Brewster-Ideal Chocolate Co.

National Labor Relations Board - Board Decisions

May 1, 1943

49 N.L.R.B. 366 (N.L.R.B. 1943)

In the Matter of BREWSTER-IDEAL CHOCOLATE- Co. and UNITED GAS,
CODE & CHEMICAL WORKERS OF AMERICA, C. I. O.
Case No. R-5150.Decided- May -1, 1943
Messrs.. Alex W. Paton and Albert E. Brewster, of Newark, N. J.,
for the Company.
Mr. Samuel L. Rotiibard, of Newark, N. J., for the United.
Buitenkant & Cohen, by Mr. Jacques Buitenkant, of New York City,
for the A. F. L.
Mr. William C. Baisinger, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Gas, Coke & Chemical Workers
of America, C. I. 0., herein called the United, alleging that" a question
affecting commerce had arisen concerning the representation of em-
ployees of Brewster-Ideal Chocolate Co., Newark, New Jersey, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Jack Davis, Trial
Examiner. Said hearing was held at Newark, New Jersey, on April
'8, 1943. The Company, 'the United, and Candy & Confectionery
Workers, Local Union No. 452, Greater New York, affiliated with
Bakery & Confectionery Workers International Union of America,
A. F.,L., herein called the A. F. L., appeared, participated, and were
afforded full opportunity to be heard, to examine, and cross-examine
witnesses, and to introduce evidence bearing upon the issues.' The
I We find no merit In the contention made by the A. F. L. that the petition filed herein
should be dismissed on the grounds that the United does not have jurisdiction to organize
employees in the confectionery manufacturing industry , in which the Company is engaged.
Cf. Matter of McLouth Steel Corporation and Local 174, International Union, United Auto-
mobile Workers of America, affiliated with the Congress of Industrial Organizations, 30
N. L. R. B . 1000; Pueblo Gas and Fuel Co. v. N. L. R B., 118 F. (2d) 304 (C. C. A. 10),
enforcing 23 N L. R. B. 1028; Matter of Rathbbrne, Hair & Ridgway Company and Ware-
house and Distribution Workers Union, Local 208, I. L. W. U., affiliated with C. 1. 0., 45
N. L. R. B. 612.
49 N. L. R. B., No. 46.
366
BREWSTE'R-IDEAL CHOCOLATE CO. 367.
Trial Examiner's rulings made at the hearing are free from'prejudicial
error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Brewster-Ideal Chocolate Co. is a New Jersey corporation engaged
at Newark, New Jersey, in the manufacture of chocolate, cocoa, and
confectionery products. During the year 1942, the Company used raw
materials consisting of chocolate, cocoa beans, milk powder, corn
syrup, peanuts, raisins, and vanilla beans, valued at approximately
$500,000, of which 90 percent was purchased and shipped to the Com-
pany from points outside the State of New Jersey. During the same
period, the Company sold in excess of $1,000,000 worth of finished
products, of which approximately 60 percent was sold and transported
to purchasers outside the State of New Jersey. The Company admits
that it is engaged in commerce within the meaning of the National
Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Gas, Coke & Chemical Workers of America is a labor organi-
zation affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the Company.
Candy & Confectionery Workers, Local Union No. 452, Greater
New York, affiliated with Bakery &'Confectionery Workers Interna-
tional Union of America, is a labor organization affiliated- with the
American Federation of Labor, admitting to membership, employees
of the Company.
III. THE QUESTION CONCERNING REPRESENTATION -
The Company has refused to recognize the United as the exclusive
bargaining representative of the employees in an alleged appropriate
unit because of the existence of a closed-shop contract between the
A. F. L. and the Company.
- A statement of the Regional Director, introduced into evidence at
the hearing, indicates that the United represents a substantial number
of employees in the unit hereinafter found appropriate.2
The report of the Regional Director states that the United submitted 55 application-
for-membership cards dated between January and March ,l943 bearing apparently genuine
signatures of persons whose names appear on the Company 's pay roll of March 5, 1943,
which contains the names of 91 employees in the unit alleged to be appropriate by the
United . The report further states that the A F. L relies on its contract with the Company
to substantiate its m epresentation claim.
368 DECISIONS OF NATIONTAL LABOR `RELATIONS BOARD
The contract referred to above was executed on September 16, 1940,
effective as of September 4, 1940, and continuing, by its terms, for 3
years and from year to year thereafter "unless at least 15 days prior
to September 4 of any year either party gives written notice to the
other that it does not desire to continue this agreement . . ." This
contract covers all employees of the Company exclusive of "those em-
ployed in office, sales; or supervisory capacity." The contract further
provides for revision of wages as of September 4, 1942. The record
discloses that the A. F. L. did negotiate an increase in wages on Sep-
tember 4, 1942. The A. F. L. contends that in view of said provision,
and the negotiation of wages pursuant thereto, the contract is,a bar
to a present determination of representatives. We find no merit in
this contention.
We have frequently held that a contract-for an unreasonable length
of time and which has been in effect for a year or more does not con-
stitute a bar to an investigation and certification of representatives.
At the date of the hearing, the contract of September 4, 1940, had been
in effect for more than 21/, years and had only about 5 months to run.
We, accordingly; find that the contract entered into on September 16,
1940, between the Company and the A. F. of L. does not constitute a
bar to a present determination of representatives.3
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
We'find in accordance with the stipulation of the parties that all
employees of the Company employed at its Newark, New Jersey, plant,
including maintenance mechanics, firemen', and,,'iAvatchmen, but ex-
cluding supervisors, office and sales employees,, constitute d, unit ap-
priate 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 eni-
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. '
x See Matter of Wichita Union Stockyards Company and Packinghouse Workers Organ-
izing Committee, Local No. 94, affiliated with the C. I. 0., 40 N. L. R. B . 369, and cases cited
therein.
BREWSTER-IDEAL CHOCOLATE CO.
DIRECTION OF ELECTION
369
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Brewster-Ideal
Chocolate Co., Newark, New Jersey, 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 Second Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Article
III, Section 10, of said Rules land Regulations, 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, and including employees in the armed forces of the United States
who present themselves in person at the polls, but excluding employees
who have since quit or been discharged for•cause, to determine whether
they desire to be represented by United Gas, Coke & Chemical Workers
of America, C. I. 0., or by Candy & Confectionery Workers, Local
Union No. 452, Greater New York, affiliated with Bakery & Confec-
tionery Workers International Union of America, A. F. of L., for the
purposes of collective bargaining, or by neither.