. 640 (N.L.R.B. 1948)

In the Matter of BURRY BISCUIT CORPORATION, EMPLOYER and RESLEY
E. HIBSHMAN, PETITIONER and UNITED BAKERY, CONFECTIONERY
AND CULINARY SERVICE EMPLOYEES UNION, LOCAL 262, AFFILIATED
WITH UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE UNION,
CIO, UNION
Case No. 4.-RD-6.-Decided March 10, 1948
Mr. T. E. Griest, of Elizabeth, N. J., for the Employer.
Mr. Allen H. Krause, of Lebanon, Pa., for the Petitioner.
Rothbard, Harris and OxIeld, by Mr. Sidney Birnbawrn, of Newark,
N. J., for the Union.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition for decertification duly filed, hearing in this case
was held at Lebanon, Pennsylvania, on December 16, 1947, before
John H. Garver, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-man
panel consisting of the undersigned Board Members.*
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Burry Biscuit Corporation is a Delaware corporation engaged in
the manufacture of prepared flour mixes at Meyerstown, Pennsyl-
vania. The Employer annually uses raw materials valued at $500,000,
of which 70 percent, or approximately $350,000, represents shipments
to its Meyerstown plants from points outside the Commonwealth of
'Chairman Herzog and Members Murdock and Gray.
76 N. L. R. B., No. 98.
640
BURRY BISCUIT CORPORATION ' 641
Pennsylvania. The Employer annually manufactures finished prod-
ucts valued at approximately $850,000, of which 90 percent is shipped
to points outside the Commonwealth.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE PARTIES INVOLVED
The Petitioner 1 asserts that the Union is no longer the representa-
tive of the Employer's employees as defined in Section 9 (a) of
the Act.
The Union, a labor organization affiliated with the Congress of In-
dustrial Organizations, is the recognized representative of employees
of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On December 23, 1946, the Employer executed with the Union
an exclusive collective bargaining contract terminating on December
31, 1947. The contract contained a provision for automatic annual
renewal unless either party gave to the other written notice to the
contrary at least 30 days before the yearly expiration date. No such
notice was given in 1947. On November 7, 1947, the Petitioner filed
the instant petition requesting decertification of the Union.
- The Union contends that its contract is a bar to the proceeding
herein. We find no merit in this contention. As the instant petition
was filed on November 7, 1947, before the operative date of the auto-
matic renewal clause, we find, in accordance with well-established
principles of the Board, that the contract is not a bar to the proceed-
ing.',
The Union further asserts that, because this is a decertification pro-
ceeding, it should be permitted to introduce evidence attacking the
authenticity of the showing of interest made by the Petitioner in
support of the petition herein. We have heretofore held, in certifica-
tion cases, that the requirement of a showing of representative interest
is only an administrative device adopted to enable the Board to deter-
mine whether further proceedings are warranted, and is not subject
to objection at the hearing.3 Decertification petitions under Section
9 (c) (1) of the Act, like petitions for certification, raise questions of
representation for determination by the Board. We will accordingly
' The record does not disclose the relationship between the Petitioner and the Employer.
z
Matter of Snow & Nealley Co: 76 N L. R . B., 390; Matter of Drewrys Limited U S. A.
Inc., 74 N L R B 31, and cases cited therein.
3 Matter of 0. D. Jennings & Company, 68 N. L. R. B. 516; Matter of Mascot Stove Com-
pany, 75 N. L . R. B. 427; Matter of The Ohio Fuel Gas Company, 75 N. L. R. B. 975.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apply the same rule to the present decertification proceeding,4 and will
affirm the hearing officer's ruling herein refusing to admit evidence
relating to such showing.5
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, substantially in accord with the agreement of the parties,
that all employees in the Employer's Meyerstown plants, excluding
foremen, foreladies, superintendents, line supervisors, office, labora-
tory, and clerical workers, and all supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.e
DIRECTION OF ELECTION 7
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Burry Biscuit Corporation,
Meyerstown, Pennsylvania, an election by secret ballot shall be con-
ducted 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 Fourth Region, and subject to Sections
203.61 and 203.62 of National Labor Relations Board Rules and Regu-
lations-Series 5, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off, but excluding those employees
'See Report of Senate Labor Committee, No 105, 80th Cong , 1st Sess, pp 10, 25.
The Union also contended that it should be allowed to adduce testimonv w,th respect
to whether signatures in support of the petition were obtained by "fraud or duress or
intimidation or threats or other devious methods " Insofar as the Union may halve
sought thus to piesent evidence of unfair labor piactices , we also find such evidence inad-
missible under oui established practice of excluding evidence of unfair labor practices in
representation proceedings See Matter of Federal Shtipbuslding and Drydock Company,.
76 N L R B 413
6 This is essentially in accord iiith the unit provided for in the collective bargaining
conti act between the Employer and Union.
7 The fact that the Union has failed to comply with the registration and filing require-
ments of Section 9 (f), (g), and (li) of the amended Act does not preclude the Board from
directing an election on this decertification petition . Accordingly , we shall also place
the Union 's name on the ballot in the election directed hereinafter . Under our policy,
the Union will be certified if it wins the election , provided that at that time it is in com-
pliance with Section 9 ( f) and ( h) of the Act Absent such compliance , the Board will
only certify the arithmetical results of the election . See Matter of Ilarris Foundry d-
Machine Company, 76 N L R 13, 118
BURRY BISCUIT CORPORATION 643
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election, and also ex-
cluding employees on strike who are not entitled to reinstatement, to
determine whether or not they desire to be represented by United
Bakery, Confectionery and Cnlinary Service Employees Union, Local
262, affiliated with United Retail, Wholesale and Department Store
Union, CIO, for the purposes of'collective bargaining.
781902-48-vol. 76-42