Dorset Foods Ltd.

National Labor Relations Board - Board Decisions

Apr 16, 1942

40 N.L.R.B. 609 (N.L.R.B. 1942)

In the Matter of DORSET FOODS LTD. and WHOLESALE AND WAREHOUSE
WORKERS UNION LOCAL 65, C. I. O.
In the Matter of DORSET Foods, LTD. and UNITED WHOLESALE & WARE-
HOUSE EMPLOYEES UNION, LOCAL 65, C. I. O. and PICKLE WORKERS,
CONDIMENT & FOOD PACKERS UNION, AFFILIATED WITH C. T. L. C. ,OF
A. F. OF L. AND U. H. T., LOCAL 124
Cases Nos. R-3635 and R-3636, respectively.Deeided,April 16, 1942.
Jurisdiction : food canning industry.
Investigation and Certification of Representatives : existence of question' refusal
of Company to accord any union recognition until it is certified by the Board;
election necessary.
Unit Appropriate for Collective Bargaining : all employees, including office and
maintenance employees, but excluding supervisory and sales employees
Mr. Sidney Reitman, for the Board.
Mr. Richard M. Mon fried, of New York City, for the Company.
Leider, Vitt c6 Cammer, by Mr. Harold I. Cammer, of New York
City, for the C. I. O.
Mr. Milton, Friedman, of New York City, for the A. F. of L.
Mr. Milton A. Kallis, of counsel to the Board.
DECISION
AND'
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On February 6, 1942, Wholesale & Warehouse Workers Union,
Local 65, affiliated with the Congress of Industrial Organizations,
herein called the C. I. 0., filed with the Regional Director for the
Second Region (New York City) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Dorset Foods, Ltd., New York City, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On March 3, 1942,
Pickle Workers, Condiment & Food Packers Union, affiliated with
C. T. L. C. of A. F. of L. and U. H. T., Local 124, herein called the
A. F. of L., filed with said Regional Director a petition also alleging
40 N L R B, No 109.
4,55771-42-vol 40-89 609
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a question had arisen concerning the representation of employees
of the Company and requesting an investigation and certification as
aforesaid. On March 10, 1942, 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 Relations Board Rules
and Regulations-Series 2, as amended, entered an order consolidat-
ing these cases and directing an investigation and authorizing the
Regional Director to conduct it and to provide for an appropriate'
hearing upon due notice.
On March 13, 1942, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, the C. I. 0.,
and _the A. F. of L. Pursuant to notice, a hearing was held on
March 17, 1942, at New York City, before Peter F. Ward, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,,
the Company, the C. I. 0., and the A. F. of L. appeared by counsel
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing 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. The Company
filed a brief on March 30, 1942, which the Board has duly considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Dorset Foods, Ltd., is a New York corporation engaged in the
canning, sale, and distribution of foods and related products at New
York City. During the last 6 months of 1941 it purchased more
than $80,000 worth of materials, and approximately 90 percent
thereof by value was shipped to the Company's place of business
from points outside the State of New York. During the same period
the Company sold finished products worth more than $125,000 and
approximately 90 percent thereof was sold and distributed to points
outside the State of New" York. The Company admits that it is
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Wholesale & Warehouse Workers Union, Local 65, is a labor organi-
zation affiliated with the Congress of Industrial Organizations.
DORSET FOODS, LTD. 611
Pickle Workers, Condiment & Food Packers Union, affiliated with
C. T. L. C. of A. F. of L. and U. H. T., Local 124, is a labor organiza-
tion affiliated with the American Federation of Labor.
Both organizations admit to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about December 28, 1941, the A. F. of L. requested the
Company to recognize it as the exclusive bargaining agent of the
employees of the Company, and on February 7, 1942, the C. I. O.
made a similar request. The Company refused to recognize any
union unless and until it is certified by the Board.
The C. 1. 0. and the A. F. of L. each represents a substantial number
of employees in the unit hereinafter found to be appropriate.'.
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
£he C. I. O. requests a. unit for all employees of the Company,
including office and maintenance employees, but excluding supervisory
and sales employees. The A. F. of L. contends that the business of the
Company is divided into five departments, and that the employees
of each department constitute an appropriate bargaining unit. They
are the kitchen, boning and cleaning, canning and packing, and ship-
ping departments, and the office.2 The Company takes no position
' A statement of the Acting Regional Director, dated March 17, 1942 , and introduced in
evidence , shows that the C I 0 submitted 85 application-for-membership cards, 70 of which
were dated between January 23 and 31, 1942 , and 15 between February 1 and 5, 1942
Of these cards , 84 bear signatures which appear to be genuine and original , 78 of which
are names of persons who were on the , Comp'iny's pay roll of Februaiy 14, 1942 The
parties stipulated that the A F. of L has application blanks from 30 named employees. The
record shows 'that for the week ended February 14, 1942 , 25 of the 30 named employees
were on the pay ioll The Company employs approximately 8S persons in the unit here-
inafter fcund appropriate
'In its petition the A. F of L describes the departments as follows . ( 1) 1,itrh-n, com-
posed of t',,ose who ha\e to do with the cooking of the chickens and those who brnig the
cooked chicken from the kitchen to the tables for boning ; ( 2) boning and cleaning depart-
ment, composed of those who strip the meat of the cooked chicken from the bone and frame ;
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to the appropriate unit, although it agreed with the
C. I. O. on February 2, 1942, on a unit of all employees, except
supervisors.
The physical plant occupies the sixth and eleventh floors of a build-
ing in New York City. On these floors the cooking, boning, proc-
essing, canning, sterilizing, labeling, and shipping operations take
place. ' Frozen chickens are received on the eleventh floor and are
thawed, cooked, boned, and canned. After the cans are sealed and
sterilized they are sent to the sixth floor where they are labeled and
placed in shipping cartons, which are then wired, stenciled, and either
shipped or stored.
All these operations take place in a single room on the eleventh
floor and a single room on the sixth floor. Some employees assigned
to particular departments or to particular tasks are required to go to
other departments or do other tasks in the course of their work.
There are no department heads, and all the hiring, discharging, and
issuing of orders is done by either the president of the Company or
its production manager.3 The Company operates one shift, and about
84 percent of the employees are paid on an hourly basis, the range of
the rates of pay in all the departments being substantially the same.
The record indicates that, with the exception of the office employees,
the operations of each class of employees at the plant are coordinated
with and dependent upon the operations of each other class, so that
the employees constitute a functionally unified group.
Under all the circumstances of the case, we find that all employees,
including office 4 and maintenance employees, but excluding super-
visory and sales employees, constitute a unit appropriate 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 will effectuate.
the policies of the Act.
VI. THE DE7TRMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. Al-
though the C. I. O. requested that the Board select a pay roll prior
to February 16, 1942, and the Company requested the pay roll closest
to the date on which the election is held, the record discloses no
(3) canning department , composed of those who place the boned meat of the chicken into
cans , place soup into the cans, process, weigh , label, and close the cans ; ( 4) packmq and
shtppinq department, composed of those who pack and ship the finished pieduct, and
(5) office, composed of those who work in the office
3 The only other employee exercising supervisory powers is the chef who is in charge
of the employees engaged in performing duties in the kitchen
4 As shown above , both unions have organized the office employees along with the others
DORSET - FOODS, ItT'D. 613
reason for not using the usual pay roll immediately preceding the
date of the Direction of Election .5 We' shall therefore direct that
the employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction
herein, subject to the limitations and additions set forth in the Direc-
tion, shall be eligible to vote. - .
Upon the basis'of the foregoing 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 Dorset Foods, Ltd., New York City 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 , including office and maintenance
employees , but excluding supervisory and sales 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 2, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Dorset Foods, Ltd., New York City, 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 super-
vision of the Regional Director for the Second 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
office and maintenance employees and 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
s The C I 0 called a strike which lasted from February 16 to March 2, 1942 Diring
this period several new employees were hired , some of whom were retained at the conclu-
sion of the strike when some of the strikers failed to return There is no charge that
those striking employees who desired to return to work were denied reinstatement.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
temporarily laid off, but excluding supervisory and sales employees
and employees who have since quit or been discharged for cause, to
determine whether they desire to be represented by Wholesale & Ware-
house Workers Union, Local 65, affiliated with the Congress of Indus-
trial Organizations, or by Pickle Workers, Condiment & Food Packers
Union, affiliated with C. T. L. C. of A. F. of L. and U. H. T.,
Local 124, for the purposes of collective bargaining, or by neither.