Cuban Cigar Co.

National Labor Relations Board - Board Decisions

Dec 22, 1941

37 N.L.R.B. 833 (N.L.R.B. 1941)

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.