Capital Bakers, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1967

168 N.L.R.B. 904 (N.L.R.B. 1967)

904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Capital Bakers, Inc. and Food Drivers, Salesmen,
Dairy and Ice Cream Workers , Local No . 765, af-
filiated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America , Petitioner . Case 4-RC-6729
December 14,1967
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer William
Draper Lewis, Jr. Following the hearing and pur-
suant to Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations and Statements
of Procedure, Series 8, as amended, and by
direction of the Regional Director for Region 4, this
case was transferred to the National Labor Rela-
tions Board for decision. Both the Employer and
the Petitioner have filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na=
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pol-
icies of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of certain employees of
the Employer within the meaning of Sections
9(c)(1) and 2(6) and (7) of the Act.
4. The Employer operates five bakery plants in
Pennsylvania. Bakery products are distributed by
truck at both the wholesale and retail level from
four of these plants. In addition, the Employer
operates four sales stations in Pennsylvania,
another in Delaware, and one in Maryland. All of
the plants and sales outlets are located within 85
miles of Harrisburg, Pennsylvania, where the Em-
ployer maintains its general offices.
The Petitioner seeks to represent a unit limited
to certain sales and sales-related employees at the
Employer's Williamsport plant, including all
wholesale and retail driver-salesmen, transport
drivers, garage employees, garage janitor, solicitors,
surplus store salesmen, and route supervisors, but
excluding sales clerical employees, shippers, office
clerical employees, professional employees, guards,
and supervisors as defined in the Act. This is the
very same unit found appropriate by the Regional
Director in 1963. Capital Bakers, Inc., Case
4-RC-5267.1 Inasmuch as the present parties were
the same as those in the earlier hearing, the official
records of that hearing, including the transcripts
and exhibits, were, as the result of a stipulation,
received into evidence for consideration herein.
The Employer maintains that the single-plant sales
unit is inappropriate and should include the named
employees plus sales clericals and shippers at all of
its plants. The Employer argues that the unit sought
is based solely upon the extent of organization
which, as a controlling factor in the Board's deter-
mination, is prohibited by the Act. There appears to
be no bargaining history for the employees in the
unit proposed by the Petitioner.
The Employer also relies upon a recent Third
Circuit decision, in which it was a party, wherein
the court refused to enforce a bargaining order
which found a single-plant production and main-
tenance unit appropriate in the Employer's Paxton
Street plant, Harrisburg, Pennsylvania. N.L.R.B.
v. Capital Bakers, Inc., 351 F.2d 45 (C.A. 3, 1965).
The court noted that in 1961 the Board had found,
on the basis of a stipulation on the record, a mul-
tiplant production and maintenance unit ap-
propriate. Capital Bakers, Inc., Case 4-RC-4762
(not published in NLRB volumes). The court also
pointed out that although a driver-salesman unit at
a single plant had been found inappropriate in 1956
(Case 4-RC-3056), a similar unit at the Williams-
port plant was found appropriate in 1963 (Case
4-RC-5267).2 The court, citing Metropolitan Life
Insurance Company, 3 refused to enforce the bar-
gaining order supporting the single-plant production
and maintenance unit on the ground that the Board
did not adequately explain its reasons for its change
in policy, sometime in 1961, as a result of which it
found, as appropriate, these single-plant units of
this Employer.
The essential facts are not in dispute. The Em-
ployer operates five baking plants and six distribu-
tion centers within an 85-mile radius of Harrisburg,
Pennsylvania, where its general offices and two of
its plants are located. The Employer has some 450
employees employed at all locations. The Williams-
port plant, at the outer rim of the 85-mile radius
from Harrisburg, has some 75 employees, of whom
39 or 40 are employed in its sales department and
34 as driver-salesmen. Wholesale and retail home
delivery drivers operate out of five of the six plants.
, The election directed by the Regional Director was held on April 11,
1963, but the Union did not receive a majority of the valid votes cast.
2 This is, of course, the very same unit petitioned for in the present case.
3 380 U.S. 438.
168 NLRB No. 119
CAPITAL BAKERS , INC. 905
None of the plants produces a complete line of
baked goods distributed by the Employer. Thus,
each plant shuttles its production specialty on a
daily basis to the principal Harrisburg plant for
redistribution to the other plants. Two trips are
made daily by transport truck between Harrisburg
and Williamsport supplying the latter with much of
the baked goods distributed by it. Conversely,
bread products made at Williamsport are shuttled
on a daily basis to Harrisburg for distribution to all
of the Employer 's locations . Policy in regard to
production and sales is made by the Employer's ex-
ecutive committee and communicated to all loca-
tions by various memoranda . Policy decisions or
changes are further implemented through biweekly
conferences held at Harrisburg and attended by the
various location managers as well as by weekly in-
spection trips made to the plants by representatives
of the Employer 's executive committee. Each plant
has a separate local bank account for the deposit of
sales receipts , although only the general office per-
sonnel can draw checks on the account . Generally,
each plant operates under two managers ,4 one for
production and one for sales, and these managers
make purchases of only miscellaneous supplies.
With this exception , all purchasing is done by the
general office at Harrisburg . Similarly , the general
office maintains personnel , payroll, and social
security records of all employees at all locations,
and makes up their paychecks . General labor pol-
icy, rates of pay , hours of employment , insurance
benefits , and other fringes are fixed by the execu-
tive committee and implemented by the Employer's
general offices in Harrisburg.
The record also shows that the Williamsport
plant is geographically isolated from the other loca-
tions of the Employer. None of the sales routes of
the Williamsport plant is contiguous with those
from other locations except for a relatively small
area in Shamokin , Pennsylvania . There is no signifi-
cant interchange between the employees at Wil-
liamsport and those at other locations.-'
Furthermore , the employees at Williamsport are lo-
cally recruited . They are interviewed and effective-
ly hired by the plant manager, although his decision
is subject to review and approval by the executive
committee at Harrisburg . The record discloses that
approximately 50 percent of the employees begin
their actual employment before the executive com-
mittee gives its approval and that, in practice, the
committee seldom overrules the decision of the
local manager . The manager , moreover, is vested
with the discretion to discharge employees, again
subject to approval by Harrisburg. There is no
evidence , however , that in practice the decision of
a manager to discharge has been reversed in Har-
risburg . The manager also assigns the drivers to
their various routes . Furthermore, the employees
receive their day-to-day supervision from the plant
manager or his assistant . Although the fringe
benefits received by employees are uniform at all
locations , the wage rates received by, the driver-
salesmen vary between locations . Moreover, the
Williamsport driver-salesmen work a 6 -day week,
while driver-salesmen at some of the Employer's
other locations work only 5 days . There is no bar-
gaining history for either a unit restricted to Wil-
liamsport or a more comprehensive group, and no
labor organization seeks to represent a multiplant
unit.
The Board has held that "a single plant unit is
presumptively appropriate absent a bargaining his-
tory in a more comprehensive unit or a functional
integration so severe as to negate the identity of a
single plant unit . 11 6 Thus even where there was sub-
stantial centralization of authority and considerable
product integration between two plants, the Board
has held that one of the two plants could constitute
a separate appropriate unit if the requested plant
retained a substantial degree of autonomy .? Under
its broad delegation of authority, the Board, in
determining whether such a unit is appropriate, has,
with court approval, traditionally looked to such
factors as the community of interest among the em-
ployees sought to be represented ; whether they
comprise a homogeneous , identifiable , and distinct
group ; whether they are interchanged with other
employees ; the extent of common supervision; the
previous history of bargaining; and the geographic
proximity of the various parts of the, employer's
operation .8 Moreover, it is well settled that there is
more than one way in which employees of a given
employer may appropriately be grouped for pur-
poses of collective bargaining.9
In recent years the Board has reexamined its unit
policies in the insurance and in the retail chain in-
dustry and in each instance modified prior rules and
found smaller units appropriate . In Metropolitan
Life Insurance Company, (Woonsocket, R.I.), 10
the Board , after extensive evaluation of the tradi-
4 The record in Case 4-RC-5267, stipulated into evidence in the
present case , discloses that at each plant, except Williamsport , there is a
production manager and sales manager. At Williamsport , the same
manager was in charge of both production and sales . This earlier record
also indicates that in the future Williamsport was to have two managers in
conformity with the other plants . The present record does not make clear
whether this separation of supervisory functions had in fact been carried
out during the period between the two hearings.
5 The only recent evidence of Williamsport employees transferring to
other locations was a temporary transfer for 3 weeks of two driver-
salesmen to Harrisburg for training purposes . The record showed only
one instance of a transfer of a driver-salesman to the same position at
another location
° The Black and Decker Manufacturing Company, 147 NLRB 825,
828. See also Welsh Co., 146 NLRB 713, 715.
The Black and Decker Manufacturing Company, supra
s See, for example , May Department Stores Company v. N.L.R.B., 326
U.S. 376, 380.
° See, for example , General Instrument Corp v. N.L.R.B. , 319 F 2d
420, 422, 423, (C A. 4), cert. denied 375 U S. 966 , Mountain States
Telephone and Telegraph Co. v. N.L R B., 310 F 2d 478, 480 , (C.A 10)
10 156 NLRB 1408
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional factors speaking to appropriateness, affirmed
its prior abandonment of employerwide or state-
wide units and concluded that the district office is
the insurance industry's analogue of the single
manufacturing plant, which the Act recognizes as
presumptively valid. Similarly, in Sav-On Drugs,
Inc., 11 the Board modified its prior rule that the ap-
propriate unit in retail chain operations must be
coextensive with the employer's administrative
division or the geographical area involved. Here the
Board found a single store to be an appropriate unit,
and concluded that its prior policy "has
overemphasized the administrative grouping of
merchandising outlets at the expense of factors
such as geographic separation of the several outlets
and the local managerial autonomy of the separate
outlets ...."12 The Board affirmatively stated that
it would apply to retail chain operations the same
unit policy that it applies to multiplant enterprises
in general, that is, that it would determine the ap-
propriateness of a proposed unit confined to one of
two or more retail establishments in a chain in the
light of all the relevant circumstances of the particu-
lar case.13
Inasmuch as the Employer in the present case is
not only a multiplant organization engaged in the
production of certain goods but is also very sub-
stantially engaged, on a plant or local basis, in the
distribution of such goods at both the wholesale and
retail level, the principles stated in Save-On Drugs,
and the cases which followed it, are particularly ap-
propriate for consideration herein. There is no more
reason to withhold application of this policy to the
Employer's operations because formerly we applied
a different policy than there was reason to refrain
from changing the basic policy to be applied to the
retail store industry. We are satisfied that the
freedom of choice of this one cohesive group of em-
ployees to have or not to have a bargaining
representative should not be dependent upon the in-
terest or lack of interest in such representation on
the part of other employees in separated, and in
somewhat distant, plants and distribution centers
serving other markets.
There are, concededly, a number of factors which
would appear to militate in favor of the appropriate-
ness of a multiplant unit. Thus, there is a degree of
functional integration between the central office
and the various plants operated by the Employer, as
evidenced by the fact that the central office deter-
mines policy for all plants respecting production
and sales as well as employment practices, includ-
ing rates of pay, hours of work, insurance benefits,
and other fringes; by the fact that all personnel,
11 138 NLRB 1032.
12 138 NLRB at 1033.
13 For some more recent cases , in which the Sav-On Drugs principles
have been adopted and implemented , see Lou De Young's Market Basket,
'Inc., 159 NLRB 854, The Wm H. Block Company, 151 NLRB 318,
payroll, and social security records are maintained
by the central office; and by the fact that all
purchasing is done by the central office. In addition,
there is a supply integration among the plants in that
different classes of bakery products produced by
the various plants are distributed to each of the
other plants so that each may sell a complete line of
the Employer's wares.
On the other hand, as in Save-On Drugs and re-
lated cases, the record here does not disclose the
degree of functional integration necessary to defeat
the separate identity of the Williamsport plant. We
note, initially, that the local plant managers, includ-
ing the Williamsport manager, possess considerable
autonomy. They may effectively hire or discharge
employees. They effectively see to the day-to-day
operation of the plant. They oversee the general
sales effort at both the retail and wholesale level,
the ordering of goods to be sold, the arrangement
for transportation of such goods, the collecting and
reporting of sales receipts, the assignment of sales
duties and sales routes as well as to lesser functions,
all of which permit the plant to operate as a separate
and going production and sales force. In addition,
of course, there is a wage differential between the
driver-salesmen at Williamsport and those at other
plants, and there is also a difference in the number
of days per week worked by the driver-salesmen at
this plant in comparison with such salesmen at
other plants. In the production operation, each
plant produces its own products completely,
without assistance or performance at any stage
from other plants, so that in this respect the plants
are independent rather than integrated. The sub-
stantial autonomy of the Employer's Williamsport
sales operation justifies the conclusion that this par-
ticular sales organization is a distinct and separate
economic unit. In view thereof, and in light of the
geographical separation of the Williamsport plant
from the Employer's other plants, the lack of any
significant employee interchange between this and
other plants, the absence of any bargaining history
at any of the Employer's facilities, and the fact that
no labor organization is seeking to represent em-
ployees on a broder basis, we find that a separate
unit of the sales-related employees at the Em-
ployer's Williamsport plant is appropriate. This'
unit, we believe, conforms fully with the provisions
of the Act, and, in our opinion, assures to em-
ployees the fullest freedom in exercising their rights
guaranteed under the Act. 14
We find no merit in the Employer's contention
that such a finding is based solely on the extent of
Primrose Super Market of Salem , Inc., 148 NLRB 610, affil . 58 LRRM
2863 (C.A 1), cert. denied 382 U.S. 830, motion for reconsideration de-
nied 353 F . 2d 675 (C A. 1); Piggly Wiggly California Company, 144
NLRB 708.
14 Sun Drug Co., 147 NLRB 669, enfd 359 F.2d 408 (C.A. 3).
CAPITAL BAKERS , INC. 907
union organization and, therefore, contrary to Sec-
tion 9(c)(5) of the Act. It is now well established
that Section 9(c)(5) was intended only to preclude
the Board from basing its unit determination solely
on extent of organization when other relevant
criteria of appropriatness are absent. It was not in-
tended either to invalidate units which qualify under
other tests of appropriateness or to preclude
reliance on this factor as one of the factors militat-
ing in favor of the proposed unit.15
The composition of the Williamsport sales unit
remains to be determined. Although excluded by
the Petitioner, the Employer contends that shippers
and sales clericals should be included in the unit.
There are two shippers. Their duties consist of
packing and inspecting the baked goods after they
leave the production line; they do not load the
packed goods onto the trucks. Since they have no
connection either with the delivery or sale of the
Employer's product and work entirely within the
plant, we find that they have little community of in-
terest with the other employees in the unit herein
found appropriate. We therefore exclude them.
There are also two sales clerical employees who
work along with two or three clericals in the office
adjacent to the manager's office. One receives
money and account slips from the driver-salesmen
and keeps records of the accounts; the other
receives orders for baked goods from the driver-
salesmen and compiles and forwards the orders to
Harrisburg. From the record as a whole, we find
that the two employees in this classification are of-
fice clerical employees and we exclude them. 16
5. Accordingly, we find that the following em-
ployees of the Employer at its Williamsport,
Pennsylvania, plant, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
All wholesale and retail driver-salesmen, trans-
port drivers, garage employees, garage janitor,
solicitors, surplus store salesmen, and route su-
pervisors, at the Employer's Williamsport,
Pennsylvania, branch, but excluding sales cler-
ical employees, shippers, office clerical em-
ployees, professional employees, guards, and
supervisors as defined in the Act.
[Direction of Election17 omitted from publication.]
'IN L.R B. v. Metropolitan Life Insurance Co, 380 U .S. 438,
Metropolitan Life Insurance Co., (Woonsocket, R.I ), 156 NLRB 1408,
fn, 20.
16 Grand Forks Grocery Co., 121 NLRB 1271.
i7 An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 4 within 7 days after the date of this Decision and
Direction of Election. The Regional Director shall make the list available
to all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Excelsior Underwear
inc., 156 NLRB 1236.