Continental Baking Co.

National Labor Relations Board - Board Decisions

Apr 25, 1946

67 N.L.R.B. 767 (N.L.R.B. 1946)

In the Matter of CONTINENTAL BARING COMPANY and LOCAL UNION
No. 57, BAKERY AND CONFECTIONERY WORKERS' INTERNATIONAL
UNION OF AMERICA, A. F. OF L.
Case No. 9-R-2064.-Decided April 25, 1946
Mr. George Faunce, Jr., of New York City, Mr. A. W. Owens,
of Detroit, Mich., and Mr. George Hecker, of Columbus, Ohio, for the
Company.
Mr. L. K. Ballenger, of Columbus, Ohio, for the AFL.
Mr. A. L. Carson, of Columbus, Ohio, for the CIO.
Mr. John, A. Nevros, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by Local Union No. 57, Bakery
and Confectionery Workers' International Union of America, A. F.
of L., herein called the AFL, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Con-
tinental Baking Company, Columbus, Ohio, herein called the Com-
pany, the National Labor Relations Board provided for an appropriate
hearing upon due notice before Harold M. Weston, Trial Examiner.
The hearing was held at Columbus, Ohio, on March 8, 1946. The
Company and the AFL appeared and participated. All parties were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded opportunity to file
briefs with the Board. Although Local 340, United Bakery and Con-
fectionery Workers' Union, United Retail, Wholesale & Department
Store Employees of America, CIO, herein called the CIO, was duly
served with Notice of Hearing, it did not appear. However, subsequent
to the hearing, the CIO filed with the Board a Motion to Intervene 1
1 The CIO asserted, in a letter accompanying this motion , that due to matters which
,were entirely beyond its control, it was impossible for it to be represented at the hearing.
,67 N. L. R. B., No. 98.
767
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in which it urged (1) that the petition be dismissed on the ground
that its contract of April 11, 1945, with the Company is a bar to this
proceeding, and (2) that, if the Board denied its request for dismissal,
it be placed on the ballot in any election that might be directed by the
Board. In view of the existence of contractual relations between the
Company and the CIO, as set forth in Section III, infra, since Feb-
ruary 22, 1942, and their last contract dated April 11, 1945, the CIO
had as of the time of the hearing a representative interest among the
employees in the unit hereinafter found appropriate. Therefore, al-
though the CIO's motion is not timely, inasmuch as an election is here-
inafter directed, we shall grant only that part of the motion to inter-
vene which requests a place on the ball Ot.2
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF TILE COMPANY
Continental Baking Company, a Delaware corporation having its
principal office and place of business in New York City, is engaged in
the business of manufacturing and distributing bakery products. It
operates and maintains in the course of its business 84 plants in 28
States and the District of Columbia. In the majority of its plants, in-
cluding its plant at Columbus, Ohio, with which this proceeding is
solely concerned, the Company is engaged in the production and sale of
Wonder Bread, a nationally advertised product.
During 1945, the Company purchased for use in its Columbus plant
raw materials, consisting principally of flour, milk, yeast and salt,
and valued in excess of $500,000. Approximately 80 percent of the
value of the raw materials represented purchases from sources outside
the State of Ohio. During the same period, all the Company's finished
products at its Columbus plant, valued in excess of $1,500,000, were
sold within the State.
The Columbus plant forms an integrated and coordinated part of
the Company's business, which is national in scope. The Company
admits, and we find, that it is engaged at its Columbus, Ohio, plant in
commerce within the meaning of the National Labor Relations Act.'
It. THE ORGANIZATIONS INVOLVED
Local Union No. 57, Bakery and Confectionery Workers' Inter-
national Union of America, affiliated with the American Federation
8 See Matter of Robert Gair Company, Inc , 65 N L R B 267 ; and Matter of Cleveland
Clefs Iron Company ( Marine Department ), 63 N L R B. 674 Cf Matter of United
Boat Service Corporation , 55 N L R B 671
3 See N L R B v. Van de Kamp 's Holland -Dutch Bakers, Inc, 152 F ( 2d) 818 (C. C. A.
9), deeded January 7, 1946 , enf'g as mod 56 N L. R. B 694.
CONTINENTAL BAKING COMPANY 769
of Labor, is a labor organization admitting to membership employees
of the Company.
Local 340, United Bakery and Confectionery Workers' Union,
United Retail, Wholesale & Department Store Employees of America,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On February 9, 1946, the AFL notified the Company that it repre-
sented a majority of the employees in the alleged appropriate unit,
and requested recognition as their exclusive bargaining representa-
tive. On February 14, 1946, the Company replied that inasmuch as
it had been recognizing the CIO as the exclusive bargaining agent for
such employees, it desired a determination of the question concerning
representation by the Board.
The Company and the CIO have been in contractual relationship
since February 22, 1942. The most recent contract between the parties
was entered into on April 11, 1945, and was effective retroactively
from February 18, 1945 to February 16, 1946 "and thereafter until a
new agreement has been consummated and signed, or this agreement,
after the above-mentioned date of expiration, has, upon thirty (30)
days written notice, been cancelled or terminated" by the Company or
by the CIO. Neither party to the contract has given such notice of
termination or cancellation, but the CIO, by letter dated February
8, 1946, notified the Company that it wished to open negotiations for
a new contract.
It is apparent that the contract between the Company and the CIO
became, at the termination of its initial period of approximately 1 year
on February 16, 1946, a contract of indefinite duration. Although the
parties were still operating under the terms of this contract at the
time of the hearing, it is clear, under well established principles of the
Board, that the contract cannot operate as a bar to this proeeeding.4
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the AFL represents a substantial number of
employees in the unit hereinafter found appropriate.'
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.
4 Matter of Great Bear Logging Company , 59 N L R B 701 ; and Matter of General
Electric Company, 48 N. L. R B. 1044.
5 The Field Examiner reported that the AFL submitted 56 applications for membership
bearing the names of employees listed on the Company's pay roll for the period ending
February 21, 1946 , and that there are approximately 64 employees in the alleged
appropriate unit
692145-46-vol 67-50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The AFL seeks a unit of all employees at the Company's Columbus,
Ohio, plant, excluding truck drivers, office and clerical employees, the
entire sales force, superintendents, foremen, and executives. The Com-
pany takes no position with respect to the appropriate unit; however,
it agrees with the AFL that this unit, although described in different
terms herein, is identical to the one covered by the contract between
the CIO and the Company.
In view of the foregoing, we find that all employees at the Company's
Columbus, Ohio, plant, excluding truck drivers, office and clerical
employees, the entire sales force, foremen, superintendents, executives,
and all or any other supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing 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 employees
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.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Continental Bak-
ing Company, Columbus, Ohio, 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 Ninth Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III,
Sections 10 and 11, of said Rules and Regulations, among 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
CONTINENTAL BAKING COMPANY 771
present themselves in person at the polls, but excluding those em-
ployees who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election, to determine
whether they desire to be represented by Local Union No. 57, Bakery
and Confectionery Workers' International Union of America, A. F.
of L., or by Local 340, United Bakery and Confectionery Workers'
Union, United Retail, Wholesale & Department Store Employees of
America, CIO, for the purposes of collective bargaining, or by neither.