National Biscuit Co.

National Labor Relations Board - Board Decisions

Apr 23, 1948

77 N.L.R.B. 332 (N.L.R.B. 1948)

In the Matter of NATIONAL BISCUIT COMPANY, EMPLOYER and OFFICE
EMPLOYEES INTERNATIONAL UNION, LOCAL 153, AFL, OF OFFICE EM-
PLOYEES INTERNATIONAL UNION, PETITIONER
Case No. ?,RC-192.-Decided April 03,1948
Messrs. Joseph H. Burgess, Jr., William E. Mackay, and S. W.
Rodda, of New York City, for the Employer.
Messrs. Walter M. Colleran, Walter C. Gorray, Ernest Ettlinger,
and Howard Coughlin, of New York City, for the Petitioner.
Markewich, Rosenhaus and lllarkewich, by Mr. Arthur K. Garfinkel,
of New York City; and Messrs. Julius Sam and A. Paul Schur, of New
York City, for the Intervenor.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at New
York City, on February 13, 1948, before Leonard J. Lurie, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
During the course of the hearing, Retail, Wholesale and Chain
Store Food Employees Union, Local 338, CIO, herein called the Inter-
venor, moved to dismiss the petition and relegate the issues herein to
the New York State Labor Relations Board, contending that the
National Labor Relations Board does not have jurisdiction to enter-
tain this petition. The hearing officer did not rule on this motion.
For reasons set forth below, the Intervenor's motion is hereby denied.
Upon the entire record in the case, the National Labor Relations
Board 1 makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
National Biscuit Company, a New Jersey Corporation, is engaged
in the manufacture and sale of bakery products and cereals, with its
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Board has delegated its powers in connection R ith this case to
a three-man panel consisting of the undersigned Board Members [ Houston, Reynolds, and
Gray].
77 N. L. R. B., No. 47.
332
NATIONAL BISCUIT COMPANY 333
main office in New York City and with branch offices, baking plants,
and sales agencies throughout the United States. The Employer
operates a plant in New York City, and has six sales agencies in the
New York City area.2 Salesmen at these agencies are involved in
this proceeding.
During the past year, the Employer's New York City plant used
raw materials valued in excess of $1,000,000 of which approximately
60 percent was purchased from points outside the State of New York.
During the same period the Employer's New York City plant sold
products valued in excess of $1,000,000 within and outside the State
of New York.
The salesmen in the New York City area sell to retailers and private
organizations, such as the YMCA and hospitals, only within the State
of New York. During the past year they received and sold the Em-
ployer's products, valued in excess of $1,000,000, approximately 90
percent of which was manufactured in the Employer's New York
City plant. The remaining 10 percent of the products sold by the
salesmen in the New York City area were secured from the Employer's
plants outside the State of New York.'
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. TIIE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
Retail, Wholesale and Chain Store Food Employees Union, Local
338, herein called the Intervenor, is a labor organization affiliated with
the Congress of Industrial Organizations, claiming to represent em-
ployees of the Employer.
3 The agencies are located at Chelsea , New Brighton , Brooklyn , Long Island City,
Jamaica, and Mineola, New York.
3 The Intervenor asserts that the salesmen involved in this proceeding are engaged in
activities wholly intrastate in character and contends that the Board is without juris-
diction to entertain the instant petition respecting them. We do not agree . The Employer
is clearly engaged in interstate commerce in the course of its manufacture and sale of
bakery products. That the salesmen herein concerned do not in the course of their assigned
duties move across State lines is not determinative of the Board 's jurisdiction over their
Employer. The record discloses that these salesmen sell some products manufactured by
the Employer outside the State of New York and that they sell other products manufac-
tured by the Employer at the New York City plant, which imports from outside the State
a very considerable amount of raw materials for their manufacture . Furthermore, the
unitary character of the Employer 's operations of manufacture and sale of its products
in the State of New York impresses our jurisdiction upon the entire enterprise . Southern
Colorado Power Company v. N L. R B, 111 F (2d) 539, 542-543 (C C. A. 10) ; N L.
R. B v. Schmidt Bakery Cc , Inc., 122 F (2d) 162, 163 (C C. A. 4) ; N L. R. B. v.
Weyerhaeuser Timber Company, Clemons Branch, 132 F (2d) 234, 235 (C. C. A 9) ;
Butler Brothers v. N. L. R B., 134 F. (2d) 981, 983-984 (C. C. A. 7).
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner or the Intervenor
as the exclusive bargaining representative of employees of the Em-
ployer until certified by the Board in an appropriate unit.
We find that a.question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, substantially in accordance with the agreement of the
parties at the hearing, that all salesmen attached to the Employer's
sales agencies in Chelsea, New Brighton, Brooklyn, Long Island City,
Jamaica, and Mineola, New York, excluding special representatives,
sales representatives, special salesmen, agency managers, "agency as-
sistant managers, and other supervisors, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with National Biscuit Company,
New York City, an election by secret ballot shall be conducted as early
as possible, but not later than thirty (30) days from the plate of this
Direction, under the direction and supervision of the Regional Direc-
tor for the Second Region, and subject to Sections 203.61 and 203.62,
of National Labor Relations Board Rules and Regulations-Series 5,
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 temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated 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 represented by Office Employees International
Union, Local 153, AFL, of Office Employees International Union, or
by Retail, Wholesale and Chain Store Food Employees Union, Local
338, CIO,'for the purposes of collective bargaining, or by neither.