Y & S Candies, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1977

233 N.L.R.B. 1311 (N.L.R.B. 1977)

Y & S CANDIES, INC.
Y & S Candies, Inc. and Bakery & Confectionery
Workers' International Union of America, AFL-
CIO, Local 289, Petitioner. Case 4-RC-12800
December 19, 1977
DECISION ON REVIEW
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On September 14, 1977. the Acting Regional
Director for Region 4 issued his Decision and
Direction of Election in the above-entitled proceed-
ing in which he directed an immediate election in a
unit of all production and maintenance employees,
quality control inspectors and lab technicians em-
ployed by the Employer at its Lancaster, Pennsylva-
nia, facility, thereby rejecting the Employer's conten-
tion that the petition was premature. Thereafter, the
Employer, in accordance with the National Labor
Relations Board's Rules and Regulations, Series 8, as
amended, filed a timely request for review of the
Acting Regional Director's Decision on the grounds
that he departed from officially reported Board
precedent and made erroneous findings of fact.
By telegraphic order dated October 6, 1977, the
National Labor Relations Board granted the request
for review and stayed the election pending decision
on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
The Employer, a New York State corporation, is
engaged in the manufacture and distribution of
candies. On April 25, 1977, the Employer opened a
new plant in Lancaster, Pennsylvania, for the
purpose of producing licorice candy. With the
opening of that plant the Employer intended to
phase out its obsolescent Brooklyn, New York,
facility and to move some of the equipment from the
Brooklyn location to Lancaster, where it will have
greater production capacity. The Lancaster plant is
intended to operate on a two-shift basis whereas the
Brooklyn operation entailed only one shift. The
Petitioner filed its petition for a unit of production
and maintenance employees at the Lancaster plant
on July 29, 1977, at which time it estimated there
were 35 employees in the unit sought. As of the
August 22 hearing date there were approximately 61
I World Southern Corporation. 215 NL RB 287 (1974); Hearth Craft, Inc.,
222 NLRB 1304 (1976).
employees in the unit in 19 of the 20 ultimate job
classifications. The testimony disclosed that only 15
percent of the available space in the Lancaster
facility was being utilized as of the hearing date and
that the Employer had plans to install 10 additional
machines and to hire a substantial number of
additional employees between Labor Day and
approximately November 1, 1977, when the Brook-
lyn plant was to be completely shut down. By
January 1, 1978, the Employer anticipated having a
production and maintenance work complement of
approximately 185 to 200 employees. Its employee
complement, however, would include only 10 to 15
transfers from the Brooklyn plant. The Regional
Director acknowledged these facts but also stated
that prior to the issuance of his decision on
September 14, 1977, "the Employer will have hired
[the aforementioned] additional employees in the
unit sought by the Petitioner."
The Employer contends that the record does not
support the Regional Director's finding that addi-
tional employees would be hired prior to September
14 and asserts that no such hiring has occurred.
Rather, the Employer contends, and the record
shows, that the 10 machines were to be installed by
approximately November 1, 1977, and would require
an additional 140 employees, rather than 50 to 60 as
estimated by the Regional Director. In these circum-
stances, we find merit in the Employer's contention
that the direction of an election requiring an early
September eligibility date would have unreasonably
disenfranchised a substantial number of employees,
including transferees from Brooklyn, expected to be
hired within a relatively brief period following the
Regional Director's decision.
It is clear that by November I the 10 additional
machines were to be installed and employees were to
be hired and trained to operate them. Inasmuch as
the approximate date for the installation of the 10
machines and hiring of employees to operate them
has now passed, we find that a substantial and
representative complement of the Employer's ulti-
mate work force now exists which can exercise the
franchise extended by our Act.'
Accordingly, we hereby remand the case to the
Regional Director for the purpose of conducting an
election pursuant to the Decision and Direction of
Election, except that the payroll period for determin-
ing eligibility shall be that immediately preceding the
issuance date of this Decision on Review. [ Excelsior
footnote omitted from publication.]
233 NLRB No. 192
1311