Joe Lowe Corporation

National Labor Relations Board - Board Decisions

Jul 18, 1939

13 N.L.R.B. 672 (N.L.R.B. 1939)

In the Matter of JOE LowE CORPORATION and INDEPENDENT UNION OF
CONFECTIONERY WORKERS, LOCAL 1
Case No. R-1,331.-Decided July 18,1939
Bakery, Confectionery, and Ice Cream supplies Manufacturing Indust? y-In-
tcstigation of Representatives: controversy concerning representation of em-
ployees: controversy concerning appropriate unit; rival organization-Contract:
executed with knowledge of petition pending before Board no bar to investigation-
Unit Appropriate for Collective Bargaining: production and maintenance em-
ployees, exclusive of supervisory and clerical employees, chemists, laboratory
workers, and part-time employees-Representatives: eligibility to participate in
choice: employees currently on pay roll; laid-off and striking employees because
of likelihood of reinstatement-Election Ordered
Mr. Martin I. Rose and Mrs. H. D. Shea, for the Board.
Mr. Daniel G. Albert, of Brooklyn, N. Y., and Mr. Harvey C. Price,
of New York City, for the Company.
Boudin, Cohn and Glickstein, by Mr. Victor Rabinowitz, of New
York City, for the Independent.
Mr. Joseph J. Feld, of New York City, for the Teamsters._
Miss Anne E. Freeling, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 6, 1939, Independent Union of Confectionery Workers,
Local 1, herein called the Independent, 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 employees of Joe Lowe Corporation,' herein called the Company, at
its New York City plant, and requesting an investigation and certifi-
cation of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On February
8, 1939, 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
' The Company was mcoriectly designated in the petition as Joe Lowe Corp. An amend-
ment was allowed at the hearing correcting the name to Joe Lowe Corporation
13 N. L. R. B., No. 76.
672
JOE LOWE CORPORATION 673
1, as amended, ordered an investigation and directed the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice.
On February 17, 1939, the Regional Director issued a notice of
hearing, a copy of which was duly served upon the Company, upon
the Independent, and upon Local 138, International Brotherhood of
Teamsters, Chauffeurs, Stablemen and Helpers, American Federation
of Labor,_ herein called the Teamsters, a labor organization claiming
to represent employees directly affected by the investigation. Pur-
suant to an amended notice, a hearing was held from March 20 to
March 30, 1939, at New York City, before Mapes Davidson, the Trial
Examiner duly designated by the Board. The Board, the Company,
the Independent, and the Teamsters 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 objec-
tions 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.
Subsequent to the hearing, the Company, the Independent, and
the Teamsters filed memoranda, to which we have given due
consideration.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY 3
The Company is a Delaware corporation engaged in the manu-
facture, sale, and distribution of bakery, confectionery, and ice-cream
manufacturers' supplies, including extracts, milk powders, baking
powder, pie fillings, doughnut flour, and related products. The prin-
cipal office and place of business of the Company is located at New
York City. It also maintains and operates plants at Chicago, Illi-
nois; Baltimore, Maryland; Los Angeles, California; and San
Antonio, Texas.
The only plant involved in these proceedings is the one at New
York City, herein called the Manhattan plant. The number of em-
2 organization is thus designated on its membership application blanks, and was
thus generally referred to in the course of the hearing. The organization is, however.
designated on the charter granted to it by the International Brotherhood of Teamsters,
Chauffeurs , Stablemen and Helpers as "Furniture , Flour and Grocery Teamsters and
Chauffeurs Union, No. 138, In the City of New York, State of New York "
8 The facts set forth in this section are taken from Board Exhibit No 2, a stipula-
tion entered into by counsel foi all the parties.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees at this plant varies from approximately 80 during the slack
season, which is in the fall and winter, to approximately 140 during
the busy season, which is in the spring and summer.
During the period from October 1, 1938, to January 1, 1939, the
Company's purchases of raw materials shipped from points outside
the State of New York to its Manhattan plant were valued at approx-
imately $218,000, constituting approximately 49 per cent of all the
Company's purchases of raw materials. During the same period, the
Company's sales of finished products shipped from the Manhattan
plant to points outside the State of New York were valued at approx-
imately $426,000, constituting approximately 64 per cent of all the
Company's sales of finished products.
II. TILE ORGANIZATIONS INVOLVED
Independent Union of Confectionery Workers, Local 1, is an un-
affiliated labor organization, admitting to membership employees of
the Company's Manhattan plant.
Local 138, a local branch of International Brotherhood of Team-
sters, Chauffeurs, Stablemen and Helpers, is a labor organization
affiliated through International Brotherhood of Teamsters, Chauf-
feurs, Stablemen and Helpers with the American Federation of
Labor, admitting to membership employees of the Company's
Manhattan plant.
III. THE QUESTION CONCERNING REPRESENTATION
Fruit and Confectionery Workers International Union, Local 362,
affiliated with the American Federation of Labor, herein called Local
362, began to organize the employees at the Manhattan plant in
November 1938. Local 362 had signed up a number of employees
and had begun negotiations with the Company when the Teamsters
began to organize at the plant in December 1938.
On December 30 the president. of Local 362 announced at a meet-
ing of that organization that he had been informed by the Board's
Regional Office in New York City that the Board would not enter-
tain a petition for an election to be conducted at the Manhattan
plant inasmuch as it would involve a jurisdictional dispute between
two unions, both affiliated with a single parent body. The member-
ship then decided to withdraw from Local 362 and to form an un-
affiliated union. They proceeded to organize the Independent and
to elect officers.
On January 6, 1939, the Independent filed the petition which ini-
tiated this proceeding. On January 9 the Regional Office notified
counsel for the Company by letter of the filing of this petition, and
suggested a conference to be held at the Regional Office on January
JOE LOWE CORPORATION 675
11. The Company, the Independent, and the Teamsters were repre-
sented at this conference . Since both unions claimed to represent a
majority of the employees at the Manhattan plant, they discussed the
advisability of a consent election, but failed to come to an agreement.
The R( ;ional Office notified counsel for the Company, in a letter
dated January 12, that "it may be necessary to hold a formal hear-
ing to decide the issue of representation" of the Company's employees.
The Company entered into negotiations with the Teamsters on
January 12. The following notice, signed by the secretary- treasurer
of the Teamsters and by the five employees who had been constituted
a negotiating committee, was posted in the plant on the same day:
Subject to Further Negotiations With Our Union, Joe Lowe
Corporation Has Agreed Upon a Closed Shop.
On January 16 the negotiations between the Company and the
Teamsters were consummated in a written contract providing, among
other things, for recognition of the Teamsters as sole bargaining
agent for all the employees at the Company's Manhattan plant who
perform manual labor, excluding "chemists, technicians, laboratory
workers, outside service men , office and clerical employees, salesmen
and engineers," and requiring, as a condition of employment, mem-
bership in the Teamsters.
At the time of execution of the contract the Teamsters exhibited
to the Company a petition signed by 67 employees, which was subse-
quently attached to the contract as "Exhibit A." This petition was,
however, circulated during working hours by L. Reed, whom we
herein find to be a supervisory employee, and may, therefore, not
represent the real desire of the employees who signed it. In any
event, since the Company and the Teamsters, at the time they entered
into the contract, had knowledge that this proceeding was pending
before the Board, the contract does not constitute a bar to our deter-
mination of representatives.4
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
4 See Matter of Tennessee Electric Power Company and International Brotherhood of
Electrical Workers, 7 N L R B . 24; Matter of American France Line et at . ( Shepard
Steamship Company ) and International Seamen's Union of America , 7 N. L R B 79;
Matter of Unit Cast Corporation and Steel Workers Organizing Committee, 7 N L. R B
129; Matter of Rils Manufacturing Corp. and United Electrical , Radio t Machine Workers
of America ( C. 1. 0.) et al ., 11 N. L. R B. 696
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
- The Independent in its petition alleges that the unit appropriate
for the purposes of collective bargaining consists of all the produc-
tion employees, exclusive of supervisory and clerical employees,
chemists, demonstrators, and outside repair mechanics. The Com-
pany and the Teamsters contend that the unit should consist of all
the employees in the plant, exclusive of supervisory and clerical
employees.6
All the parties stipulated that working foremen, who have some
supervisory duties but are themselves engaged in production work,
and machine-maintenance employees, should be included in the unit.
They agreed, further that S. Kritzler, the traffic manager, is an ex-
ecutive, that A. Webel and L. Metry are chemists, and that M.
Present, A. Bawrngarten, and S. Einbinder, of the premium depart-
ment, and C. Durante, of the extract department, are stenographers,
and should be excluded. We shall, accordingly, exclude them.
The Company at times employs part-time employees, sometimes
for periods as brief as 2 or 3 hours. These employees are purely
transient. The Company maintains no roster of regular part-time
employees. We shall exclude such part-time employees from the
unit.
At the hearing, the Independent, on the one hand, and the Team-
sters and the Company, on the other, disagreed as to the work classi-
fications of a number of employees and as to their inclusion in the
unit. We shall briefly consider the duties of these employees.
L. Reed is employed in the premium department. An employee
named Drapkin testified that he is the working foreman in the
premium department, and that he conveys instructions from Reed
to the other employees in the department. Some of Reed's duties
are to take inventory, to order stock through the purchasing depart-
ment, and to "zone" packages to determine the amount of postage
required. His salary was $33 a week, whereas other employees in
his department earned from $14 to $20 a week. When the contract
went into effect, he received an increase of $7 a week, whereas most
of the employees received increases of $3 a week. We find that
5 The contract entered into between the Company and the Teamsters excludes chemists,
technicians , laboratory workers, outside service men , office and clerical employees , sales-
men, and engineers
JOE LOWE CORPORATION 677
Reed's duties are largely supervisory and partly clerical. He will
be excluded from the unit.
J. Goldenhorn is employed in the receiving department, where,
with the aid of one assistant, he checks merchandise coming into the
plant, signs receipts for it, and distributes it to the proper depart-
ments. He has an office which is situated near the main entrance to
the plant. His duties include watching the men punch the time
clock when they leave, issuing passes to those who have packages,
and taking care of outsiders who come into the plant. He also hands
the men their pay checks on pay day. Goldenhorn's salary was in-
creased, after the contract was signed, from $38 to $45 a week. His
assistant's salary was increased from $26 to $30. Like Reed, Golden-
horn's duties are supervisory and clerical. We shall exclude him
from the unit.
C. Christie is employed in the shipping department. He checks
merchandise going from the shipping floor to the trucks, and marks
the packages. He directs shipping clerks who work under him,
sees that the trucks are properly loaded, and sometimes aids in load-
ing the trucks. Christie's salary is more than $10 higher than that of
any other employee in the shipping department. We shall exclude
Christie as a supervisory employee.
J. Rubens is listed on the pay rolls under "downstairs laboratory."
According to the record, however, he is an engineer in charge of
the maintenance department. He is consulted by the plant officials
with regard to the purchase of machinery. He also exercises super-
vision over the chocolate department, and instructs Martinez, work-
ing foreman of that department, about making up the different kinds
of chocolate. Leibert, superintendent of the plant, described Rubens
as both a working foreman and a supervisory foreman. Rubens is
paid $36 a week. We shall exclude him from the unit as a super-
visory employee.
N. Peyton 6 is employed in the ice-cream laboratory. He makes ice
cream for test purposes, and at times also tests the various ingre-
dients used in making ice cream. Peyton is the only employee in the
ice-cream laboratory who is not shifted to other departments. Pey-
ton receives a salary of $30 a week, whereas his assistant receives
$20 a week. Peyton's work is of a technical nature requiring a
higher degree of skill and training than is required of production
workers. We shall exclude him from the unit.
J. Korn field and H. Hoffman are chemists in the "downstairs lab-
oratory." Although Leibert, when listing the departments where
By agreement between the Company and the Teamsters , Peyton 's name was stricken
from the petition attached to the closed -shop contract on the ground that he is employed
as a "technician."
187930-39-v of 13---44
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manual labor is performed, excluded this department, lie testified
that he sometimes assigns Kornfield and Hoffman to other' depart-
ments to perform manual labor when necessary. They have both
had training as chemists, however, and spend most of their time
doing laboratory work. Their salaries had been $27 a week, and
were increased to $30. As in the case of Peyton, we shall exclude
Kornfield and Hoffman from the unit.
H. Fox, J. Virts, D. Naumovich, and D. Schachmaa are engaged
in servicing and repairing doughnut machines sold by the Company
to bakeries both in and outside New York City. Since the machines
are frequently repaired at the premises where they are located, these
men spend a great deal of time outside the plant. They are some-
times required to travel considerable distances from New York City,
and are upon such occasions away from the plant for several days
at a time. They may be called upon to repair machines at any hour
of the day or night. Their work requires more skill than does or-
dinary production work, and they are not transferred to other de-
partments. All four men, however, do some work in the plant.
Their duties are similar to those of maintenance machinists there
engaged, whose inclusion in the unit was stipulated by counsel for
the contending unions. We shall include them in the unit.
A. Guttentag had also been engaged in repairing doughnut ma-
chines, and is so listed on the three earlier pay rolls. He is some-
times transferred to other departments, where he performs produc-
tion work. He is listed on the pay roll of March 16, 1939, as in the
"donut-downstairs" department. Since he is engaged in either main-
tenance or production work, we shall include him in the unit.
J. Ellis is listed on the pay rolls of December 15 and 29, 1938, as
employed in the premium department, and on the pay rolls of January
20 and March 16, 1939, as employed in the doughnut machine service
and repairs department. Leibert testified that Ellis has at times been
assigned to production work in various other departments. It ap-
pears that before he was assigned to the doughnut machine repair
work, Ellis, who has studied engineering, spent part of his time draw-
ing plans of machines and their locations in the plant, and he con-
tinued to do this work part time even after his transfer. Since it
appears, however, that Ellis is for the most part engaged in produc-
tion and maintenance work, we shall include him in the unit.
A. Baker, P. Durante, A. Pereria,7 H. Schwartz, D. Stolz, and
By agreement between the Company and the 'reamnsteis. Peieria's name was stricken
from the petition attached to the closed-shop contract on the ground that he is employed
as a "technician " The names of Baker , Duiante, and Schwaitz do not appear on the
petition
JOE LOWS CORPORATION 679
D. Winston S are employed in the test room, where cakes and dough-
nuts are made for the purpose of testing the cake flour and doughnut
flour . The record is not entirely clear as to the nature of the work
these men perform. It appears that they bake the cakes and dough-
nuts, and test them for size, texture , and flavor. If it then appears
that a chemical analysis is necessary , it is performed in the laboratory.
Leibert stated that the work performed by these men requires some
degree of skill. They occasionally work outside the plant. The
salaries of these six employees range from $25 to $35 a week except
for Winston, who earns $20 a week. The test room was excluded
by Leibert in listing the departments where manual labor is per-
formed. We find these men to be technical, rather than production,
employees , and shall therefore exclude them from the unit.9
H. Levy, L. Eisen, and S. Kornberg are porters. Levy and Eisen
spend all their time doing janitorial work. Kornberg is at times
assigned the job of fumigating flour which has become contami-
nated, and also, at times, aids the production workers,iit an emergency
situation. Since their duties are primarily those of maintenance
employees, we shall include Levy, Eisen, and Kornberg in the unit.
G. Clark is listed on the two earlier pay rolls under "maintenance"
and on the two later pay rolls under "watchman." According to
Leibert's testimony, however, Clark is as a matter of fact a pensioner.
He comes to work about 2: 00 in the afternoon, and closes the doors
when the men go home at 5: 00 or 5: 30. He is over 70 years old, and
has been with the Company for 35 years. Although Leibert stated
that Clark should be in the unit because he formerly performed a
great deal of manual labor, we shall exclude him in accordance with
our practice not to include pensioners or watchmen within a bargain-
ing unit composed essentially of production and maintenance em-
ployees if objection thereto is raised by a participating labor
organization.1o
The employees who we find above should be excluded from the unit
are listed below in Appendix A.
On or about December 16, 1938, the officials of the Company
laid off 12 employees because of seasonal inactivity, intending, ac-
cording to the Company's general practice, -to rehire them as soon as
8 Stolz and Winston are new employees, hired in February or March 1939 . They are
listed on the March 16 pay roll under "test room," but they also spend part of their
time in the ice-cream laboratory doing the same type of work that Peyton does.
8 F. Lenke, who works part of the time in the test room , spends the major portion of
his time in manual labor in various other departments . None of the parties sought his
exclusion . We shall include Lenke in the unit.
15Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron,
Steel and Tin Workers of North America, Lodge No. 1719 , 7 N. L. R . B. 714; Matter of
Plankinton Packing Company and Packing House Workers Organizing Committee on
Behalf of Local 681 of the United Packing House Workers of America, 5 N. L. R . B. 813.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business warranted it. When these men were offered reinstatement,
however, the closed-shop contract had been signed, and reinstatement
was conditional upon their joining the Teamsters. Only three 11 of
them accepted reinstatement on that condition. On January 14, 1939,
eight employees who were members of the Independent went out on
strike. Leibert, superintendent of the plant, stated that he is willing
to take back some of the laid-off and striking employees, but has not
indicated which ones. Since these 17 men have a reasonable expec-
tation of returning to the Company's employ, they have an interest
in the outcome of the election 12 None of these laid-off and striking
employees, who are listed in Appendix B below, appears to fall in
any of the classes we have excluded from the appropriate unit. Al-
though the record indicates that some of these men have obtained
employment elsewhere, it is not shown whether or not they have
obtained regular and substantially equivalent employment. In the
absence of such a showing, these men will be permitted to cast their
ballots, subject to challenge by any of the parties.
We find that all the production and maintenance employees at
the Company's Manhattan plant, including the employees listed in
Appendix B, but excluding supervisory and clerical employees,
chemists, laboratory workers, part-time employees, and the employees
listed in Appendix A, constitute a unit appropriate for the purposes
of collective bargaining and that said unit will insure to the em-
ployees of the Company the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate
the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the time the petition was filed, there were about 120 employees
at the Manhattan plant, about 90 of whom were in the appropriate
unit. On January 16, 1939, when the contract with the Teamsters
was executed, each of the labor organizations here involved had been
designated as bargaining agent by a substantial number of the em-
ployees in the unit we have found to be appropriate. Each claims
that it had then been so, designated by a majority, and that it is
the present choice of a majority. The Teamsters introduced docu-
mentary proof of its present designation by a majority; the Inde-
pendent, refusing to reveal the names of its members, requested an
election.
11 D Frankel, J Kuslel, and S. Sanflippo
12 Matter of Robbins & Myers, Incorporated and Joint American Federation Committee
for the Robbins & Myers Co. Plant, et at., 7 N. L. R. B. 1119.
JOE LOWE CORPORATION 681
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by the
holding of an election by secret ballot to determine which of the
unions, if either, the employees in question desire to represent them.13
During February and March 1939 the Company hired about 40
new employees on a permanent basis. Such new employees are en-
titled to vote if they are in the unit found appropriate. We shall
accordingly direct that the employees of the Company within the
appropriate unit who were on the Company's pay roll immediately
preceding the date of our Direction of Election herein, excluding
those who have since quit or been discharged for cause, shall be
eligible to vote.
On the basis of the above findings of fact and upon the entire
record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the National Labor
Relations Act.
2. All the production and maintenance employees at the Company's
Manhattan plant, including the employees listed in Appendix B, but
excluding supervisory and clerical employees, chemists, laboratory
workers, part-time employees, and the employees listed in Appendix
A, constitute a unit appropriate for the purposes of collective bar-
gaining, 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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Joe Lowe Corporation, New York City, an election by secret
ballot shall be conducted within fifteen (15) days from the date of
this Direction of Election, under the direction and supervision of
the Regional Director for the Second Region, acting in the matter
13 Matter of The Cudahy Packing Company and United Packinghouse Workers of
America, Local No. 21, of the Packinghouse Workers Organizing Committee, Affiliated
with the Congress of Industrial Organizations , 13 N L R. B. 526
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as agent of the National Labor Relations Board, and subject to
Article III, Section 9, of said Rules and Regulations, among all the
production and maintenance employees of Joe Lowe Corporation at
its New York City plant who were employed by it in the pay-roll
period immediately preceding the date of this Direction of Election,
including the employees listed in Appendix B, employees who did
not work during such pay-roll period because they were ill or on
vacation, and employees who were then or have since been tempo-
rarily laid off, but excluding supervisory and clerical employees,
chemists, laboratory workers, part-time employees, the employees
listed in Appendix A, and employees who have since quit or been
discharged for cause, to determine whether they desire to be repre-
sented by Independent Union of Confectionery Workers, Local 1,
or by Local 138, International Brotherhood of Teamsters, Chauffeurs,
Stablemen and Helpers, affiliated with the American Federation of
Labor, for the purposes of collective bargaining, or by neither.
APPENDIX A
A. Baker
A. Baumgarten
C. Christie
G. Clark
C. Durante
P. Durante
S. Einbinder
J. Goldenhorn
H. Hoffman
J. Kornfield
S. Kritzler
APPENDIX B
A. Bilotti
M. Block
E. Campbell
R. Cucchiaro
J. Doyle
H. Freudenthal
B. Gajda
D. Garbarini
W. Gerrier
L. Metry
R. Myer
A. Pereria
N. Peyton
M. Present
L. Reed
J. Rubens
H. Schwartz
D. Stolz
A. Webel
D. Winston
R. Leibson
W. Lejman
J. Molloy
G. Novak
A. Pacello
H. Schoenfeld
P. Schuessler
W. Waller