Loft Candy Corp.

National Labor Relations Board - Board Decisions

Jan 27, 1943

47 N.L.R.B. 37 (N.L.R.B. 1943)

In the Matter of LOFT CANDY CORPORATION and UNITED RETAIL, WHOLE-
SALE & DEPARTMENT STORE EMPLOYEES OF AMERICA, AFFILIATED WITH'
THE C. I. O.
In the Matter of LOFT CANDY CORPORATION and PAPER Box MAKERS
UNION LocAL 299, A. F. OF L. -
In the Matter of LOFT,CANDY CORPORATION and LOCAL UNION No. 3, IN-
TERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
Cases Nos. R-4754, R-4755, R-4756, respectively. Decided Janu-
ary 07, 1943
Jurisdiction : candy manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord recognition, with suggestion that unions apply to the Board;
election necessary.
Unit Appropriate for Collective Bargaining : all the employees at one factory
of company other than office employees, employees in the laboratory, sale and
sign departments , engineers , electricians , and employees in a supervisory
capacity.
Mr. Alan F. Perl and Mr. Richard J. Hickey, for the'Board.
Diamond, Rabin & MacKay, by Mr. Milton Diamond and Mr.
Jerome Adler, of New York City, for the Company.
Markewich, Rosenhaus ct Markewich, by Mr.' Arthur K. Garfinkle,
of New York City for the C. 1. 0.
Mr. Moses Polako ff, of New York City, for Local 1115 of the C. 1. 0.
Mr. William Karlin, by Air. Leo. Greenfield, of New York City, for
the Paper Box Makers.
Mr. Harold Stern, of New York City, and, for the I. B. E. W.
Buitenkant c Cohen, by Mr. Jacques Buitenkant and Mr. Arnold
Cohen, of New York City, and Mr. Herman E. Cooper, of New York
'City,.for the Confectionery Workers.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
Upon petitions duly filed by United Retail , Wholesale & Department
Store-Employees of America , affiliated with the C. I. 0., herein called
47N:L R.B,No.7
y7
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the C. I. 0.,' by Paper Box Makers Union Local 299, A. F. of L.,
herein called the Paper Box Makers, and by -Local Union No. 3, Inter-
national Brotherhood of Electrical Workers, -herein called the
I. B. E. W., each alleging that a question affecting commerce had arisen
concerning the representation of employees of Loft Candy Corpora-
tion, Long Island City, New York, herein called the Company, the
National Labor Relations Board consolidated the cases and provided
for an appropriate hearing upon due notice before James C. Paradise,
and his successor, Martin I. Rose, Trial Examiners. Said hearing
was held at New York City, on December 17, 28, 29, 30, and 31, 1942,
and on January 4, 5, 6, 7, and 8, 1943. The Company, the C. I. O., the
Paper Box Makers, the I. B. E. W., and Candy & Confectionery Work-
ers Union, Local 452, A. F. of L., herein called the Confectionery
Workers, appeared, participated, and were afforded full opportunity
to 'be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues.2 The Trial Examiner's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. On January 14, 1943, the I. B. E. W. filed a brief which the
Board has considered.
Upon the, entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Loft Candy Corporation, a New York corporation, maintains its
principal office and factory at Long'Island City, New York, where
it is engaged in the manufacture, sale, and distribution of candies,
ice cream, novelties, and related products, and also in the processing
,and preparation of foods dispensed at its soda, fountains. The prin-
cipal raw materials purchased by the Company for use in its plant
are fruits, `sugar, nuts, chocolate, and milk. During the period from
January 1 to November 30, 1942, the Company purchased and used
in the manufacture of candy i aw materials having a value in excess
of $1,000,000, of which at least 25 percent was shipped to the plant
from points outside the State of New York. During the same period,
the retail sales value of everything sold in the Company's stores
was in excess of $8,000,000 (approximately one-third being food
and restaurant sales), of which over 26 percent was shipped from the
Company's plant to its retail distributing outlets located principally
in the States of New Jersey, Connecticut, Pennsylvania, Delaware, and
1 Four petitions in all were filed by the C 1 O. or its affiliate Local 1115.
2 Local 1115 of the C. '1 0 appealed on the first 2 days of the hearing during which
no testimony was taken. Thereafter the C. I 0 'represented it. A representative of
Bakery & Confectionery Workers International Union , A F of L, also entered an appear-
ance but indicated that he was appearing in the proceedings jointly with the Confectionery
Woi kers e
LOFT CANDY CORPORATION 39
Maryland. The Company neither admits nor denies that it is engaged
in commerce within the meaning of the National Labor Relations
Act.
II. THE ORGANIZATIONS INVOLVED
United Retail, Wholesale .& Department Store Employees of
America is a labor organization affiliated with the Congress of Indus-
trial Organizations, admitting to. membership employees of 'the
Company. •
Candy & Confectionery Workers Union , Local 452 , affiliated with
Bakery & Confectionery Workers International Union; Paper Box
Makers Union Local 299, affiliated with 'International Brotherhood
of Pulp, Sulphite & Paper Mill Workers ; and Local Union No. 3,
International Brotherhood of Electrical Workers, are labor organiza-
tions affiliated with the American Federation of Labor, and admitting,
to membership eniployees of the Company. S 1
17. THE QUESTION CONCERNING REPRESENTATION .
On August 14,-1942, the Paper Box Makers wrote-the Company
claiming it represented a majority of the Company's employees en-
gaged in the. production of paper boxes. The Company replied on
August 19, 1942, stating that the employees engaged in the production
of paper boxes were covered by a contract between it and the Con-
fectionery Workers. - This contract expired on December 31, 1942.
On or about August 24, 1942, an organizer for the I. B. E. W. con-
sulted with the president of the Company and claimed to represent
the Company's maintenance mechanics and helpers. On December
21, 1912, the C. I. O. also requested bargaining rights from the Com-
pany. Both the I. B. E. W. and the C. I. O. were referred to the
Board in view of the pendency of the instant proceedings.
Statements of the Trial Examiner made at the hearing indicate
that each of the labor organizations involved in these proceedings
represents a substantial number of employees in the unit it contends
to be appropriate.'
a The following table is a summary of the Trial Examiner 's statements as to the number of employees on
the Company's pay roll of October 17, 1942, in each of the proposed units who appeared to have designated
the labor organizations party to these proceedings to represent them*
Labor organization
Total num-
her of cards
submitted
Number of
cards in
plant-wide
unit
Number of
cards in
urit of
box makers
Total number of employees in units______ -------------- 1, 164 145
Confectionery workers____ _______________ OSs 544 0
C 1.0 ---------------------------------- 703 408 0
Paper Box Makers_ ______________________ 175 0 121
I B E w----------------------------- 15 0 0
Number of
cards in unit
of mainte-
nance me-
chanics
15
8
0
0
14
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Confectionery Workers' position on the appropriate unit,
after various stipulations, was that all the employees in the Company's
Long Island City plant, including foremen and foreladies who do
manual work, laboratory employees, and sign department employees,,
but, excluding executives, supervisors not engaged in manual work,
sales department executives, laboratory chemists, engineers, electri-
cians, electrical refrigeration mechanics, novelty workers, store em-•
ployees, and office employees, constitute an appropriate unit. This
unit , with the exception of its inclusion, of laboratory employees and
sign department employees, is the unit which was covered by the re-'
cently expired contract between the, Confectionery Workers and the
Company.
The unit proposed by the C. I. 0. in its final amended petition dif-
fered from the above-mentioned contract unit only in that it excluded
maintenance mechanics and maintenance mechanics helpers. At the
hearing, however, the C. I. 0. urged the Board to find separate units
of ' the employees in' the box department and of maintenance mech-
anics and their helpers as petitioned for by the Paper Box Makers
and the I. B. E. W., respectively. - The Company took no position
with respect- to the appropriate unit.
Since ' 1938, the Confectionery Workers has bargained with the
Company on behalf of the Company's employees in a factory-wide
unit, which included not only employees in the candy department but
'those in the box department and maintenance mechanics and their
helpers. Successive contracts covering the employees in such a unit
`have been operative from that time until December 31, 1942, when
the 1940 contract expired. 3 Thus, the employees of the box depart-
ment and the maintenance mechanics and maintenance mechanics
helpers have been represented by' the Confectionery Workers under
valid contracts for approximately 4 years.
In view of this extended period of bargaining upon a factory-wide
unit basis, we find that the separate bargaining units petitioned for by
the I. B. E. W. and the Paper Box Makers are not appropriate for the
purposes of collective bargaining.
3 The Company has other contracts at the present time • two with the I. B E W., one
covering its electrical employees and the other its refrigeration employees ; one with the
C. I 0. covering its office-(employees ( including novelty ' workers ) ; and two with locals
of the ' International Union of Operating Engineers covering its firemen , oilers, coal passers,
and incinerator men, and its engineers , respectively . Each of these groups of employees
is excluded from the unit as set forth in the recently expired contract of the Confectionery
workers. - . ,
LOFT CANDY CORPORATION 41
We further find that the unit as'fixed by the expired contract of the
Confectionery Workers, namely , all the - employees of, the factory,
other, than office employees , employees in the laboratory , sale and sign
departments , engineers , electricians , and employees in a supervisory
capacity, is appropriate for the purposes of collective bargaining,
within the meaning of Section 9 ( b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen , b'e resolved by an election by secret ballot. The parties.
were not in agreement as to the pay -roll date which should determine
eligibility to vote. The. Confectionery Workers requested a date as,
of the early part of September 1942, on the ground that all regular'
and peak season employees for the Christmas seasonal rush are hired
before Labor Day. The C. I. O. claimed that the date should be on
or about November 16, 1942. Inasmuch as an officer of the Com-
pany testified that the Company has laid off no employees since the
Christmas rush season and intends to retain all its employees hired
since Labor Day , we see no reason to depart from our customary pro-
cedure in determining eligibility to vote. We shall , therefore , direct
that those eligible to vote shall be the employees in the appropriate
unit who were employed during the pay-roll period immediately pre-
ceding the date of , the Direction of Election herein, subject to the
limitations'and additions set forth in the Direction.
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 Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED , that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Loft Candy Cor-
poration, Long Island City, New York, 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 10, of said Rules and Regulations, 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 tempo-
rarily laid off, and including employees in the armed forces of the ,
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States who present themselves in person at the polls, but
excluding any who have since quit or been discharged for cause,.to
determine whether they desire to be represented by Candy & Con-
fectionery Workers Union, Local 452, A. F. of L., or by United Retail,
Wholesale & Department Store Employees of America, affiliated with
the C. I. 0., for the purposes of collective bargaining, or by neither.
ORDER
Upon,the basis of the foregoing findings of fact, the National Labor
Relations Board hereby orders that the petitions for investigation
and certification of representatives of employees of Loft Candy Cor-
poration, Long Island City, New York, filed by Paper Box Makers
Union Local 299, A. F. of L., and by Local Union No. 3, International
Brotherhood of Electrical Workers, be, and they hereby are, dismissed.