Caskey Baking Co.

National Labor Relations Board - Board Decisions

Nov 18, 1948

80 N.L.R.B. 374 (N.L.R.B. 1948)

In the Matter of CASKET BAKING COMPANY, EMPLOYER and DRIVERS,
CHAUFFEURS, HELPERS, GARAGE EMPLOYEES AND WAREHOUSEMEN,
LocAL UNION No. 992, A. F. L., PETITIONER
In the Matter of CASKEY BAKING COMPANY, EMPLOYER and BAKERY
AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA,
A. F. L., PETITIONER
Cases Nos. 5-RC-127 and 5-RC-128, respectively.-Decived November
18, 1948
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed , a consolidated hearing was held
before a hearing officer of the National Labor Relations Board. The
hearing officer 's rulings made at the hearing are free from prejudicial
, error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in the case , the National Labor Relations
.Board finds:
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.'
2. The labor organizations named herein claim to represent em-
ployees of the Employer.
3. A 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 theAct2
* Chairman Herzog and Members Houston and Gray.
i The Employer 's bakery is in Hagerstown , Maryland . Fifty percent of the Employer's
annual purchases , valued at approximately $250,000, and 43 percent of the Employer's
annual sales , valued at approximately $420,000, are outside the State of Maryland. The
Employer distributes its finished products in Maryland , West Virginia , Virginia , and Penn-
sylvania . Matter of Phoenix Pie Company, 79 N. L. R. B. 754 ; Matter of Superior
Bakery, 78 N. L R. B. 1172 Cf. Matter of Fehr Baking Company, 79 N. L. R. B. 440;
Matter of Sta-Kleen Bakery, Inc., 78 N. L. R. B. 798.
2 Local No . 842, United Automobile, Aircraft and Agricultural Implement Workers of
America, UAW-CIO, herein called the UAW-CIO, intervened during the hearing, claiming
an interest in the proceedings based on ( 1) current representation among the employees
80 N. L. R. B., No. 82.
374
CASKEY BAKING COMPANY 375;
4. Drivers, Chauffeurs, Helpers, and Garage Employees and Ware-
housemen, Local Union No. 992, A. F. L. (the Petitioner in Case No.
5-RC-127), herein called the Drivers, seeks a unit of all driver-
salesmen , including extra drivers, the transport man, and the mechanic
and his helper, but excluding all bakery production and maintenance
employees, clerical and professional employees, guards, executives,
and supervisors as defined in the Act.
Bakery and Confectionery Workers International Union of Amer-
ica, A. F. L. (the Petitioner in Case No. 5-RC-128), herein called the
Bakery Workers, seeks a unit of the Employer's production and main-
tenance employees engaged in the manufacture of bakery products,
including dough mixers, sponge mixers, machine operators, bakers,
oven operators, oven dumpers, loader and helper, shipping clerks,
stockroom man and janitors, but excluding driver-salesmen, extra
drivers, the transport man, the mechanic and his helper, clerical and
professional employees, guards, executives and supervisors as defined
by the Act.
The UAW-CIO asserts that a single unit of all production and
maintenance employees, including driver-salesmen, is the appropri-,
ate unit for collective bargaining.
The Employer contends that its driver-salesmen are independent
contractors and, therefore, not employees of the Employer to be in-
cluded in any bargaining unit. The Employer, however, contends
that if the Board finds driver-salesmen to be employees of the Em-
ployer, a single unit including all production and maintenance em-
ployees and driver- salesmen is the appropriate unit.
To distribute its bakery products, the Employer employs 14 driver-
salesmen and 2 extra driver-salesmen for relief purposes. Their
duties include soliciting business for the Employer and selling and
delivering the Employer's products to retail stores in Maryland, Vir-
ginia, West Virginia, and Pennsylvania. They work under the gen-
eral supervision of the sales manager. Each driver-salesman covers
a specific geographical area. Driver-salesmen use the Employer's
trucks and equipment to make the sales and deliveries. They pick up
the Employer's products in the morning at the bakery or at the loading
station, and in the evening turn in the money collected and the unsold
bakery products. The driver-salesmen work away from the bakery
and have no regular work contacts with the bakery production and,
maintenance workers. They enjoy separate seniority rights, have
involved and (2) an assignment to it of an existing contract between the Employer and
United Retail and Wholesale Department Store Employees of America, C. I. 0., herein
called the Retail Clerks , a former bargaining agent. This contract expires October 23,
1948 , and is not urged as a bar to this proceeding . The Employer refused to recognize the
UAW-CIO by virtue of such assignment.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different working hours from production employees and, unlike pro-
duction employees, are guaranteed a weekly salary and are paid in
addition a commission on the products they sell.
In view of the foregoing and particularly the fact that the driver-
salesmen work under the immediate supervision of the Employer, use
the Employer's equipment, and sell the Employer's products in an
area fixed by the Employer, we find, contrary to the Employer's con-
tention, that they are not independent contractors.
The transport man conveys the Employer's products by truck from
its bakery at Hagerstown, Maryland, to its loading station at Martins-
burg, West Virginia, where lie distributes the products to driver-
salesmen who cover that area. He works under the supervision of
the sales manager.
The mechanic and his helper regularly service the Employer's trucks.
They work in the garage under the general supervision of the plant
engineer. In case of emergency, they may be assigned to do some
maintenance work inside the bakery.
In 1944, the Employer and the Retail Clerks, following a consent
election 3 won by the latter, entered into a contract for a single agreed
unit of the Employer's production and maintenance employees, in-
cluding the driver-salesmen. This contract, which was amended from
time to time, expires by its terms on October 23, 1948.
It appears that the interests and working conditions of the driver-
salesmen, transport man, mechanic and helper are clearly identifiable
and severable from those of the bakery employees, who in their sev-
eral capacities manufacture the bakery products and maintain ma-
chinery and equipment within the bakery .4 They may properly, as
the Petitioners contend, constitute separate units appropriate for bar-
gaining, notwithstanding their past bargaining history on a more
inclusive basis. The bargaining history, however, indicates that all
employees may bargain as a single over-all unit. We shall make no
final determination at this time of the unit or units appropriate but
shall first ascertain the desires of these employees as expressed in the
elections hereinafter directed in the following separate voting groups
of employees.
(a) All driver-salesmen of the Employer, including the extra driver,
the transport man, and the mechanic and his helper, but excluding
all bakery production and maintenance employees, clerical and pro-
fessional employees, guards, executives, and supervisors as defined
in the Act;
8 Case No. 5-R-1571.
4 Matter of Superior Bakery, supra.
CASKEY BAKING COMPANY 377
(b) All production and maintenance employees at the Employ-
er's bakery, including dough mixers, sponge mixers, machinery op-
erators, bakers, oven operators, oven dumpers, loader and helper,
shipping clerks, stockroom man, and janitors, but excluding all
driver-salesmen, extra drivers, the transport man, the mechanic and
his helper, clerical and professional employees, guards, executives,
and supervisors as defined in the Act.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, separate elec-
tions by secret ballot shall be conducted as early as possible, but not
later than 30 days from the date of this Direction, under the direction
and supervision of the Regional Director for the region in which this
case was heard, and subject to Sections 203.61 and 203.62 of National
Labor Relations Board Rules and Regulations-Series 5, as amended,
among the employees in the two groups described above, who were em-
ployed during the pay-roll period immediately preceding the date of
this Direction of Elections, including employees who did not work
during such pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement :
(1) To determine whether the driver-salesmen described in para-
graph 4 (a) above desire to be represented, for purposes of collective
bargaining, by Drivers, Chauffeurs, Helpers, Garage Employees and
Warehousemen, Local Union No. 992, A. F. L., or by United Automo-
bile, Aircraft and Agricultural Implement Workers of America,
UAW-CIO, or by neither; and
(2) To determine whether production and maintenance employees
described in paragraph 4 (b) above desire to be represented, for pur-
poses of collective bargaining, by Bakery and Confectionery Workers
International Union of America, A. F. L., or by United Automobile,
Aircraft and Agricultural Implement Workers of America, UAW-
CIO, or by neither.