American Bakeries Co.

National Labor Relations Board - Board Decisions

Mar 10, 1953

103 N.L.R.B. 434 (N.L.R.B. 1953)

434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possibility , however , that Wynne may sustain a disabling recurrence of his injury,
I shall recommend that the Board retain jurisdiction in this case by expressly
reserving the right to modify, as to Wynne, any back-pay and reinstatement pro-
visions that may become necessary by reason of change in his physical condition
and to make such supplements thereto as may hereafter become necessary in
order to define or clarify their application to circumstances not now appearing.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case , I make the following :
CONCLUSIONS OF LAW
1. International Woodworkers of America , CIO, is a labor organization admit-
ting to membership employees of the Respondent.
2. By discriminating in regard to the hire and tenure of Roy E. Fulcher and
Lee A. Wynne, thereby discouraging membership in International Woodworkers
of America , CIO, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( a) (1) and (3) of the Act.
3. By assaulting and incapacitating Lee A. Wynne, and by threatening its
employees with loss of employment should they engage in and continue to engage
in concerted collective-bargaining and union activities , Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By the above unfair labor practices , Respondent has interfered with,
restrained , and coerced its employees in the rights guaranteed in Section 7 of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent did not independently interfere with, restrain , and coerce its
employees by questioning its employees concerning their membership in and
activities on behalf of the Union.
7. Respondent did not increase or make more onerous the workload of Roy E.
Fulcher and Lee A. Wynne and did not deny Roy E . Fulcher regular employment
because either of them joined or assisted the Union or engaged in concerted
activities for purposes of collective bargaining or other mutual aid and protection.
[Recommendations omitted from publication in this volume.]
AMERICAN BAKERIES COMPANY ( MERITA BAKERY ) and EMPLOYEES OF
AMERICAN BAKERIES COMPANY ( MERITA BAKERY ), PETITIONER and
BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF
AMERICA , LOCAL No. 380, AFL. Case No. 5-RD-75. March 10,1953
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Louis S. Wallerstein, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
103 NLRB No. 53.
AMERICAN BAKERIES COMPANY 435
2. The Petitioner asserts that the Union is no longer the bargaining
representative of the employees of the Employer as defined in Section
9 (a) of the Act. The Union, a labor organization, is the currently
recognized representative of the Employer's employees, who are part
of a multiemployer bargaining unit.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following reasons
The Petitioner seeks decertification of the Union in a unit composed
of the Employer's production and maintenance employees. The Peti-
tioner's principal contentio a relates to an alleged defunctness of the
Union at the Employer's plant, in reliance upon which the Petitioner
would surmount two barriers, an existing contract and an existing
multiemployer bargaining unit, either of which would, under normal
circumstances, operate as a. bar to this proceeding. The Employer
contends among other things 1 that the Union is not defunct and that,
accordingly, the existing contract bars this proceeding, and that the
Petitioner's proposed unit is too limited in scope.
The Employer and the Rainbo Bread Company, herein called
Rainbo, are separate companies engaged in the commercial production
and sale of bread and cakes at Roanoke, Virginia.
The Board, as recently as June 25, 1952,2 found that "... for a
period of approximately two years the Employer and Rainbo have
clearly evinced an intention to bargain jointly with respect to their
employees and have considered themselves bound by the results of their
joint negotiations." The Board further stated that ". . . the [Em-
ployer and Rainbo] constituted an informal employer association
similar to those which we have frequently recognized in the past...."
On June 28, 1952, the contracts between the Union and the Employer,
and the Union and Rainbo terminated. Negotiations were resumed
with the Union on a joint basis in early July 1952 and culminated in
the execution of separate but identical contracts on July 12, 1952.
These contracts, which were made retroactive to June 29, 1952, will
terminate on May 1, 1954. The instant petition was filed on July 25,
1952.
The Union is an amalgamated local, representing the employees of
both the Employer and Rainbo. The defection within the Union of
the Employer's employees apparently began sometime in the summer
1 The Employer contends that the Petitioner is fronting for the United Construction
`workers, a noncomplying labor organization . Although there is some evidence to support
this contention , we find it unnecessary to decide that question in view of our Order , infra,
that the instant petition be dismissed for the reasons hereinafter set forth
'American Bakeries Co., 5-RC-1085 ( unpublished ). The International Brotherhood of
Teamsters , Local 171, AFL, sought a unit of all inside employees of the Employer. The
petition was dismissed because the unit sought was too limited in scope, the appropriate
unit being multiemployer in nature and encompassing Rainbo's employees.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of 1951. The record clearly establishes that since at least January
1952, the Employer's employees have not been members of the Union,
have not attended any union meetings, have not taken any part in the
negotiations preceding the execution of the July 12 contract, and
were not present at the contract ratification meeting. All officers of
the Union, elected in January 1952, are employees of Rainbo. Notices
of regular union meetings were posted at the Employer's plant through
November 1951, but there is no proof that notices were posted there-
after. As to the ratification meeting, there was conflicting testimony
as to whether a notice of such meeting had been posted at the Em-
ployer's premises. No employee of the Employer has authorized a
checkoff of dues pursuant to the July 12 contract. Neither a union
steward nor a grievance committee has been functioning at the Em-
ployer's plant and the Union's business agent admitted that he has had
no direct contact with the Employer's employees. The employees, on
three separate occasions ,s advised the Employer that they were no
longer affiliated with the Union and requested the Employer not to
enter into any agreement in their behalf with the Union. The em-
ployees also notified the Union on July 10, 1952, that they no longer
desired the Union to act as their bargaining representative.
Notwithstanding the above facts indicating defunctness on the part
of the Union, the latter has negotiated contracts for the employees of
both the Employer and Rainbo from which all employees received
benefits. The Union still considers itself to be the bargaining repre-
sentative of the Employer's employees. There is evidence that the
Union's representatives visited the Employer's plant on occasion both
before and after the signing of the July 12 contract. Although the
Union apparently was suspended temporarily by its international,
it presently is in good standing and its charter has not been lifted.
Moreover, the Union appears to be actively functioning at Rainbo's
plant.4
With all these circumstances in mind, we find that, as it is able to
administer its contracts, the Union is not defunct at the Employer's
plant .5 In so finding, we rely particularly upon the fact that the
Union has, as recently as July 1952, engaged in negotiations with the
Employer and Rainbo which culminated in contracts covering the
a On February 15, 1952 , 65 employees signed a petition which was later submitted to the
Employer , advising the Employer of the employees ' desires. On July 12, 1952, the Em-
ployer received a letter from the employees ' committee . On July 14, 1952, the employees'
committee called on the Employer 's general manager. On each occasion the employees
communicated their desire to rid themselves of the Union as their bargaining representative.
4 Of the 50 employees at Ralnbo , 30 are dues-paying members of the Union . A union
grievance committee and shop steward are both active at Rainbo 's plant.
5 L. 0. Koven cf Brothers , Inc., 77 NLRB 1253; Maurice A. Knight Sons' Co., 84 NLRB
816; Harrisburg Railways Company, 94 NLRB 1028 ; Acme Quality Paints , Inc., 95 NLRB
1025; Allied Container Corporation , 98 NLRB 580; Phoenim Manufacturing Co., 98 NLRB
803; Sylvania Electric Products , Inc., 100 NLRB 357; Marshall Field cE Co ., 101 NLRB
512.
AMERICAN BAKERIES COMPANY 437
instant employees. We also rely upon the Union's apparent will-
ingness to represent the Employer's employees,e and the Employer's
recognition of the Union as the bargaining representative of its em-
ployees.7 Furthermore, in view of the foregoing facts, the Union's
active existence at Rainbo is an indication that it is not a defunct
organization, and that it is capable of functioning at the Employer's
plant."
In view of our determination that the Union is not defunct at the
Employer's plant, we find that the existing contract which will not
expire until May 1, 1954, is a bar to the present petition. We further
find that the petition must also be dismissed upon the ground that the
unit sought herein is inappropriate. As already noted, the multi-
employer bargaining pattern encompassing the Employer and Rainbo
continued into July 1952, resulting in the negotiation of separate but
identical contracts. Neither the Employer nor Rainbo has evinced
an intent to pursue a course of individual action with regard to its
labor relations. Instead, their continued bargaining together mani-
fests a desire to be bound by group rather than by individual action.
Accordingly, we find that the proposed unit, encompassing solely
the employees of the Employer, is too limited in scope.9
For the reasons above stated, we shall dismiss the petition.
Order
IT IS IEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
MEMBER PETERSON, concurring :
I join in the Board's conclusion that the instant petition be dis-
missed, but I do so on the ground that the Petitioner is "fronting"
for the United Construction Workers, a noncomplying labor or-
ganization.
The record shows that between July 15 and 19, 1952, before the
filing of the instant petition on July 25, 1952, a strike was conducted
by the UCW at the Employer's plant. The Petitioner, a group of
the Employer's employees, was led by Daniel B. Hodges who, as
chairman of the employees' committee, filed the instant petition.
Hodges was an active participant in that strike, both on the picket
line and as a member of a strike settlement committee. During this
period, Hodges signed a UCW authorization card and spoke with
UCW representatives in regard to the incumbent Union's status at
the Employer's plant. Moreover, Hodges requested and obtained
e Pacific-Gamble Robinson Co., 89 NLRB 293; see Baker Ice Machine Co., 86 NLRB 385.' Maurice A. Knight Sons' Co., supra.
$ Pacific-Gamble Robinson Co., supra.
Sullivan Mining Company, et al., 101 NLRB 1366.
257965-54-vol. 103-29
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
blank decertification forms from a UCW representative. Even after
the filing of the instant petition, the UCW contacted the Employer
and claimed the right to negotiate with the Employer on issues in-
volving the latter's employees. On July 11, 1952, the UCW's regional
office apparently typed a letter for Hodges to the Employer's manager.
In denying that he received assistance from the UCW in the execution
of the petition, Hodges was an evasive and unreliable witness, his
testimony a web of contradictions and confusions.
While no one of the above facts standing alone constitutes clear
proof that the Petitioner is "fronting" for the UCW, I believe that
in the aggregate they give rise to a strong inference of "fronting."
At the very least, the evidence plainly was sufficient to shift to the
Petitioner the burden of going forward with additional evidence to
rebut such inference and to establish the fact that the Petitioner was
acting independently of the UCW.10 This failure to proceed in this
respect may be taken as indicative of an inability to do so. Ac-
cordingly, I find from the record as a whole that the Petitioner is
acting as a "front" for the UCW, and agree with my colleagues that
the petition herein be dismissed 11
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
30 R. J. Reynolds Tobacco Co ., 83 NLRB 348.
n See Knife River Coal Mining Co ., 91 NLRB 176 ; Hammond Bag & Paper Co., 94 NLRB
905; Wood Parts, Inc., 101 NLRB 445; . N. L. R. B. v. Happ Bros. Co., Inc., 196 F. 2d
195 (C. A. 5).
NATIONAL SHOES, INC., AND NATIONAL SYRACUSE CORPORATION and
UNTIED WHOLESALE, RETAIL AND DEPARTMENT STORE UNION OF
AMERICA, CIO, LOCAL 586. Case No. 3-CA -566. March 11, 1953
Decision and Order
On November 25, 1952, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-.
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Murdock and Peterson].
103 NLRB No. 58.