Hawley & Hoops

National Labor Relations Board - Board Decisions

Mar 27, 1947

72 N.L.R.B. 1431 (N.L.R.B. 1947)

In the Matter of HERMAN L. Hoops, HELEN C. ENGEL AND ELIZABETH
H. MOOYER, D/B/A HAWLEY R' Hoops, EMPLOYER and UNITED CANDY
AND CONFECTIONERY EMPLOYEES UNION, LOCAL No. 50, C. I. 0.,
PETITIONER
Case No. 2-R-7046.-Decided March 07, 1947
Messrs. Harry G. Liese and Herman L. Hoops, of New York City,
for the Employer.
Perlmutter di Reich, by Mr. Leon Reich, and Mr. Frank Scida, of
New York City, for the Petitioner.
Bvitenkant cC Cohen, by Mr. Arnold Cohen, of New York City, for
the Intervenor.
Mr. John J. Gallione, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition and an amended petition duly filed, hearing in this
case was held at New York City, on January 23, 1947, before James C.
Paradise, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Herman L. Hoops, Helen C. Engel, and Elizabeth H. Mooyer, doing
business under the firm name of Hawley R Hoops, are copartners en-
gaged in the manufacture and sale of candy at New York City. Dur-
ing the past year, the Employer purchased raw materials, consisting
of sugar, gum, and syrup, approximately 80 percent of which was
shipped to it from points outside the State of New York. During the
same period, the Employer's sales exceeded in value $500,000, of which
approximately 90 percent was shipped to points outside the State of
New York.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
12 N. L. R. B, No 262.
1431
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT. TIIE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
Candy & Confectionery Workers Union, Local 452, herein called In-
tervenor, is a labor organization affiliated with the American Federa-
tion of. Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On October 28, 1946, the Petitioner notified the Employer tllat it
represented a majority of employees of the Employer and requested
recognition as their collective bargaining representative. Thereupon,
the Employer advised the Petitioner that it would not recognize any
union without Board certification. On October 31, 1946, the Petitioner
filed its petition,and the Employer received notice of its filing on No-
vember 6. Thereafter, on November 7, the Intervenor submitted evi-
dence indicating to the Employer that it represented a majority of the
employees, and the Employer agreed to recognize the Intervenor as the
collective bargaining representative, notwithstanding the Employer's
prior notice of the Petitioner's claim and the filing of its petition.
Contract negotiations were then initiated and continued until Decem-
ber 6 at which time a contract was executed by the Employer and the
Intervenor. The Intervenor contends that this contract is a bar to a
present determination of representatives. The Employer takes no
position.
Since the Petitioner had notified the Employer of its claim of major-
ity representation and had filed its petition prior to the execution of
the contract between the Employer and the Intervenor, that contract
cannot constitute a bar.' Accordingly, we find that there is no bar to
a present determination of representatives.
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. THE APPROPRIATE UNIT
We find, in accordance with the agreement of the parties,' that all
the employees of the Employer, excluding office clerical, sales, non-
I A petition filed before the execution of a collective bargaining contract prevents the
contract from operating as a bar Matter of Fifth Avenue Shoe Corporation, 69 N. L. R. B.
400; Matter of General Electric X-Ray Corporation , 67 N. L. R. B 997; Matter of Olin
Industries , Inc, 67 N. L R B 1043
2 It was agreed that working foremen, watchman , freight elevator operators, and a lab-
oratory employee should be included in the unit. It was also agreed that working foremen
HAWLEY & HOOPS 1433
working foremen, and all other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, consti-
tute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION 3
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Herman L. Hoops, Helen C.
Engel and Elizabeth H. Mooyer, d/b/a Hawley & Hoops, 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 supervision of the Regional Director for the
Second Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Sections 203.55 and 203.56, of
National Labor :Relations Board Rules and Regulations-Series 4,
among the emloyees 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, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date
of the election, to determine whether they,desire to be represented
by United Candy and Confectionery Employees Union, Local No.
50, C. I. 0., or by Candy & Confectionery Workers Union, Local No.
452, A. F. L., for the purposes of collective bargaining, or by neither.
Mr. Joxx M. HousTox took no part in the consideration of the
above Decision and Direction of Election.
have no supervisory authority and that the only supervisory employees are one foreman,
who is in charge of manufacturing , the forewoman, the chief engineer , the shipping clerk,
the plant superintendent, and the chief of accounts and pay roll.
3 Any participant in the election herein may , upon its prompt request to , and approval
thereof by , the Regional Director , have its name removed from the ballot.