Reliable Nut Co.

National Labor Relations Board - Board Decisions

Aug 14, 1945

63 N.L.R.B. 357 (N.L.R.B. 1945)

In the Matter of BERNARD SHAPIRO AND MONROE SHAPIRO, PARTNERS,
D/B/A RELIABLE NUT COMPANY and FOOD, TOBACCO, AGRICULTURAL
AND ALLIED WORKERS UNION OF AMERICA, C. I. O.
Case No. 21-R-2837.-Decided August 14, 1945
Latham and Watkins, by Mr. Richard W. Lund, of Los Angeles,
Calif., for the Company.
Miss Luisa Moreno and Messrs. 0. H. Johnston and Dixie Tiller, of
Los Angeles, Calif., for the Union.
Mr. Joseph D. Manders, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Food, Tobacco, Agricultural and Allied
Workers Union of America, C. I. 0., herein called the Union, alleging
that a question affecting commerce had arisen concerning the represen-
tation of employees of Bernard Shapiro and Monroe Shapiro, part-
ners, d/b/a Reliable Nut Company, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Maurice J. Nicoson, Trial Examiner. Said
hearing was held at Los Angeles, California, on May 25, 1945. The
Company and 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
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. All parties were afforded an oppor-
tunity to file briefs with the Board. The Company, in its brief, moved
for dismissal of the instant petition. For reasons stated in Section V,
the motion is hereby denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Bernard Shapiro and Monroe Shapiro, partners, d/b/a Reliable Nut
Company, are engaged in the manufacture of edible nut products at
63 N. L . R. B., No. 52.
357
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their sole plant located in Los Angeles, California. The chief prod-
ucts purchased and used by the Company in its manufacturing
processes include peanuts and other edible nuts, oils, sugar, salt, and
packing materials. The Company's finished products primarily con-
sist of peanut butter, salted nuts, peanut candy, and edible nuts.
During the current fiscal year, it is estimated that the Company pur-
chased raw materials valued in excess of $1,000,000, approximately 70
percent of which was shipped to it from points outside the State of
California. During the same period, the Company sold finished prod-
ucts valued in excess of $1,400,000, approximately 15 percent of which
was shipped to points outside the State of California.
We find that the Company's operations affect commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Food, Tobacco, Agricultural and Allied Workers of America, af-
filiated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about April 14, 1945, the Union advised the Company that it
represented a majority of the Company's employees and was desirous
of negotiating a collective bargaining agreement. Shortly there-
after, the Company indicated that it would not extend recognition
until the Union has been certified by the Board in an appropriate
unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.,
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 parties are in substantial agreement that the appropriate unit
should consist of all production and maintenance employees of the
Company, including working foremen and working foreladies,2 but
t The Field Examiner reported that the Union submitted 68 application -for-membership
cards, 53 of which bore apparently genuine ouginal signatures of persons appearing on the
Company's pay roll of April 28, 1945, which contained the names of 91 employees in the
appropriate unit, and that the cards were dated in march and April 1945
Candy Workers Union, Local 417, Los Angeles Central Labor Council, and Los Angeles
Industrial Union Council were invited to submit representation evidence , but they failed
to do so
2 The patties are in agreement that such employees do not exercise supervisory authority
within the meaning of our customary definition.
RELIABLE NUT COMPANY 359
excluding temporary employees, office and clerical employees, super-
intendents, and supervisory employees. The parties disagree, how-
ever, as to the following employees :
Tru ek driver and swamper. At the present time, the Company
employs one truck driver who is engaged in the hauling of sundry
items to and from the plant. On occasion the truck driver performs
work in the plant, but it is merely incidental to the loading and un-
loading of the truck. The swamper acts as his helper in the per-
formance of all of the above tasks. The Union urges the exclusion
of the truck driver and the swamper on the ground that their in-
clusion in the unit may raise jurisdictional problems in the future; 3
the Company desires their inclusion. In view of the fact that the
truck driver and swamper are employees whose interests and working
conditions are substantially dissimilar to those of the production and
maintenance employees, and since the parties differ as to their dispo-
sition, we shall exclude them f rom the unit 4
We find that all production and maintenance employees of the Com-
pany, including working foremen and working foreladies, but ex-
cluding the truck driver and swamper, temporary employees, office
and clerical employees, superintendents and all or any other super-
visory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, 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
The Union urges that the date of April 28, 1945, should determine
eligibility to vote in any election herein directed, in view of the termi-
nation of employment of approximately nine persons on the "grave-
yard shift" subsequent to that date, allegedly in order to discourage
union activity. Unless a union chooses to pursue its remedy under
Section 10 of the Act by filing a charge with respect to such a matter,
we do not treat it as a reason for departing from the customary prac-
tice in a representation proceeding. The mere fact that employees
of the Company have been laid off or discharged since April 28
does not, per se, afford any basis for altering the usual eligibility date.
3 At the healing the Union agreed to include the truck driver and swamper in the appro-
priate unit , if they devoted approximately 25 percent of their time to production work.
The record affords insufficient evidence upon which to base a finding as to the amount of
time the truck diiver and swamper devote to production work, we are, therefore, con-
strained to disregard this offer of inclusion.
See Matter of Wilson & Company, Inc , 62 N L R . B. 895 ; Matter of Kingan & Go.
Incorporated, 61 N L R . B 1222.
5It appears that these employees may have been discharged because the Company was
unable to obtain sufficient quantities of corn syrup. Some of the dischargees were offered
reemployment.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company urges, in its brief, the dismissal of the instant peti-
tion, or, in the alternative, the selection of an eligibility date which
will take into consideration the Company's contemplated change in
its manufacturing site and reduction of personnel.6 The Company
requests an eligibility date "not earlier than 10 days after [it] begins
operations at the new location." 7 The Company's lease covering
the building in which it operated at the time of the hearing was due
to expire on June 25, 1945. A company witness testified that efforts,
to renew this lease or to lease other industrial property have been
futile., However, on April 11, 1945, the Company entered into a con-
tract calling for the construction of a plant, 10,000 to 12,000 square
feet in size, to be completed on or about August 1, 1945.s The priority
for the construction of the plant was acquired through the assistance of
the Army, with which the Company is presently under contract. The
size of the plant was limited by the War Production Board to meet
the operational requirements for the completion of an Army contract,
whereby the Company has undertaken to supply the Army with
peanut butter for the first 9 months of 1945. At the hearing, the
Company indicated that the lessor of the "old" plant would extend
its lease "until the new structure is ready for occupancy." The Com-
pany asserts that it intends to transfer to the "new" plant all persons
who are presently employed in the peanut butter department of the
"old" plant.9 However, the candy and salted nuts departments are
either to be sold as a "going business" or completely disbanded.10
It is evident from these facts that the prospective change in the Com-
pany's operations involves no material change in the appropriate
unit, but only a'reduction in its size This is not a case where the em-
ployees retained by the Company will be absorbed into an existing,
larger unit; 11 nor will they be engaged in new or materially dif-
ferent operations or processes.12 The operation is contracting, not
expanding.13
Since the time of the anticipated reduction of the Company's work-
ing force has now arrived, we find it unnecessary to consider Coln-
" At the hearing the Company merely stated its request as to the eligibility date, without
moving for dismissal
The Company anticipates that operations will begin on or about August 1, 1945
s The "new" plant will be approximately 7 miles from the "old " plant , a distance which,
in a city the size of Los Angeles, will evidently not result in any significant alteration of
working conditions . Indeed , the record shows that some employees now travel a distance
of approximately 40 miles to reach the Company ' s plant
0 The Company states that this will involve the retention of approximately 15 employees
out of the 91 presently employed in the entire plant.
10 In the latter case, all equipment and material will be disposed of b^ public or private
sale
11 Cf Matter of Armour & Company, 62 N L R B 1194.
>a All the operations in the Company ' s present plant appear to require substantially the
same skills , and this fact will also be true as to operations in the "new " plant . Cf. Mat-
ter of M. P. Moller, Inc, 56 N. L R. B 16.
13 Cf. Matter of Aluminum Company of America , 52 N. L R B. 1040
RELIABLE NUT COMPANY 361
pany's request with respect to the eligibility date. We hereby deny its
motion to dismiss the petition; for the mere reduction of the Com-
pany's working force, now, presumably, in progress or already accom-
plished, does not militate against a determination of representatives
within the next 30 days. Our usual eligibility requirements will en-
sure that the election hereinafter directed will reflect the desires of
the persons in the Company's employ at the time of the election.
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 represent-
atives for.the purposes of collective bargaining with Bernard Shapiro
and Monroe Shapiro, partners, d/b/a Reliable Nut Company, Los
Angeles, California, 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 supervision of the Regional
Director for the Twenty-first Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
tions 10 and 11, of said Rules and Regulations, among the employees in
the unit found appropriate in Section ITT, above, who were employed
during the pay-roll period immediately preceding the date of this Di-
rection, 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 those em-
ployees who have since quit or been discharged for cause, and have
not been rehired or reinstated prior to the date of the election, to de-
termine whether or not they desire to be represented by Food, Tobacco,
Agricultural and Allied Workers Union of America, C. I. 0., for the
purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.