Panaderia La Reguladora

National Labor Relations Board - Board Decisions

Aug 9, 1957

118 N.L.R.B. 1010 (N.L.R.B. 1957)

1,010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fined in the Act, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
[The Board vacated the Decision and Order issued on July 18,
1957.]
[Text of Direction of Election omitted from publication.]
Molinelli , Santoni & Freytes , S. en C ., d/b/a Panaderia La Regu-
ladora and Panaderia La Francesa ; Puig & Abraham, d/b/a
Panaderia LaBombonera ; Panaderia El Diamante ; Panaderia
La Jerezana ; Panaderia Bairoa, Inc., d/b/a Panaderia Bairoa;
Panaderia La Castellana ; Panaderia Sixto Ortega ; La Puerto-
rriquena, Inc., d/b/a Panaderia La Puertorriquena ; Panaderia
La Placita ; Panaderia Los Andes ; Panaderia La Borinquen
Panaderia La Moderna; Panaderia Villa Palmeras; and Ameri-
can Bakery , d/b/a Dixie Bakery Products 1 and Union Local, de
Panaderos de San Juan, affiliated with Federation Libre de los
Trabajadores de Puerto Rico , Petitioner. Case No. 24.-RC-966.
August 9, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before H. Stephen Gordon,
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 this case to a three -member
panel [Chairman Leedom and Members Rodgers and Jenkins].
Upon the entire record in this case,' the Board finds :
1. The parties agree that none of the Employers here involved,
separately considered, meet the Board's jurisdictional standards, but
that, when considered collectively, their combined annual direct iit
flow meets the requirements set forth in the Jonesboro case .3 The
Intervenor,' although admitting that it has in the past entered into
The names of the Employers appear above as amended at the hearing.
Prior to the hearing in this case , Petitioner also filed petitions for separate units of em-
ployees of four of the above Employers . Cases Nos . 24-RC-968, 24-RC-969, 24-RC-970,
and 24-RC-971. As a result , the Regional Director, on October 23, 1956, ordered that these
cases be consolidated with the instant case for purposes of hearing . At the hearing, how-
ever, Petitioner requested permission to withdraw all its petitions except the one seeking
a multiemployer unit and, upon approval by the Regional Director of this request, it was
granted by the hearing officer.
8 Jonesboro Grain Drying Cooperative, 110 NLRB 481.
4 Union # 1, de Panaderos Reposteros y Ramas Anexas de Puerto Rico, affiliated with
Federacion Libre de los Trabajadores de Puerto Rico, herein called the Intervenor.
118 NLRB No. 128.
PANADERIA LA REGULADORA AND PANADERIA LA FRANCESA 1011
contracts covering at least 10 of these Employers, contends that the
only appropriate units are separate units for each Employer, and that
the instant petition should therefore be dismissed on jurisdictional
grounds.
Inasmuch as we hereinafter find that a multiemployer unit is
appropriate for the purposes of collective bargaining,' we find no merit
in this contention, for, under these circumstances, the relevant
criterion in determining the Board's jurisdiction is the effect upon
interstate commerce of the combined operations of all of the Em-
ployers.' Accordingly, as the combined direct inflow of these
Employers, all engaged in the manufacture and sale of bakery
products, exceeded $500,000 in value for the year ending June 30,
1956, we find that the Employers are engaged in commerce within the
meaning of the Act and that it will effectuate the purposes of the Act
to assert jurisdiction in this case.7
2. The labor organizations involved claim to represent certain
employees of the Employers.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The 14 Employers here involved are all organized under the
laws of Puerto Rico and operate bakeries in the metropolitan area of
San Juan, and most are individual proprietorships. Petitioner seeks
a multiemployer unit of all bread bakers and their helpers. The In-
tervenor, on the other hand, contends that separate units of each
Employer's employees are the only appropriate units. The Employers
agree with the Petitioner that the multiemployer unit is alone- appro-
priate for bargaining purposes. The Petitioner and the Employers
contend that there is a bargaining history on a multiemployer basis
of 16 years, but the Intervenor alleges that there is no formal associa-
tion of Employers and that, in fact, all prior contracts have been
negotiated on a single-employer basis.
The Employer Association
The record shows that in 1953 the Intervenor appointed a. negotiat-
ing committee to meet with 10 of the Employers for the purpose of
5 See paragraph numbered 4, infra.
U Electrical Contractor-9 of Troy and Vicinity, 116 NLRB 354.
4 Jonesboro Grain Drying Cooperative , supra . The record also shows that the annual
combined direct inflow of the 10 Employers whose employees are found to constitute an
alternative appropriate unit in paragraph numbered 4, infra, meets the Board's current
jurisdictional standards.
9 The Intervenor was permitted to intervene on the basis of its contractual interest.
The Intervenor and .10 of the above Employers executed a contract effective from July 15,
1953, to July 15, 1957, and for another 4 years thereafter absent 60 days' notice by either
party prior to July l;i, 1957. Subsequent to the effective date of this contract, two other
Employers here involved became parties to L. However, none of the parties urges this con-
tract as a bar to this proceeding.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussing terms of a proposed contract .9 The number of Employers
represented at the various bargaining sessions fluctuated from one
meeting to another; however , those Employers attending the sessions
were empowered to, represent and to negotiate for those absent, and,
both before and during the bargaining negotiations , the Employers
met together to decide what demands of the Intervenor could be met
and what counterproposals should be made. Furthermore , the record
shows that there was never any negotiation on any individual em-
ployer basis and that the negotiations resulted in a single contract,
the provisions of which were uniformly applicable to all employers
who had participated in the joint negotiations . After all terms were
agreed upon , the Intervenor had the contract drawn up in final form
and thereafter secured the signatures of all 10 Employers. These
Employers have bargained in this manner for periods ranging from
6 to 16 years.
While the Employers are not bound together in any formal associa-
tion, that fact does not preclude our finding that such an informal
group constitutes a single employer for the purposes of collective
bargaining . 1p In the case at bar, the record clearly shows participa-
tion by these 10 Employers in a pattern of joint bargaining with the
Intervenor. Thus the 1953 contract was signed by all participating
Employers as a single document ," names all signatory employers as
"PARTY FOR THE FIRST PART" and thereafter refers to them
collectively as "the employer " or as one of the "parties" to the con-
tract, and the duration clause provides for automatic renewal ". . . un-
less one of the parties notifies the other party sixty days prior to its
expiration . . . ." This contract provides , inter alia , uniform hours,
wage scales , hospitalization , holiday and vacation benefits, sick leave
and union - security provisions , and general shop rules and regulations
for employees of all the Employers . It also contains a clause relating
to grievances , which provides for a grievance committee to be com-
posed of 2 representatives of the Intervenor and 2 representatives
selected by the Employers , collectively.
In view of this history of joint bargaining, we find that the employees
of the foregoing 10 Employers may appropriately be combined in a
single multiemployer unit for the purposes of collective bargaining.la
° The employer-group included all Employers who are parties to this proceeding except
Panaderia Villa Palmeras, Panaderia La Moderna, Panaderia Los Andes, and Panaderia
La Borinquen.
John-Tyler Printing and Publishing Company, 112 NLRB 167; Metz Brewing Company,
98 NLRB 409.
11 The Intervenor 's contention that there is in fact no multiemployer bargaining history
apparently rests on the fact that once joint negotiations were concluded and the final
agreement drawn up, each Employer executed the contract itself rather than delegating
the right to execute the agreement to a representative or representatives with power to so
bind the entire group. We find no merit in this contention.
12 See Electrical Contractors of Troy and Vicinity, supra; Santa Clara County Pharma-
ceutical Association, 114 NLRB 256; Metz Brewing Company , supra.
PANADERIA LA REGULADORA AND PANADERIA LA FRANCESA 1013
There remains for consideration the question of including in the
unit the employees of the other four Employers.
Panaderia Villa Palmeras: This Employer did not commence op-
erations until 1954. Although it did not engage in the negotiations
leading up to the 1953 agreement between the Intervenor and the 10
Employers discussed above, its proprietor affixed its signature to this
contract in 1954. Furthermore, Villa Palmeras stated at the hearing
that it considers itself part of the multiemployer group and desires
to bargain on a joint basis in the future and to be bound by subsequent
multiemployer contracts.
Panaderia La Moderna: Like Villa Palmeras, La Moderna did not
engage in the negotiations resulting in the 1953 contract, as it did not
come into existence until 1955. However, in 1954, La Moderna's
proprietor executed the 1953 contract on behalf of Panaderia La
Carmelita, a bakery which thereafter went out of business. As a
result, the proprietor still considered himself bound by that agree-
ment when he started La Moderna's operations in 1955. La Moderna
also signified at the meeting that it desired to continue as part of the
multiemployer group and to engage in joint negotiations in the future
as a member of this association.
Panaderia Los Andes: This Employer at no time executed the 1953
agreement, although it signed a 1-year contract with the Intervenor
in 1954, which provided the same wage scales for the classifications
of employees sought by the Petitioner as did the 1953 contract.13 At
the hearing, Los Andes stated that it considers itself a member of the
multiemployer group at the present time and that it desires to
negotiate jointly in conjunction with the other employers for future
contracts covering all of their employees.
Panaderia La Borinquen : This Employer has been in operation for
only a little more than a year, and has never been a signatory to an
agreement with any labor organization. La Borinquen testified at
the hearing that it wishes to bargain as a member of the employer-
group and that it desires to be bound by any jointly negotiated
contracts.
In determining the scope of bargaining units, the Board's policy
has always been that single-employer units are presumptively appro-
priate where there is no history of collective bargaining on a broader
basis.14 However, the Board will find appropriate a multiemployer
unit limited to those employers who have for a substantial period of
time personally participated in joint bargaining or delegated the
power to bind them in collective bargaining to a joint agent, and
13 This contract expired in 1955, and has not been renewed. It covered pastrymakers
and their helpers as well as bread bakers and their helpers. This Employer testified that,
although it was aware of the joint contract between the Intervenor and the multiemployer
group at the time it entered into this separate contract , it did not at that time consider
itself eligible to join that group inasmuch as it was a newly established business.
14 E. g., Arden Farms , 117 NLRB 318.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter have executed the resultant contracts.'5 The mere adoption
of such contracts by an employer who, although having an opportunity
to do so, has not participated in joint bargaining directly or through
an agent, will not afford sufficient basis for including his employees
in the multiemployer unit." However, where a petitioner seeks to en-
large an existing multiemployer unit consisting of members of an
employer association by adding thereto employees of a new member
who has manifested its desire to be bound in the future by joint action,
the Board has permitted such expansion of the unit in the absence of
any objection thereto by any other party."
We have carefully considered the case at bar in the light of the
foregoing principles, giving special consideration to the fact that here
we are dealing with new employers who have had as yet no opportunity
to engage in-or to refrain from engaging in-joint bargaining, due
to their recent formation. We believe that under such circumstances
the employees of such new employers may appropriately be added to
the existing unit, provided no party objects. Accordingly, the ques-
tion now to be determined is whether, in view of our decision herein as
to the other Employers involved, the Intervenor can be said to oppose
the inclusion of Villa Palmeras, La Moderna, Los Andes, and La
Borinquen in the multiemployer unit herein found appropriate.
At the hearing the Intervenor did not specifically oppose the addi-
tion of the employees of the 4 new Employers to a unit comprising
the employees of the other 10 Employers; rather, it took the more
general position that 14 separate-employer units were alone appro-
priate. However, we have already rejected this contention to the
extent of finding that the 10 Employers who have bargained jointly
in the past constitute an appropriate bargaining unit, and the record
does not indicate what the Intervenor's unit position would have
been with respect to Villa Palmeras, La Moderna, Los Andes, and
La Borinquen had it anticipated that the Board would make such a
unit determination.. We find, therefore, subject to the condition stated
below, that a multiemployer unit consisting of employees of all 14
Employers involved herein is appropriate, and shall direct an election
therein on the assumption that the Intervenor does not oppose the
inclusion of the 4 above-named Employers in such unit.
However, in the event that the Intervenor does in fact oppose the
inclusion of employees of these 4 Employers in the multiemployer
unit, it may so advise the Regional Director within 10 days from the
date of issuance of this Decision and Direction of Election. In such
event, the Regional Director is directed to dismiss the instant petition,
15E. g., Highway Transport Association of Upstate New York, Inc., et al., 116 NLRB 1718.
10 Ibid.
" Block Cut Manufacturers, Inc., 111 NLRB 265 ; Denver Heating, Piping and Air Con-
ditioning Contractors Association, 99 NLRB 251.
THE ROYAL LUMBER COMPANY 1015
insofar as it pertains to Villa Palmeras, La Moderna, Los Andes, and
La Borinquen, on the ground that it will not effectuate the purposes
of the Act to assert jurisdiction over these Employers,18 and the Re-
gional Director is further directed to proceed with an election in a
unit composed of employees of the 10 remaining Employers, which
unit, under these circumstances, the Board finds constitutes a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
The parties agree as to categories to be included in the unit. We
find, in accord with such agreement, and subject to the conditions
stated above, that the following employees of all the Employers con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act: 19
All bread bakers and their helpers at the Employers' plants located
in the metropolitan area of San Juan, Puerto Rico,20 excluding all
other employees, pastrymen, office clerical employees, administrative
employees, professional employees, executive personnel, watchmen,
guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
is As already stated, none of these Employers , considered alone, meets the Board's
jurisdictional standards.
19 The unit conforms to that contained in the 1953 contract.
Zs The plants of the Employers are at the following locations : Panaderia La Reguladora,
22 Calle Guadalcanal , Barrio Venezuela , Rio Piedras , Puerto Rico ; Panaderia La Francesa,
Pda. 6, Puerto de Tierra , San Juan , Puerto Rico ; Panaderia La Bombonera , 101 San Justo,
San Juan, Puerto Rico ; Panaderia El Diamante , Calle Mercado , San Juan, Puerto Rico ;
Panaderia La Jerezana , Calle Navis , Stop 15, Santurce , Puerto Rico ; Panaderia Bairoa,
Calle Sanchez , Stop 22, Santurce , Puerto Rico ; Panaderia La Castellana , 242 Ponce de
Leon Avenue , Stop 23 Y2 , Santurce , Puerto Rico ; Panaderia Sixto Ortega , 1610 Ponce de
Leon Avenue , Santurce , Puerto Rico ; Panaderia La Puertorriquena , Calle Loiza esq.
Corchado , Santurce , Puerto Rico ; Panaderia La Placita , Calle Dos Hermanos , Stop 19,
Santurce , Puerto Rico ; Dixie Bakery Products , Calle Nueva Pda. 23, Santurce , Puerto Rico ;
Panaderia Los Andes , Avenue Eduardo Conde esq . Corton, Villa Palmeras , Santurce,
Puerto Rico ; Panaderia La Borinquen , Calle Webb 602, Barrio Obrero, Santurce , Puerto
Rico ; Panaderia La Moderna , 372 Gautier Benitez, Santurce , Puerto Rico and Panaderia
Villa Palmeras, 302 Calle Providencia , Villa Palmeras , Santurce , Puerto Rico.
The Royal Lumber Company and Construction, Building Material
Drivers, Warehousemen and Helpers Local Union 311, I. B. T. C.
W. & H. of A., AFL-CIO, Petitioner . Case No. 5-RC-2086.
August 13, 1957
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation for certification upon consent election
entered into by the Petitioner and Employer on November 7, 1956, an
election was conducted on November 16, 1956, under the direction and
118 NLRB No. 133.