National Buscuit Co.

National Labor Relations Board - Board Decisions

Jul 1, 1946

69 N.L.R.B. 229 (N.L.R.B. 1946)

In the Matter of NATIONAL BISCUIT COMPANY and BAKERY AND CON-
FECTIONARY WORKERS' INTERNATIONAL UNION, LOCAL 492, A. F.
OF L.
Case No. 4-R-1749.-Decided Judy 1, 1946
Messrs. Souser, Schumacher and Taylor, by Mr. Robert H. Kleeb,
of Philadelphia, Pa., for the Company.
Messrs. Kalman Sklar and William A. Galvin, of New York City,
and Mr. Jack Soloner, of Philadelphia, Pa., for- the Union.
Mr. John A. Nevros, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Bakery and Confectionery Workers'
International Union, Local 492, A. F. of L., herein called the Union 1
alleging that a question affecting commerce had arisen concerning
the representation of employees of National Biscuit Company, Phila-
delphia, Pennsylvania, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Helen F. Humphrey, Trial Examiner. The hearing was held
at Philadelphia, Pennsylvania, on May 16, 1946. The Company
.:nd the Union appeared and participated. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. The Trial Exam-
iner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. At the hearing, the Company moved to
dismiss the petition. The Trial Examiner reserved ruling on this
motion for the Board. For reasons stated hereinafter, the motion
is hereby denied. All parties were afforded an opportunity to file
briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
National Biscuit Company, a New Jersey corporation, is engaged
in the manufacture of cakes and cookies. The Company operates sev-
I The name of the Union appears as amended at the hearing.
69 N. L . R. B., No . 23. 229
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral plants including the one at Philadelphia, Pennsylvania, which is.
solely involved in this proceeding. During 1945, the Company used
at its Philadelphia plant over $500,000 worth of raw materials, 90 per-
cent of which came from sources outside the Commonwealth of Penn-
sylvania. During the same period, the Company manufactured fin-
ished products exceeding $500,000 in value, 35 percent of which repre-
sented shipments to points outside the Commonwealth.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Bakery and Confectionery Workers' International Union, Local
492, affiliated with the American Federation of Labor, is a labor or-
ganization admitting to membership employees of the Company.2
IH. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the exclusive bargaining representative of certain of the Company's
supervisory employees.
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 Union seeks a unit of all foremen, foreladies, assistant foremen,
and assistant foreladies in the following departments of the Company's
Philadelphia Plant : warehouse, baking,4 packing, icing, shipping,
Philadelphia Depot, maintenance, and power, light and heat.' These
departments apparently include all the production and maintenance
employees of the Company at its Philadelphia plant.
2 The Company , In one of the grounds of Its motion to dismiss the petition , attacks the
competency of the Union to function as a labor organization within the meaning of Section
2 (5) of the Act with respect to its supervisory personnel It argues , in effect, that such
disability stems from the fact that supervisors are not employees within the Act's meaning.
We do not agree . We have heretofore considered the status of supervisory employees such
as those here involved and have found them to be employees within the meaning of Section
2 (3) of the Act. See Matter of L. A. Young Spring & Wire Corporation , 65 N. L. it. B.
298; Matter of The B F. Goodrich Company, 65 N L R B 294 • and Matter of Soss Manu-
facturing Company , et at , 56 N L. R B. 348 Accordingly, inasmuch as the record shows
that the Union exists for the purposes described in Section 2 (5) of the Act, we find the
Company's contention to be without merit.
8 The Company objects to the proceeding on the ground that nothing has been introduced
into evidence showing the extent of the Union' s representation among the employees in the
alleged appropriate unit. For reasons stated in our recent decision in Matter of 0. D.
Jennings it Company, 68 N. L. R B. 516 , we find no merit in the Company ' s objection.
4 The baking department includes the following three units : bake shop-old building,
sponge shop-new building , and bake shop-gas ovens building.
5 At the hearing the Union amended the unit as shown above.
NATIONAL BISCUIT COMPANY 231
The Company takes the initial position that these individuals
cannot constitute an appropriate unit because (1) they are not em-
ployees within the meaning of Section 2 (3) of the Act, (2) the
supervisors sought by the Union are not mere "traffic cops" but are an
indispensable part of the Company's management, (3) the Union
presently represents the rank and file production and maintenance
workers under a "union shop" contract, and to allow the Union to
represent the supervisors would cause a division of loyalties on the
part of its supervisors, impair their efficiency, and frustrate rather
than effectuate the policies of the Acts If overruled in this conten-
tion the Company, without waiving its primary position, agrees with
the grouping proposed by the Union. It does however oppose the
Union's position with respect to the disposition to be made of em-
ployees Harry Reed, Raymond Mergner, and Joseph Hammond. It
is apparent from our Decisions in Matter of Jones & Laughlin Steel
Corporation, Vesta-Shannopin Coal Division ,7 and other recent cases,'
that the issues raised by the Company in its primary position are
lacking in merit.
As noted above, the Company does not take issue with the Union
as to the grouping of foremen, foreladies, assistant foremen and assist-
ant foreladies in the same unit. These employees comprise the two
lowest levels in the plant hierarchy having supervisory powers within
the Board's definition of that term.9 Foremen and foreladies are
directly under the superintendents, who head their respective depart-
ments. The assistant foremen and assistant foreladies are directly
responsible to the foremen or foreladies and are subordinate to them.
The assistant foremen and assistant foreladies substitute for the fore-
men and foreladies an average of approximately 3 hours daily, as
well as on vacations, sick leave, and during other absences. A foreman
or forelady has the authority to discharge an assistant foreman or
assistant forelady without consulting the department superintendent.
However, except for this authority, and the greater degree of respon-
9 The Company's primary position, as stated above, embodies in substance all except
one of the grounds asserted in the Company's motion to dismiss the petition. The ground
not stated here has already been discussed in footnote 2, supra.
7 66 N L R. B. 386.
d Matter of The Baldwin Locomotive Works, 67 N. L. R. B. 1287 ; Matter of Williams
Oil-O-Matie Division of Eureka Williams Corporation, 67 N L. R. B. 1091 ; Matter of
Hudson Motor Car Company, 67 N. L. R. B. 368; Matter of Harrisburg Steel Corpora-
tion, 67 N L. R B. 164 ; Matter of The Colson Corporation, 67 N. L. it. B. 72 ; Matter
of The Curtis Bay Towing Company of Pennsylvania, et al., 66 N. L. R. B. 1152; Matter
of The Midland Steel Products Company, Parish & Bingham Division, 65 N. L it. B. 997;
Matter of L. A. Young Spring & Wire Corporation, 65 N. L. it. B. 298; and Matter of The
B. F. Goodrich Company, 65 N. L. R. B. 294.
9 The Company also employs working foremen and working supervisors who are on an
intermediate level between the assistant foremen and the ordinary rank and file workers.
They have no supervisory powers or duties within the Board's customary definition, and it
also appears that they are presently covered by the existing contract for production and
maintenance rank and file employees between the Company and the Union, and are not
sought to be included in the supervisory unit.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sibility 10 of foremen and foreladies, the powers and duties of fore-
men, foreladies, assistant foremen and assistant foreladies, with
respect to the hire, discharge, and discipline of their subordinates, are
similar. In view of the foregoing, and on the entire record in the
case, we conclude that these foremen, foreladies, assistant foremen,
and assistant foreladies constitute a distinct homogeneous group
which may function together for collective bargaining purposes.'1
As noted above, the Union and the Company are in disagreement
with respect to Harry Reed, Raymond Mergner, and Joseph Ham-
mond, the Union desiring to include the two first mentioned employees
and to exclude the last mentioned employee.
Harry Reed: During the war, and at the time the petition was filed,
Reed held what was considered a supervisory position. However,
after the petition but before the hearing his work changed to that of a
clerical employee. He maintains time and attendance records of the
,Company's employees in the warehouse department, checks syrups
as they are received in the building, and checks and records certain
types of raw materials on the Company's books. He is paid on an
hourly basis, exercises no supervisory authority over any employees,
and in fact has never had a group of workers subordinate to him, even
during the war. It is clear that he is not a supervisory employee
within our customary definition of the term and accordingly, we shall
exclude him from the unit as a clerical employee.
Raymond Mergner: During the war, and at the time of the filing of
the instant petition, Mergner was an assistant foreman on the night
shift. However, at the time of the hearing he had reverted to his
pre-war clerical duties, which are similar to those of Harry Reed. In
view of the fact that Mergner presently has no subordinates and pos-
sesses no supervisory duties, we shall exclude him from, the unit as a
-clerical employee.
Joseph Hammond: Although Hammond's designation is that of
"maintenance foreman-maintenance department" he is ranked by the
Company as an assistant foreman. He was upgraded to this position
about 6 years ago with the consent of the Union. He has, on an
average, between five and six machinists under his direction, and
possesses authority to reject or transfer any employees assigned to
him. He also has the authority to effectively recommend the discharge
or discipline of subordinate employees. Although the Union has
continued to bargain for him in the same unit with the rank and file
production and maintenance workers, it concedes that he is a super-
18 In this connection, it appears that the assistant foremen and assistant foreladies
participate in the first step of the grievance procedure , while the foremen and foreladles
take part in the second step.
n This follows generally the pattern for the unit of the rank and Me employees covered
tzy the existing contract between the Union and the Company.
NATIONAL BISCUIT COMPANY 233
visory employee within the Board's customary definition of that term.
Accordingly, in view of the foregoing, and inasmuch as his status is
clearly similar to that of the other assistant foreman included within
the unit, we shall include him in the supervisory unit.
We find that all foremen, foreladies, assistant foremen, and assistant
foreladies in the following departments of the Company's Philadel-
phia plant : warehouse, baking, packing, icing, shipping, the Phila-
delphia Depot, maintenance, and power, light and heat, including the
maintenance foreman in the maintenance department, but excluding
clerical employees, main office employees, superintendents, and all
other supervisory employees, constitute a unit 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 be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding 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 Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with National Biscuit
Company, Philadelphia, Pennsylvania, 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 supervi-
sion of the Regional Director for the Fourth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among 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, and including employees in the armed forces of
the United States who present themselves in person at the polls, but
excluding any who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the election,
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to determine whether or not they desire to be represented by Bakery
and Confectionery Workers' International Union, Local 492, A. F.
of L., for the purposes of collective bargaining
MR. GERARD D. REILLY, dissenting:
For the reasons stated in my dissenting opinions in Matter of Pack-
ard Motor Car Company,12 and Matter of Jones & Laughlin Steel
Corporation, Vesta-Shannopin Coal Division, " I am constrained to
disagree with the majority opinion.
61 N . L. R. B. 4.
" 66 N. L . R. B. 886.