Oregon Macaroni Co.

National Labor Relations Board - Board Decisions

Sep 21, 1959

124 N.L.R.B. 1001 (N.L.R.B. 1959)

OREGON MACARONI COMPANY 1001
Oregon Macaroni Company; Smith & Sonnleitner Cookie Co.;
Porter-Scarpelli Macaroni Company; Maryland Pacific Cone
Company of Oregon ; Candy Manufacturers of Oregon; and
Bakery Employers Council and Candy, Cracker and Cookie
Workers' Union Local 364, American Bakery & Confectionery
Workers International Union , AFL-CIO, Petitioner. Cases
Nos. 36-RC-1439, 36-RC-1441, 36-RC-1442, 36-RC-1143, 36-RC-
1444, and 36-RC-1445. September 21, 1959
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9(c) of the National Labor
Relations Act, a hearing on these consolidated cases was held before
Charles Y. Latimer, hearing officer. 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 Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
Upon the entire record in these cases, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employers.
3. The Petitioner requested elections, in separate units, among cer-
tain employees of the Employers involved herein. The Intervenors,
Bakery & Confectionery Workers International Union of America,
herein called BCW, and the Trustee of its Local 364 contend that con-
tracts between the Employers and BCW Local 3641 bar the petitions .2
The Petitioner contends that the contracts are not a bar because, inter
alia, a schism exists within the Local 364.
The Board has held, in the Hershey Chocolate Corporation case,-
that the policy conflict within the AFL-CIO resulting in the expulsion
1 BCW Local 364 is also referred to in the record as Candy, Cracker & Cookie Workers
Union Local No. 364.
2 The Intervenors did not contend that BCW Local 364's contracts with two of the
Employers herein, Smith & Sonnleitner Cookie Company (Case No. 36-RC-1441) and
Bakery Employers Council (Case No. 36-RC-1445), constitute a bar. These contracts.
were effective June 29, 1958, until June 29, 1959 . The petitions were filed May 19, 1959,.
within the 60-day insulated period immediately preceding the expiration dates of the con-
tracts. These two petitions were therefore untimely, and the Board has held that dis-
missal of such untimely petitions does not depend on whether or not the issue of time-
liness is specifically raised. Stewart Die Casting Division ( Bridgeport ) of Stewart
Warner Corporation, 123 NLRB 447. When, however , as found below , the contracts are
in fact not a bar for other reasons under Board rules , dismissal of such untimely petitions
is not required . See National Brassiere Products Corp., 122 NLRB 965. BCW Local 36¢
contracts with the other Employers are for periods of 1 or 2 years and expire in March,.
July, or December 1960.
8121 NLRB 901.
124 NLRB No. 138.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of BCW on grounds of alleged corruption, and the chartering of ABC
with substantially the same jurisdiction, on December 12, 1957, estab-
lished the existence of a basic intraunion conflict, prerequisite to a
finding of schism.4 The Intervenors contend, however, that all re-
quirements set forth in Hershey Chocolate for the finding of a schism
are not present in this case because the disaffiliation action allegedly'
was not taken by Local 364 within a reasonable period of time and
because the reasons for the disaffiliation were allegedly unrelated to
the basic intraunion conflict within BCW. The Employers take no
position with respect to the contract-bar issue.'
Local 364 was an amalgamated local union chartered by BCW in
1937. From the time the charges of corruption were first made in
March 1957, the question whether BCW President Cross was guilty
of the charges against him, and if so, what should be done about it,
was a subject of discussion and debate by the executive board and
members, of Local-364.6 After the expulsion of I3CW by AFL-CIO,
the members of Local 364 decided, with some dissent, to "go along"
with BCW in the hope that the affairs of the International would be
"cleaned up" and the organization could remain together. When
BCW convened a special convention in March 1958, the Local mem-
bers believed that the purpose of the convention was compliance with
the directive of AFL-CIO that the officers of BCW must resign and
new officers be elected. Local 364 therefore sent its Secretary-Treas-
urer Weil and-President Raymond Van Cleve as delegates to the con-
vention, voting unanimously to instruct the delegates to vote against
Cross for any office in BC`V. However, at the convention, Well and
Van Cleve discovered that Cross would be unopposed for reelection as
president of BCW, and they voted for him because they were assured
by BCW Vice President Alvino that, if Cross were "vindicated" by
reelection, he would then resign "for the good of the organization,"
and also because they feared retaliatory measures might be taken
against locals which voted against Cross, by placing them under
trusteeships.'
At a meeting of the Local after the convention, the delegates were
.severely criticized by the members for failing to follow their instruc-
tions. Thereafter, discussions of possible disaffiliation from BCW
continued among the Local members, and a meeting was held on
October 18, 1958, for the purpose of voting on this issue. Representa-
- 4 Hershey Chocolate Corporation, 121 NLRB 901. See also St. Louis Bakery Employers
Labor Council, 121 NLRB 1548; The Great Atlantic & Pacific Tea Company, 120 NLRB 656.
5 Although served with notice, two of the Employers, Oregon Macaroni Company and
Maryland Pacific Cone Company of Oregon, did not appear at the hearing. All other
Employers appeared through counsel, but withdrew after the first morning session of
the hearing.
0 Evidence as to events relating to the disaffiliation action consists chiefly of the un-
,contradicted testimony of Secretary-Treasurer Weil.
7 The Local 364 delegates voted against the one BCW officer who was opposed for
reelection.
OREGON MACARONI COMPANY 1003
tives of both BCW and ABC addressed the meeting. The member-
ship then requested Well to make a recommendation. Weil, as well as
the ABC representative, advised the members to remain with BCW
for the present because disaffiliation action at that time might ad-
versely affect negotiations by the Local with National Biscuit Com-
pany for a wage increase. Weil also indicated his belief that efforts
were being made to unite BCW with ABC snider the AFL-CIO by
having both Cross and the president of ABC resign, and his fears of
possible loss of all welfare and pension benefits if the Local disaf-
filiated from BCW before it was certain that such benefits were avail-
,ible under ABC. The members then voted 194 to 33 to remain with
BCW for the present.
The following January 1959 the Local officers obtained favorable
information regarding the ABC welfare plan and learned that its
pension plan was paying benefits. In March, Local negotiations with
National Biscuit Company culminated in a 5-cent-an-hour wage in-
crease. No further action was taken by the Local, however, until
April, when Weil received information from BCW Vice President
Alvino to the effect that BCW would affiliate with the Teamsters
Union. Shortly thereafter, on April 28, 1959, the Local executive
board authorized the distribution of ABC authorization cards. When
400 employees, or one-half of those represented, signed cards the first
day, a membership meeting was called for May 2, 1959, to reexplore
the question of affiliation. Adequate notices were posted 3 days prior
to the meeting. Local President Van Cleve addressed the meeting,
reviewing the events surrounding the expulsion of BCW from AFL-
CIO and recommending that the Local disaffiliate from BCW -because
of the failure of President Cross to resign in the interests of unity, and
in order to protect the Local's treasury, contracts, and relationships
with employers. He assured the members that their welfare and pen-
sion benefits would be retained if they switched to ABC. After fur-
ther discussion, those present voted 192 to 1 to adopt a resolution dis-
affiliating from BCW and affiliating with ABC because of diversion
of BCW funds by the president and others and expulsion of BCW by
AFL-CIO. All o#icers and members of the executive board retained
their offices and signed a copy of the resolution. Secretary-Treasurer
Well informed the Employers here involved of the action taken.
Thereafter, BCW appointed a trustee over the affairs of Local 364,
and he informed the Employers by letter of his intent to administer
the contracts. All Employers took a position of neutrality. At the
hearing herein, the trustee testified that he was willing and able to
administer the contracts, although there is no evidence that any mem-
bers or officers of the Local remain loyal. to BCW.
On the basis of the above facts, we find, contrary to the Intervenors'
contention, that the chief reason for the disaffiliation of Local 364
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
related to the basic intraunion conflict caused by the expulsion of
BCW from AFL-CIO on grounds of alleged corrupt practices by
BCW officials. The record shows that there was dissatisfaction within
the Local from the time this conflict arose, and that immediate dis-
affiliation was prevented chiefly by the Local membership's belief
that BCW would eventually comply with the AFL-CIO directives
so that it could unite with ABC and return to the AFL-CIO. This
motive is evident in their understanding of the purpose of the BCW
special convention, the voting instructions given to the Local's dele-
gates, and the assurances that such action would be taken which were
subsequently received from a high official in the BCW International
Union. Although economic problems involved in disaffiliating un-
doubtedly played some part in postponing action, these factors do not
appear to have been paramount. All such economic problems were
solved by 'March of 1959, but it was not until the Local secretary-
treasurer, who appears to have had considerable influence with the
membership, became persuaded that BCW intended to ally itself
with the Teamsters Union, and thus remain outside the AFL-CIO,
that the members of Local 364 finally concluded that rapprochement
by BCW with the "main stream of the labor movement" was unlikely
and therefore severed their relationship with BCW. Under the cir-
cumstances set forth above, including the continuous discussion and
debate among the members of Local 364 of the events surrounding the
intraunion conflict, we also find that the disaffiliation action was
taken within a reasonable period of time. We conclude, therefore,
that the disaffiliation taken has resulted in confusion disrupting bar-
gaining relationships, and that a schism exists in the bargaining units
removing the contracts as a bar to an immediate election.8
Questions affecting commerce exist concerning the representation
of employees of the Employers within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. We find, in accord with the agreement of the parties, that the
units, described below, in Cases Nos. 36-RC-1439, 36-RC-1441,
36-RC-1442, 36-RC-1443, and 36-RC-1444, which conform with the
contract units, are appropriate.
In Case No. 36-RC-1445, which involves employees of Bakery Em-
ployers Council,' the parties disagreed as to appropriateness of the
unit. Petitioner requests a unit of all employees in the production
department, excluding, inter alia, bakers and doughmixers. The Em-
ployer agrees that this unit, which conforms with the contract unit,
is appropriate. The Intervenors contend that the unit is inappropri-
8 In view of our decision herein , we find it unnecessary to, and therefore do not, rule
on the Petitioner ' s other objections to the contracts as a bar.
6 Bakery Employers Council apparently is an association composed of Grandma Cookie
Company and Mother's Favorite Cookie Company.
OREGON MACARONI COMPANY 1005
ate on the ground that it is defined on the basis of the Petitioner's
jurisdictional limitations and the sex of the employees.
The Employer is engaged in the making of cookies in a highly
mechanized plant. It has contracts with two BCW Local Unions
covering its employees. The contract with BCW Local 364 covers
employees in the unit requested by the Petitioner, and includes all
employees engaged in packaging and cartoning of bakery products.
These classifications are filled by women. However, the unit also
includes the classification "utilityman," which is filled by a man, whose
duties are to set up, adjust, and occasionally operate, the wrapping
machines. Bakery and doughmakers have been separately represented
by BCW Local 114 for over 15 years. These jobs are filled by men.
Neither the contract covering bakers and doughmakers nor the one
covering the employees here requested, limits its coverage to members
of one sex. Although the utilityman is a member of Local 114, his job
is covered by the Local 364 contract. Further, there is no indication
in the record that the jurisdiction of Local 364 is limited to women.
Under these circumstances, we find that the requested unit is not
limited by the Petitioner's jurisdiction nor confined to the female sex,
as contended by the Intervenors.
The bakers and doughmakers, whom the Petitioner and Employer
would exclude, earn a higher rate of pay than the included employees.
There is no interchange between the two groups, except that five of
the requested packaging and cartoning employees spend an unspecified
amount of their time, which apparently is negligible, in turning the
dough of one type of cookie, a job apparently performed by bakers or
doughmakers upon all other occasions. On the basis of the entire
record, including the separate bargaining history, and the separate
interests and duties of the employees in the unit requested, we find
that they constitute an appropriate unit.'°
Accordingly, we find that the following units are appropriate for
purposes of collective bargaining within the meaning of Section 9(b)
of the Act :
(a) Case No. 36-RC-1439: All production and office employees em-
ployed by Oregon Macaroni Company, Portland, Oregon, excluding
supervisors as defined in the Act.'1
(b) Case No. 36-RC-1441: All production employees employed by
Smith & Sonnleitner Cookie Company, McMinnville, Oregon, includ-
ing cleanup men and shipping department employees, but excluding
office employees, truckdrivers, salesmen, professional employees, and
supervisors as defined in the Act.
10 See The Kansas City Bakery Employers Labor Council, 121 NLRB 6. We find it
unnecessary to, and therefore do not , rule on the Petitioner 's contention that bakers and
doughmakers are craftsmen.
. "As indicated above, the parties stipulated to the appropriateness of this unit , which,
they agreed, conforms with the contract unit.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Case No. 36-RC-1442: All production employees of Porter
Scarpelli Macaroni Company, Portland, Oregon, excluding office em-.
ployees, drivers, salesmen, warehousemen, professional employees, and
supervisors as defined in the Act.
(d) Case No. 36-RC-1443: All production employees of Maryland
Pacific Cone Company of Oregon, Portland, Oregon, including
shipping department employees, but excluding office employees, pro-
fessional employees, and supervisors as defined in the Act.
(e) Case No. 36-RC-1444: All employees in the production depart-
ment of Candy Manufacturers of Oregon, excluding office employees,
drivers, salesmen, professional employees, and supervisors as defined
in the Act.
(f) Case No. 36-RC-1445: All employees in the production depart-
ment of the Bakery Employers Council cookie manufacturing plants,
excluding bakers, doughmixers, office employees, salesman and truck-
drivers, and supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]
Maricopa Packing Co. and Amalgamated Meat Cutters &
Butcher Workmen of N.A., Local No. 448, AFL-CIO. Case
No. 01-CA-3072. September 2?" 1959
DECISION AND ORDER
On June 5, 1959, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
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-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER.
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
124 NLRB No. 136.