Omar, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1946

69 N.L.R.B. 1126 (N.L.R.B. 1946)

In the Matter Of OMAR, INCORPORATED, EMPLOYER arrd UNITED RETAIL,
WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF AMERICA, CIO,
PETITIONER
Case No. 11-R-997.-Decided August °2. 1916
Mr. James V. Donadio , of Indianapolis , Ind., for the Employer.
Messrs . Powers Hapgood and Howard L. McNamara , of Indian-
apolis , Ind., for the Petitioner.
Mr. Robert D. Maiarney, of Indianapolis , Incl.. for the Intervenor.
Mr. Harvey B. Diamond , of counsel to the Board.
DECISION
AND
ORDER
Upon a petition duly filed, hearing in this case was held at Indian-
apolis, Indiana, on May 13 and 14, 1946, before Arthur R. Donovan,
Trial Examiner. The Trial Examiner's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. The Bakery
and Confectionary Workers International Union, Local 372, AFL,
hereinafter called the Intervenor, moved to dismiss the petition on
the. ground that no question concerning representation has arisen
inasmuch as it has a presently existing contract with the Employer.
The Trial Examiner reserved ruling on the motion for the Board.
For reasons stated in Section III, infra, the motion is hereby granted.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. TIIE BUSINESS OF TIIE EMPLOYER
Omar, Incorporated is a Delaware corporation having its principal
office and plant in Indianapolis, Indiana, and branches in various towns
throughout the State of Indiana. The Indianapolis, plant is the only
one involved in this proceeding. The Employer is engaged in the busi-
ness of producing and selling at retail bakery products such as bread,
' The Trial Examiner also reserved ruling for the Board on the Intervenor's motion to
dismiss on the ground that the unit sought by the Petitioner is inappropriate . However,
inasmuch as we have found hereinafter that there is a bar to a present determination of
representatives , we do not deem it necessary to rule on this motion.
69 N. L. R. B., No, 1.35.
1126
OMAR, INCORPORATED 1127
cake, pies, rolls and cookies. During the past year the Employer pur-
chased raw materials for the Indianapolis plant valued at in excess
of $500,000, of which approximately 75 percent was received from
points outside the State of Indiana. During the same period the Em-
ployer sold finished products produced at the Indianapolis plant valued
at in excess of $1,000,000, none of which was shipped to points outside
the State of Indiana.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
I.I. TIIE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
The Intervenor is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the
Employer.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
On December 1, 1945, the Employer and the Intervenor executed
a contract retroactive to July 1, 1945, and to remain in effect until
the last Saturday in June, 1948. The Intervenor contends that the
contract is a bar to the present proceeding. The Petitioner contends
that the contract is one for an unduly long duration and therefore
unreasonably restricts the employees' freedom in their choice of a
bargaining representative.
The Board, in determining the reasonableness of the term of a
contract which is urged as a bar to an investigation of representa-
tives, always weighs the value inherent in industrial stability against
the statutory policy of protecting the freedom of employees to select
and change their bargaining agents. We customarily have held that
1-year contracts generally are reasonable in term, and that a contract
for a 2-year term will not be set aside in the absence of satisfactory
proof that it runs counter to established custom in the industry.2
Adversely, however, the Board has refused to sustain the validity of
3-year contracts which are urged as a bar to an immealiate deter-
mination of representatives, unless the proponents of such contracts
definitely establish that they are in accord with the general practice
in the industry involved.3
2 Matter of Uxbridge Worsted Company , Inc., Andrew Mill, 60 N. L. R. B. 1395 ; Matter
of Sutherland Paper Company , 64 N. L . R. B. 719 ; Matter of Kennecott Copper Corpora-
tion , 63 N. L . R. B. 466.
'Matter of American Pharmaceutical Co., Inc., 67 N. L . R. B. 1152 ; Matter of U. S.
Finishing Company , 63 N. L. R. B. 575 ; Matter of James E. Stark Company , 56 N. L. R. B.
1209 ; Matter of Chicago Curled Hair Company , et at ., 56 N. L . R. B. 1674.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The baking industry, because of the perishability of its products
which are designed for immediate consumption and must be distri-
buted locally or within the radius of quick delivery, necessarily can-
not be concentrated in particular areas. Baking establishments are
located in almost every city and town throughout the country, in
approximate relation to the distribution of population. In consider-
ing what is customary in the baking industry, therefore, we must
confine ourselves to the-contract practice in the particular locality
involved.
There are six major bakeries,4 including the Employer herein,
operating in the city of Indianapolis, which produce the bulk of the
bread, cake, rolls, pies and pastries consumed in the city and adja-
cent areas. Industrial organization among these establishments
began in 1937 and at the present time 5 companies have contracts
with the Intervenor and one with the Petitioner. During the past
9 years, the 2 unions and the companies have executed a total of
19 contracts, of which 5 wSre for 1-year terms, 3 for 2-year terms,
10 for 3-year terms, and 1 for a 5-year term. Nine of the ten 3-year
contracts were negotiated by the Intervenor, and one by the Peti-
tioner. It is evident that these facts amply support the contention
of the Intervenor that 3-year contracts are customary in the baking
industry in the city of Indianapolis. We are of the opinion, there-
fore, that the present contract between the Employer and the Inter-
venor is one of reasonable duration and is not an unjustifiable re-
straint upon the employees' rights to redetermine their choice of
bargaining representative.
The Petitioner further contends that the contract between the
Employer and the Intervenor is actually for a 1-year term and there-
fore not a bar to its petition. We do not agree with the contention
of the Petitioner. Although the contract provides for modification
of the provisions establishing wage rates and hours of employment
upon 30 days' written notice prior to the last Saturday in June of
any calendar year during the contract term,5 no such notice had been
given prior to the date of the hearing herein. Moreover, the Board
has repeatedly stated, that even in cases wherein negotiations have
been entered into, or modifications effected, pursuant to similar con-
tract provisions, such renegotiations or modifications would not
4 There are also two bakeries owned and operated by two national grocery chains, which
produce exclusively for distribution through stores owned by the companies. In addition
there are several small neighborhood bake-shops , which produce primarily for neighborhood
consumption.
5 Article XI, Section 2 of the contract reads : "Upon written notice by either party to the
other party at least thirty (30) days prior to the last Saturday in June in any calendar
year, this agreement may be opened by either party to request changes to be made in hours
as set forth in Article VI or wages as set forth in Article VIII, or both, for the ensuing
contract year, . . .
OMAR, INCORPORATED 1129
operate to validate the representation claim of a rival union in the
absence of any attempt.to change the term of the contract itself.6
In view of the foregoing, we find that the 1945 contract between
the Employer and, the Intervenor bars an investigation of repre-
sentatives at this time, and we shall accordingly dismiss the petition
herein.
ORDER
Upon the basis of the above findings of fact and the entire record
in the case, the National Labor Relations Board hereby orders that
the petition for investigation and certification of representatives of
employees of Omar, Incorporated, Indianapolis, Indiana, filed by
United Retail, Wholesale and Department Store Employees of
America, CIO, be, and it hereby is, dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
6 Matter of Douglas Public Service Corp ., 62 N. L . R. B. 651 ; citing Matter of Green Bay
Drop Forge Company, 57 N. L.R. B . 1417 . See also Matter of U. S. Vanadium Corporation,
Pine Creek Unit, 68 N. L . R. B. 389 ; cf. Matter of Olin Industries , Inc., 67 N. L. R. B.
1043.