Holsum Bakers, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1953

102 N.L.R.B. 1495 (N.L.R.B. 1953)

HOLSUM BAKERS , INC. 1495
Paragraphs 1 and 12 obligate employees who were employed when
the contract became effective , but who were not then members of the
Intervenor , to become members without the benefit of the statutory
30-day grace period. This clause provides for union security in excess
of that permitted by Section 8 (a) (3) of the Act, and is unlawful
within the meaning of that Section .3
The inclusion of paragraph 20 in the provisions of the contract does
not warrant a different finding. The Board has held that where, as
here, an illegal union-security clause contains no provision expressly
deferring its application , but is merely subject to the general applica-
tion of a savings clause, such clause does not cure the illegal union-
security provision . In these circumstances we have found a contract
containing such an unlawful union-security provision not a bar to an
election.4 We find accordingly , that the contract between the Em-
ployer and the Intervenor is not a bar to this proceeding.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accord with the agreement of the parties at the hearing, we
find that all production and maintenance employees including ship-
ping employees at the Employer's Brooklyn , New York plant, ex-
cluding office , clerical , and professional employees , guards, watchmen,
and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
'I:harles A. Krause Milling Co., 97 NLRB 536; Archer-Daniels-Midland Company, 97
NLRB 647; C. H¢ltebrant Dry Dock Company , Inc., 98 NLRB 12715.
' Muntz Television, Inc, 92 NLRB 29.
HOLSUM BAKERS , INC. and TEAMSTERS, CHAUFFEURS AND HELPERS LO-
CAL UNION No. 79, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. OF L.,
PETITIONER. Case No. 10-RC-2152. February 18, 1953
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Allen Sinsheimer,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
102 NLRB No. 147.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain 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 the Act.
4. The Employer operates a bakery in Tampa, Florida, and employs
5 transport drivers and approximately 64 driver-salesmen. The Peti-
tioner requests a unit consisting only of the 30 driver-salesmen work-
ing out of the Tampa bakery and all 5 of the transport drivers. The
Employer opposes this unit, contending that its driver-salesmen may
be represented only in a unit embracing all such employees, including
those working in locations other than Tampa. It also contends that
the transport drivers must be separately represented.
The driver-salesmen operate small trucks to deliver bread to cus-
tomers, collect from customers, and solicit new customers. They are
paid a minimum weekly page, plus a commission based on the value
of sales made. The 30 driver-salesmen sought by the Petitioner re-
side and have sales routes in Tampa, or sufficiently near to permit them
to pick up their bread at the bakery itself. The 34 remaining driver-
salesmen work on sales routes and reside in other cities located from
21 to 100 miles away from Tampa.' These driver-salesmen pick up
their bread at local redistribution depots serviced by the transport
drivers. From time to time they attend sales meetings at the Tampa
plant. All driver-salesmen are paid out of Tampa and are supervised
by the general sales manager there and they all work under the same
terms and conditions of employment. Below the general sales man-
ager, there are area and divisional sales managers whose responsi-
bilities in some instances cover both Tampa and outside driver-sales-
men. In the past 2 years there have been 6 transfers between the
Tampa salesmen and the others.
The transport drivers operate trailer trucks and haul bread from the
Tampa bakery to redistribution depots in 1 or more of the other 6
cities. They are paid on a straight hourly basis as over-the-road
drivers. They have no other duties. The production superintendent
of the bakery supervises these drivers. There is no interchange be-
tween the transport drivers and the driver- salesmen.
1 The number of employees stationed elsewhere , and their distances from Tampa, is as
follows : 12 at St Petersburg , 21 miles, 6 at Lakeland , 35 miles, 1 at Brooksville, 35
miles ; 1 at Dade City, 315 miles ; 6 at Sarasota , 63 miles ; and 8 at Orlando , 100 miles.
The average distance is 48 miles.
THE CLEVELAND TRUST COMPANY 1497
Although both the driver-salesmen and the transport drivers operate
motor vehicles, the driver-salesmen are primarily salesmen , with in-
terests and conditions of work considerably different from those of
the transport drivers who are over-the-road truckers without addi-
tional duties. As the latter clearly are over-the-road truckers, and'
because one of the parties objects to their inclusion with other cate-
gories of employees, we shall, in accordance with established Board
policy, exclude them from the driver-salesman Unit .2 Instead, we
shall establish them in a separate bargaining unit.
It is clear that the Employer' s sales organization operates as an
integrated whole and that the interests and conditions of work of the
outlying driver-salesmen are identical with those of the salesmen driv-
ing routes in the Tampa area. In these circumstances, we do not
believe that the distances separating the Tampa area routes from the
others warrant a separate unit of the Tampa salesmen.' As the sales-
men unit requested by the Petitioner is but a segment of a group of
employees having the same interests, we find that it is inappropriate
for collective bargaining purposes. We find, therefore, that any unit
composed of driver-salesmen must include all such employees of the
Employer, wherever their sales routes are situated .4
Accordingly, we find that the following employees of the Employer's
bakery operation at Tampa, Florida, excluding from each group all
other employees and all supervisors as defined in the Act, constitute
units appropriate for collective bargaining within the meaning of
Section 9 (b) of the Act: 5
(1) All transport drivers.
(2) All driver-salesmen including those assigned routes outside the
Tampa area.
[Text of Direction of Elections omitted from publication in this
volume.]
2 Chesty Foods, Inc., 98 NLRB 1185, and cases cited therein.
8 American Bakeries Company, 74 NLRB 399.
4 National Brands, Inc., 81 NLRB 1163.
5 At the hearing the Petitioner declared that it desired to appear on the ballot no matter
what unit or units the Board should find appropriate . Its showing of interest was suf-
ficient to justify an election in the groups herein found appropriate.
Tam CLEVELAND TRUST COMPANY and CONGRESS OF INDUSTRIAL ORGANI-
ZATIONS . Case No. 8-CA-4.68. February 19, 1963.
Decision and Order
On May 13, 1952, Trial Examiner Henry J. Kent issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
102 NLRB No. 164.