Lusk Candy Co.

National Labor Relations Board - Board Decisions

Jul 15, 1949

85 N.L.R.B. 216 (N.L.R.B. 1949)

In the Matter of LusK CANDY COMP ANY, EMPLOYER and BAKERY AND
CONFECTIONERY WORKERS OF AMERICA LOCAL No. 36, A. F. OF L.,
PETITIONER
Case No. 18-RC-364.-Decided July 1b, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Clarence A.
Meter, hearing officer of the National Labor Relations Board. The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Reynolds, Murdock, and
Gray].
Upon the entire record in the case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner is a labor organization, claiming to represent em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Section
9 (c) (1) and Section 2 (6) and'(7) of the Act.
4. The appropriate unit :
The parties agree that all the Employer's production and mainte-
nance employees, excluding office and clerical employees, guards, and
supervisors constitute an appropriate unit. There is disagreement
with respect to the inclusion in the unit of the floorlady, seasonal em-
ployees, and the shipping clerk.
The floorlady: The Employer would exclude this individual as a
supervisor while the Petitioner would include her because she de-
votes some of her time to production work. The floorlady is in charge
of the packers of whom there are about 12. She gives them their work
assignments, supervises them, and has authority to discharge them
and to hire new employees. She also keeps production and piecework
85 N. L. it. B., No. 38.
216
LUSK CANDY C01\/IPANY 217
records and devotes less than 10 percent of her time to production
work. We are of the opinion that the floorlady is a supervisor within
the meaning of the Act and accordingly shall exclude her.
The seasonal employees: The Employer maintains a working
force of from 13 to 26 employees on a year-round basis. During its
busy season, which begins about the middle of September and lasts
for about 3 months, the Employer takes on additional workers, all
,of whom are hired on a temporary basis. The Petitioner would in-
elude these seasonal workers, while the Employer would exclude
-them. These employees work part-time and for the most part are
either students from neighboring schools or regularly employed work-
ers in other plants. The turn-over among them is high, many of them
quitting after a few weeks. Very few if any of these seasonal em-
ployees return to the plant from year to year. It is evident from the
foregoing that the seasonal workers do not have a community of
interest with the Employer's permanent employees? We shall there-
fore exclude them.
The shipping clerk: There is only one permanent shipping clerk
,on the Employer's pay roll. The Employer desires to include him
and the Petitioner takes no position with respect to his unit place-
ment. This employee packs goods for shipment to customers, noti-
fies trucking companies when goods are ready for shipment, and helps
load and unload incoming and outgoing freight. He is entitled to
the same benefits and privileges which the Employer extends to its
-other employees and receives the.same rate of pay as many of the
production workers. We shall include the shipping clerk 2
We find that all the Employer's production and maintenance em-
ployees, including the shipping clerk, but excluding office and clerical
employees, guards, seasonal employees, the floorlady, and all other
:supervisors as defined in the Act constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section 9
(b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, 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 direc-
tion and supervision of the Regional Director for the Region in which
this case was heard, and subject to Sections 203.61 and 203.62 of Na-
' Matter of Dr. Phillips Canning Co., 73 N. L. R. B. 988; Matter of Southern Fruit
Distributors, 74 N. L. R. B. 72.
'Matter of Kearney & Treeker Corporation, 60 N. L. R. B. 147.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Labor Relations Board Rules and Regulations-Series 5, as
amended, among the employees in the unit found appropriate in
paragraph numbered 4, above, who were employed during the pay-
roll period immediately preceding the date of this Direction of Elec-
tion including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, but ex-
cluding 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, and also excluding employees on strike who are not entitled
to reinstatement, to determine whether or not they desire to be rep-
resented for purposes of collective bargaining by Bakery and Con-
fectionery Workers of America, Local No. 36, A. F. of L.