Stroehmann Brothers Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 988 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stroehmann Brothers Company and Bakery Factory
Workers, Local #116, AFL-CIO and Dairy and
Bakery Salesmen and Dairy Employees Union,
Local No. 316, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Party to the
Contract. Case 3-CA-8503
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 11, 1980, Administrative Law Judge
George Norman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief. In addition, the
General Counsel filed limited cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
The record reveals that Respondent's predeces-
sor, Ward Foods, Inc., operated a bakery and dis-
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In affirming the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(a)(2) of the Act by "permitting" Local No. 316
to solicit membership applications and dues-checkoff authorizations from
shipping employees, we note that Respondent's conduct involved far
more than passive permission. On the contrary, Respondent told shippers
that they had to join Local No. 316, and ratified similar statements made
by Local No. 316's agents when they distributed membership applications
and dues-checkoff authorizations.
We agree with the Administrative Law Judge that Respondent violat-
ed Sec. 8(a)(5) and (1) of the Act by refusing to recognize and bargain
with the Charging Party as the representative of the shipping employees,
and by entering into and giving effect to the collective-bargaining agree-
ment with Local No. 316 covering those employees. Accordingly, we
find it unnecessary to consider the Administrative Law Judge's additional
finding in the section entitled "Successorship" that Respondent violated
Sec 8(a)(5) and (1) of the Act by recognizing Local No. 316 as the col-
lective-bargaining agent of the shipping employees on April 13, 1978,
when those employees were not in Respondent's employ.
I The General Counsel contends that, in addition to the remedies pro-
vided by the Administrative Law Judge, Respondent should be ordered
to reimburse its shipping department employees for any dues and initi-
ation fees deducted from their wages and remitted to Local No. 316. We
agree and will amend the recommended Order accordingly. Member Jen-
kins would award interest here and on any backpay due in this proceed-
ing in accord with his dissent in Olympic Medical Corporation, 250 NLRB
146 (1980).
252 NLRB No. 139
tribution facility in Syracuse, New York. For ap-
proximately 40 years, the Charging Party had a
history of collective bargaining with Ward Foods,
and entered into a series of agreements with Ward
Foods covering a unit composed substantially of all
production, maintenance, and shipping employees.
Simultaneously, Ward Foods had a history of col-
lective bargaining and an agreement with Local
No. 316 covering the route salesmen, over-the-road
drivers, and mechanics. Several years ago, when
Ward Foods was apparently at the height of its
production, the Charging Party represented 140
employees, while Local No. 316 represented ap-
proximately 50-60 employees. In March 1978,
Ward Foods laid off its production employees, shut
down production, and operated throughout the
month of April as a distribution center for bakery
items shipped in from its other facilities. The par-
ties stipulated that during this period the Charging
Party negotiated over the effects of the production
shutdown on the production employees, and con-
tinued to represent the shipping employees. The
unit represented by Local No. 316 remained essen-
tially as it was before production ceased.
On or about April 29, 1978, Respondent bought
the facility, including the building, equipment,
trucks, and trade routes, and, on May 1, 1978, took
over the distribution operations. Nine of the ten
employees hired for the shipping department were
members of, and were represented by, the Charg-
ing Party. The parties agree that Respondent has
no plans for resuming production, and that Re-
spondent will continue to operate the distribution
center, distributing its own baked goods, and serv-
icing the same routes as had Ward Foods. Pursuant
to presale negotiations, Respondent has recognized
Local No. 316 as the collective-bargaining repre-
sentative of all its employees, including the ship-
pers, and has applied the terms of the collective-
bargaining agreement, including the union-security
clause, to all its employees. By letter dated May 5,
1978, the Charging Party demanded recognition as
the collective-bargaining representative of Re-
spondent's shippers. Respondent ignored this
demand.
Respondent contends that the production, main-
tenance, and shipping employees' unit historically
represented by the Charging Party did not survive
the purchase of the business from Ward Foods, and
that the remaining shipping employees do not con-
stitute an appropriate unit.
We think that, under the circumstances here
present, the shipping employees form an appropri-
ate unit in and of themselves. The shippers have
been represented separate and apart from the route
salesmen, over-the-road drivers, and mechanics for
988
STROEHMANN BROTHERS COMPANY
some 40 years. The latter employees, represented
by Local No. 316, constitute an appropriate histori-
cal bargaining unit, unaltered by the sale of the
business from Ward Foods to Respondent. Accord-
ingly, Respondent is clearly obligated to bargain
with Local No. 316 as the representative of that
unit.4 The shippers are the only other employees
on the scene who have not been represented by
Local No. 316, and they may not be so represented
in the absence of an election.5 Had these shipping
employees historically been part of an unrepresent-
ed group of production, maintenance, and shipping
employees, the Charging Party could have filed a
petition to represent them as a residual unit. 6 By
analogy, a unit composed of shippers is appropriate
where the Charging Party has long represented
them, albeit in a larger unit, and where "it may
reasonably be assumed that, as a result of transi-
tional changes, the employees' desires concerning
unionization [have not] likely changed." 7
We will amend the Administrative Law Judge's
Conclusions of Law to reflect a more accurate de-
scription of the appropriate unit.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 4 and substitute the
following:
"4. All shipping department employees employed
by Respondent at its Shonnard Street, Syracuse,
New York, location, excluding office clerical em-
ployees, guards and supervisors as defined in the
Act, transport drivers, route salesmen, relief sales-
men, student salesmen, swingmen, and garage per-
sonnel, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of
the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
4 See Fraser d Johnston Company, 189 NLRB 142, 151, fn. 50 (1971).
1 See Phorype, Inc., 145 NLRB 1268, 1272 (1964).
6 Weather Vane Outwear Corporation, Inc., 233 NLRB 414, 416 (1977).
The shippers are a homogeneous group, excluded from the established
bargaining unit represented by Local No. 316 We note that the shippers
are separately supervised, and employ skills which differ greatly from
those used by the salesmen/drivers. There is no direct evidence of on-
the-job contact between employees in the two units, nor is there evidence
that employees in either unit perform the work of employees in the other
unit.
I Mondovi Foods Corporation, 235 NLRB 1080, 1082 (1978). As is noted
above, Respondent hired 9 of its 10 shipping employees from those repre-
sented by the Charging Party and formerly employed by Ward Foods in
the production, maintenance, and shipping department Additionally, the
record reveals neither a hiatus in Respondent's resumption of operations
at the Syracuse facility, nor a change in the type of products distributed.
In essence. Respondent is conducting the same operation as was Ward
Foods at the time of the sale. and is employing essentially the same work
force. There is no evidence to suggest that the shippers do not Want to
continue to be represented by the Charging Party.
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Stroehmann Brothers Company, Syracuse, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Make its shipping department employees
whole for any dues and initiation fees which may
have been deducted from their wages and remitted
to Local No. 316, together with interest as pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bar-
gain collectively with Bakery Factory Work-
ers, Local #116, AFL-CIO, as to wages,
hours, and other terms and conditions of em-
ployment covering employees in the shipping
department.
WE WILL NOT recognize and bargain with
the Dairy and Bakery Salesmen and Dairy
Employees Union, Local No. 316, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, as the representative of the em-
ployees in the shipping department.
WE WILL NOT give effect to a collective-
bargaining agreement with Local No. 316 cov-
ering wages, hours, and terms and conditions
of employment, purporting to cover the em-
ployees of the shipping department.
WE WILL NOT permit Local No. 316 to so-
licit membership applications and dues-check-
off authorizations from the employees in the
shipping department.
WE WILL NOT deduct money from the pay
of the employees in the shipping department
and remit such money to Local No. 316 as
dues and initiation fees for said employees.
WE WILL NOT discriminate in regard to hire,
tenure, or terms and conditions of employment
of our employees because they are not mem-
bers of Local No. 316.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
989
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended.
WE WILL, upon request, recognize and bar-
gain collectively with Bakery Factory Work-
ers, Local #116, AFL-CIO, as the exclusive
bargaining representative of the employees in
the shipping department, the unit found appro-
priate, and, if agreement is reached, embody
such agreement in a signed contract.
WE WILL offer employee Joseph Alteri im-
mediate and full reinstatement to his former
job or, if that job no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or other rights and privi-
leges, and make him whole for any loss of
earnings he may have suffered by reason of
the discrimination against him, together with
interest.
WE WILL make our shipping department
employees whole for any dues and initiation
fees which we have deducted from their
wages and remitted to Local No. 316, together
with interest.
STROEHMANN BROTHERS COMPANY
DECISION
STATEMENT OF THF. CASE
GEORGE NORMAN, Administrative Law Judge: This
case was heard in Syracuse, New York, on September
27, 1979. The original charge was filed by Bakery Fac-
tory Workers, Local No. 116, AFL-CIO (Charging
Party), on May 19, 1978,' and an amended charge was
filed by the Charging Party on June 15. The complaint
based on those charges was issued on August 24 by the
General Counsel of the National Labor Relations Board
on behalf of the Board by the Regional Director for
Region 3. The complaint raises issues as to (a) whether
Stroehmann Brothers Company (Respondent) engaged in
a violation of Section 8(a)(l), (2), and (5) of the Act by
its refusal to recognize and bargain with Charging Party
and has unlawfully rendered assistance to Dairy and
Bakery Salesmen and Dairy Employees Local No. 316,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, by recognizing that Union as the bargaining agent of
all of the employees at its Syracuse sales agency, and (b)
whether the record evidence supports the allegations of
the General Counsel that Respondent unlawfully termi-
nated the employment of Joseph Alteri in violation of
Section 8(a)(1) and (3) of the NLRA, herein called the
Act.
The parties agreed that the 8(a)(l), (2), and (5) por-
tions of the complaint would be placed on the record by
way of a stipulation previously agreed to by the parties
I Unless otherwise indicated all events herein occurred in the year
1978.
relating to the 8(a)(2) and (5) allegations and any deriva-
tive 8(a)(1) allegation arising out of those allegations
with the addition of one additional paragraph.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Pennsylvania corporation with its
principal office and place of business in the city of Wil-
liamsport, Pennsylvania. Respondent has various plants,
places of business, warehouses, and other facilities in the
States of New York and Pennsylvania, including a facili-
ty at 237 Shonnard Street, Syracuse, New York. Re-
spondent has been, at all times material herein, engaged
in said plants and locations in the manufacture and distri-
bution of bread, pastries, and related products. During
the past year Respondent, in the course and conduct of
its business operations, purchased, transferred, and deliv-
ered to its Syracuse, New York, location bread, pastries,
and other goods and materials, valued in excess of
$50,000, which were transported to said locations direct-
ly from States of the United States other than the State
of New York.
Respondent has been, at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE ABOR ORGANIZATION
A. The Charging Party has been, at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
B. Dairy and Bakery Salesmen and Dairy Employees
Union, Local No. 316, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called Local No. 316,
has been, at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
As previously stated, the parties agreed that the
8(a)(l), (2), and (5) portions of the complaint would be
placed on the record by way of a stipulation previously
agreed to by the parties with the addition of one para-
graph as follows:
Also since on or about May 1, 1978, Respondent
permitted Teamsters Local No. 316 to solicit mem-
bership applications, induce checkoff authorizations
from shipping employees and has remitted the dues,
and administered the dues to the Teamsters Local
No. 316 from the shipping employees who executed
a dues checkoff authorization.
The remainder of the stipulation reads in pertinent part
as follows:
I. The Charging Party had a history of collective bar-
gaining and a series of successive agreements with Ward
990
STROEHMANN 3RO)HERS COMPANY
Foods, Inc., herein called Ward, for approximately 40
years until Ward ceased operations in Syracuse, New
York, on or about April 29, 1978. The most recent col-
lective-bargaining agreement had a term of June 29,
1975, to July 2, 1977, which was extended by a memo-
randum of agreement to July 1, 1979 (Jt. Exhs. 2(a) and
2(b)). The Charging Party represented a unit composed
substantially of all production and maintenance employ-
ees, including shipping employees.
2. Simultaneously, Ward had a history of collective
bargaining and an agreement with Teamsters Local No.
316, at the Syracuse, New York, facility with a term of
July 3, 1976, to March 31, 1979. Teamsters Local No.
316 represented route salesmen, over-the-road drivers,
and mechanics. (Jt. Exh. 3.)
3. On or about March 24, 1978, Ward ceased the pro-
duction of bread at its Syracuse facility, and on or about
March 31, 1978, roll production ceased, thereby ending
all production work at the facility. The production em-
ployees represented by the Charging Party were laid off
and Ward began negotiating with the Charging Party
over the effects of the production shutdown, including
severance pay.
4. It appears that just prior to stopping production,
Ward employed approximately 35 production employees
and 10 shipping employees represented by the Charging
Party and approximately 40 route salesmen, drivers, and
mechanics represented by Teamsters Local No. 316. At
maximum production approximately 2 years ago, Charg-
ing Party had represented about 140 employees and
Teamsters Local No. 316 approximately 50 or 60 em-
ployees.
5. Throughout the month of April 1978, Ward contin-
ued to operate from the Syracuse facility as a distribution
center for products shipped in and produced at other
Ward production facilities. During this period of time,
the employee complement represented by Tearnsters
Local No. 316 remained the same as it ewas prior to the
cessation of production, while the Charging Party con-
tinued to represent approximately 10 employees in ship-
ping.
6. ()n or about April 29, 1978, Ward sold the entire
operation to Respondent, who began operations on May
I. 1978. Respondent did not have an intention, and has
no intention, of resuming production at the previous
Ward facility, which was purchased in its entirety, in-
cluding the building, equipment, trucks, trade routes, etc.
Rather, Respondent has continued to operate the Syra-
cuse facility as a distribution center, servicing the same
routes Ward had, distributing its products baked at Re-
spondent's other facilities not involved in this proceed-
ng.
7. Respondent negotiated with Teamsters Local No.
316 prior to buying the facility, and on April 13, 1978,
recognized Teamsters Local No. 316 as the collective-
bargaining representative of all employees at its Syracuse
facility. Respondent assumed the collective-bargaining
agreement in existence between Teamsters Local No. 316
and Ward (Jt. Exh. 3) and subsequently, upon request by
Teamsters Local No. 316, negotiated hourly rates of pay
and other fringe benefits to be applied to the shippers.
8. On or about May 1, 1978, Respondent's branch
manager, Daniel O. Fuller, previously employed by
Ward as general sales manager, selected Alexander Kon-
stantinov, previously employed by Ward as production
supervisor, as head shipper in the shipping department, a
supervisor within the meaning of Section 2(11) of the
Act. Fuller directed Konstantinov to hire shippers based
upon proficiency.
9. On or about May 1, 1978, the following employees
were hired by Respondent to staff the shipping depart-
ment:
Employee
Joseph Alteri
Frederick Awad
John Gorman
Charles Braungart
Herbert Stummer
Mark Sweeney
Leslie Fischer
Richard McManus
Anthony Giglio
Michael Visconti
Date of Hire Last Date of Emplovment w/fWard
May I
May 1
May i
May I
May I
May 1
May 1
May I
May 4
May 13
April 29. 1978
April 29, 1978
April 29, 1978
March 4, 1978
April 15, 1978
April 15, 1978
Sept. 17, 1977
April 29, 1978
February 1978
February 19, 1978
Last Job Classification iw/ Ward
Shipping Clerk
Porter/Janitor
Shipper
Shipper
Shipper
Stale/Checker
Utility Man
Transport Driver
On-call Shipper
On-call Shipper
10. All of the employees referred to above in para-
graph 9, with the exception of Richard McManus, while
employed at Ward, were members of and within the bar-
gaining unit represented by the Charging Party.
McManus, a transport driver while employed by Ward,
was a member of and in the bargaining unit represented
by Teamsters Local No. 316.
1 II. Of the employees referred to above in paragraph 9,
only Alteri, Gorman, and Awad were employed by
Ward through April 29, 1978, when operations ceased.
Shippers Fischer and Visconti were employed elsewhere
when hired by Respondent.
12. Since May 1, 1978, Respondent had included the
shippers in the bargaining unit represented by the Team-
sters and had applied the terms of its collective-bargain-
ing agreement with Teamsters Local No. 316, including
the contract's union-security clause to said shippers.
13. By letter dated May 5, 1978, to Respondent, the
Charging Party's business representative, Wesley Good-
speed, demanded recognition as the bargaining agent of
all of Respondent's shippers. (Jt. Exh. 4). Respondent did
not respond to said demand.
;91I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Discharge of Joseph Alteri
Also at issue is the discharge of Joseph Alteri, which
the General Counsel alleges constitutes a violation of
Section 8(a)(1), (2), and (3) of the Act. Joseph Alteri was
employed by Ward Foods, Inc., as a shipping clerk from
August 19 until April 29 when Ward's operations ceased.
While so employed, Alteri and other shippers were rep-
resented by the Charging Party. Alteri's duties as a ship-
ping clerk for Ward prior to its cessation of bread pro-
duction on or about March 24 consisted primarily of
wheeling racks of bread from the end of the production
line to a shipping room floor. After Ward ceased baking
bread at its Syracuse plant Alteri broke down bulk, made
up drop and route orders, and loaded trailers and route
salesmen's trucks. While so employed, Alteri handled be-
tween five to eight different baked items.
When Ward's Syracuse facilities ceased bread produc-
tion and became a distribution center for products
shipped and produced at other Ward production facili-
ties, Alteri's function as a shipping clerk changed in cer-
tain respects. Alteri no long wheeled bread racks in the
production line to the shipping floor but, along with
other shipping employees, helped unload shipments of
baked products brought in from other Ward production
facilities. In addition, Alteri filled the drop shipment
orders and certain assigned route orders for all the prod-
ucts needed in that particular route.
In the middle of April, while employed by Ward,
Alteri was informed by Ward's general sales manager,
Daniel O. Fuller, that he wanted Alteri to continue on as
a shipping clerk for Respondent, but that Alteri would
have to join Teamsters Local No. 316 since Respondent
would recognize only one Union. At this time Respond-
ent had already recognized Local No. 316 as the collec-
tive-bargaining representative of all employees in the
Syracuse facility.
On or about May 1, Respondent's branch manager,
Daniel O. Fuller, previously employed by Ward as gen-
eral sales manager, selected Alexander Konstantinov,
previously employed by Ward as production supervisor,
as head shipper in the shipping department. Fuller direct-
ed Konstantinov to hire shippers based upon proficiency.
Konstantinov hired all the shippers with the exception of
Joseph Alteri and Richard McManus who were hired by
Fuller. Of the 10 shippers employed by Respondent all
but 1, McManus was previously employed by Ward
either at the time of takeover by Respondent or previ-
ously and represented by Charging Party. McManus at
the time of the takeover by Respondent was employed
by Ward as a transport driver and was a member of and
in the bargaining unit represented by Teamsters Local
No. 316.
Since May I, Respondent has placed its shipping em-
ployees in the bargaining unit represented by Teamsters
Local No. 316 and has applied the terms of its collective-
bargaining agreement with Teamsters Local No. 316, in-
cluding the contract's union-security clause to said ship-
pers. In addition, as previously indicated, Respondent
permitted Teamsters Local No. 316 to solicit member-
ship applications and dues-checkoff authorizations from
the shipping employees and has remitted dues and initi-
ation fees to Teamsters Local No. 316 from those ship-
ping employees who executed dues-checkoff authoriza-
tions.
On May 1, Alteri was employed by Respondent as a
shipper under the immediate supervision of Alexander
Konstantinov. Respondent has continued to operate the
Syracuse facility as a distribution center, servicing the
same routes Ward had, distributing its products baked at
Respondent's other facilities not involved in this pro-
ceeding. Respondent's branch manager, Fuller, testified
that Respondent's distribution operation is essentially the
same operation that it acquired from Ward.
As a shipper for Respondent, Alteri performed similar
functions to what he had performed at Ward when it
was engaged solely in distribution operations. Alteri's
duties for Respondent consisted of filling and loading
orders of baked products. Even though Respondent han-
dled a greater variety of baked goods with different
trade names than Ward handled and Respondent's ship-
pers picked from a basket order slips to be filled rather
than being assigned to fill certain routes, the shipping
function remained substantially the same.
On May 1, when Respondent began its operations it
did not need as many transport drivers as had been em-
ployed by Ward. Transport driver Richard McManus
was scheduled to be laid off on the basis of his lack of
seniority in the Teamsters Local No. 316 bargaining unit.
To avoid laying off McManus, Respondent hired him as
a shipper. However, because of the illness of transport
driver Charles Miller, McManus agreed to cover Miller's
route until Miller returned. On May 20, McManus as-
sumed his duties as a shipper upon transport driver Mill-
er's return from sick leave.
Alteri is Pressured To Join Local No. 316
On May 8, while at work, Alteri was approached by
the Teamsters Local No. 316 president, who informed
Alteri that the shippers would have to join Local No.
316. He told Alteri he had 30 days within which to join
and asked why Alteri wanted to wait 30 days. He also
informed Alteri that Respondent had 30 days within
which to lay him off and that Alteri would have to join
and to join now. He gave Alteri a Local No. 316 dues-
checkoff and membership card and approximately 15
minutes after that conversation the Local No. 316 ste-
ward asked Alteri where his card was. Alteri told him he
had 30 days within which to join. Within a half hour
Alteri was next approached by Branch Manager Fuller,
who told Alteri that he had to join Local No. 316. Alteri
told Fuller that he thought he had 30 days within which
to join. Fuller said, "Okay." Within the ensuing week,
the Local No. 316 steward approached Alteri on two oc-
casions for his dues-checkoff and membership card.
Alteri again told the steward that he had 30 days within
which to join the Union. The steward then accused
Alteri of telling other shippers not to sign cards. To the
date of the hearing Alteri had not joined Teamsters
Local No. 316. Since May 1, Respondent has paid its
shipping employees wages pursuant to the collective-bar-
gaining agreement it had with Local No. 316.
On May 26 Alteri was called to Daniel Fuller's office.
Present were Fuller, Konstantinov, and Michael Ap-
992
STROEHMANN BROTHERS COMPANY
pleby, Respondent's Olean, New York, facility shipping
supervisor. Fuller told Alteri that Respondent had reeva-
luated the amount of help in the shipping department,
that they had to lay one man off, and that he was the
least qualified shipper and therefore was chosen to be
laid off. Respondent contends that Alteri was chosen to
be laid off because of his performance, that he was
slower than the other shippers, and that he did not have
the desired attitude. On June 11, at approximately 10:30
a.m., Alteri received a phone call from Konstantinov at
home at which time he was told not to bother to come
to work the next day. In effect, former driver salesman
McManus replaced Alteri as a shipper.
Discussion and Conclusions
At issue herein is whether Respondent is a successor
to Ward's distribution operations within the meaning of
N.L.R.B. v. The William J. Burns International Detective
Agency, Inc., 406 U.S. 272 (1972). If Respondent is found
to be a successor, its refusal to recognize and bargain
with the Charging Party with respect to the shipping
employees employed in the distribution department is a
violation of Section 8(a)(5) of the Act.
Also at issue is whether Respondent violated Section
8(a)(2) of the Act by (a) recognizing Teamsters Local
No. 316 on April 13 as a collective-bargaining agent of
the shipping employees, despite the fact that Local No.
316 did not represent a noncoerced majority of the ship-
ping employees; (b) entering into and giving effect to a
collective-bargaining agreement with Local 316 covering
the shipping employees unit; (c) permitting Local No.
316 to solicit membership applications and induce check-
off authorizations from the shipping employees despite
the fact the shipping employees are members of or repre-
sented by the Charging Party; and (d) deducting from
the wages of the shipping employees and remitting such
money to Local No. 316 as dues and initiation fees.
And finally, has Respondent violated Section 8(a)(1),
(2), and (3) of the Act by laying off Joseph Alteri, a
member of Charging Party and an employee in the bar-
gaining unit represented by the Charging Party?
Successorship
I find that Respondent is a successor employer to
Ward Foods, Inc., and as such is required to recognize
the Union chosen by Ward's employees. I base that con-
clusion on the following factors (1) continuity in the
business operation, in that the operation is essentially the
same as that previously conducted by Ward and (2) a
continuation of the same types of product lines, depart-
mental organization, employee identity, and job func-
tions.
Respondent took over Ward's routes, shipping facili-
ties, and employed all of Ward's former driver salesmen
as driver salesmen. Nine out of 10 of Respondent's ship-
pers were former Ward employees although not all were
in the employ of Ward at the time of the takeover by
Respondent. The driver salesmen and shippers perform
substantially the same services as previously and at the
same facility. Respondent retained the designations
"driver salesmen" and "shippers" and although it at-
tempted to change the composition of the driver sales-
men unit by including the shippers, it still retained the
designation "shipper" for the shippers and kept them or-
ganizationally apart from the driver salesmen. At the
time of the transfer of driver salesman McManus from
driver salesmen to shipper Respondent observed the sep-
arate job functions and organizational identities of the
driver salesmen and shippers. In other words, it did not,
in recognizing Local No. 316, commingle the shippers
with the driver salesmen nor did it use both classifica-
tions for shipping and driving interchangeably. Burns,
supra, N L.R.B. v. Zayre Corp., 424 F.2d 1159 (5th Cir.
1970); S. S. Kresge Company, K-Mart Division v.
V.L.R.B., 416 F.2d 1225 (6th Cir. 1969).
Although Respondent hired only a fraction of Ward's
former unit members represented by the Charging
Union, the "continuity in the work force" issue is deter-
mined by the proportion of employees in the work force
of the alleged successor who had formerly been em-
ployed by the predecessor, rather than the proportion of
the predecessor's employees who were hired by the al-
leged successor. N.L.R.B. v. Band-Age, Inc., 534 F.2d
(Ist Cir. 1976), enfg. 217 NLRB 449 (1975); Geronimo
Service Co., 191 NLRB 450 (1971), enfd. 467 F.2d 903
(10th Cir. 1972).
As previously indicated, only three of the shippers
hired by Respondent were employed as shippers by
predecessor Ward at the time of Respondent's takeover.
The fact that the remaining shippers (except McManus
who was employed at the time of takeover as a driver
salesman) who were former Ward employees were not
Ward employees at the time of the takeover is also not
controlling. As the General Counsel points out in his
brief, Geronimo, supra, made the observation that "a ma-
jority of the employees employed by Geronimo Ihad at
some time been United Service Employees." (Emphasis
supplied).
As indicated above, concerning continuity in the em-
ploying industry, Respondent uses substantially the same
facilities and work force to produce the same products
for essentially the same customers in the same geograph-
ic area. Thus the test set down by the Board in Miami
Industrial Trucks, Inc. and Bobcat of Dayton, Inc., 221
NLRB 1223 (1975), has, in my judgment, been met in
this case. Respondent's branch manager, Daniel Fuller,
who was formerly general sales manager for Ward indi-
cated in his testimony that Respondent's distribution op-
eration is essentially the same operation that was ac-
quired from Ward and continued from May 1, 1978. Re-
spondent has continued to operate its Syracuse facilities
distribution center servicing the same routes serviced by
Ward, and, like Ward just prior to the takeover, Re-
spondent's products are baked at its other facilities not
involved in this proceeding.
Inasmuch as at the time Respondent took over Ward's
operations, Ward was operating its Syracuse facility only
as a distributor of products baked elsewhere, Respondent
took over and continued Ward's identical operation. I do
not consider it material that Ward was previously en-
gaged in a baking operation at the Syracuse facility at
some time prior to the takeover. Respondent's takeover
993
DECISIONS OF NATIONAL L.AIOR RELATIONS BOARD
of the route salesmen, routes, and shipping operation,
which is all that predecessor Ward was engaged in at the
time, is controlling on the question of successorship.
Also as previously indicated there is no basis for find-
ing that the shippers became an accretion to the Local
No. 316 unit. In addition to having had a long history of
bargaining in a unit separate from the Local No. 316
unit, Respondent did not commingle the two operations,
the driver salesmen and the shippers. That Respondent
maintained them as separate entities is evidenced by the
fact that it changed McManus' job function from driver
salesman to shipper in order not to lay him off because
his services as a driver salesman were no longer needed.
Accordingly, I find that Respondent is a successor em-
ployer within the meaning of Burns, supra, and therefore
Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Charging
Party, the collective-bargaining representative of the
shipping employees.
In addition, Respondent violated Section 8(a)(5) of the
Act by recognizing Local No. 316 on April 13, 1978, as
the collective-bargaining agent of the shipping employees
at a time when these employees were not in Respond-
ent's employ. Furthermore, the entering into and giving
effect to the collective-bargaining agreement with Local
No. 316 on May 1, 1978, covering the shipping employ-
ees, notwithstanding that Local No. 316 did not repre-
sent an uncoerced majority of the shipping employees,
was a further violation of Section 8(a)(5) and (1) of the
Act.
I find that Respondent violated Section 8(a)(2) of the
Act by giving assistance and support to Local No. 316 at
a time it was under an obligation to recognize and bar-
gain with the Charging Party with respect to the ship-
ping employees. The basis for that finding is (1) recog-
nizing Local No. 316 as a collective-bargaining agent of
the shipping employees, (2) entering into and giving
effect to a collective-bargaining agreement with Local
No. 316 covering the shipping employees, (3) permitting
Local No. 316 representatives to solicit membership ap-
plications and dues-checkoff authorizations from the
shipping employees, and (4) deducting moneys from the
wages of the shipping employees and remitting such
moneys to Local No. 316 as dues and initiation fees.
The Discharge of Joseph Alteri
I agree with the General Counsel that, if it were not
for Respondent's decision to hire Richard McManus as a
shipper to avoid laying him off in the unit represented by
Local No. 316, no need would have arisen to lay off
Joseph Alteri. It laid off Alteri to make room for Rich-
ard McManus. Respondent's decision to lay off one ship-
per occurred when McManus assumed the duties of ship-
per. While testifying, Branch Manager Fuller was asked
whether McManus enjoyed any seniority as a result of
having been a former member of Local No. 316.
Q. Would he be, in your judgment, a senior to
the other members of the shipping staff by virtue of
having been a former member of 316?
A. I would have to say, yes.
Alteri, a long-time shipping employee of Ward was
asked by Fuller, who, during the many years they were
associated at Ward, was obviously well aware of Alteri's
qualifications and ability to perform, to remain as a ship-
per in what Fuller describes as "essentially the same op-
eration." Within 2 weeks thereafter Alteri was regarded
a poor performer with a poor attitude by the same Fuller
who initiated Alteri's employment with Respondent. As
for Alteri's poor attitude, I can only conclude by the evi-
dence presented on the record that the poor attitude was
Alteri's reluctance to join Local No. 316 before his 30
day grace period was up. I am convinced that Alteri was
laid off by Respondent because he availed himself of his
rights to wait the full 30 days before joining Local No.
316 and Respondent's desire to make room for Local No.
316 member McManus. Accordingly, I find that Re-
spondent violated Section 8(a)(1), (2), and (3) by laying
off Joseph Alteri, a member of and in the bargaining unit
represented by the Charging Party, to provide a position
in the shipping employees unit for a member of Local
No. 316.
IV. THE .FFFECT OF THE UNFAIR I.ABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with the interstate operations of Re-
spondent, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact, and
upon the record as a whole, I make the following:
CONCL.USIONS OF LAW
1. Stroehmann Brothers Company, Respondent herein,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Bakery Factory Workers, Local No. 116, AFL-
CIO, the Charging Party, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Dairy and Bakery Salesmen and Dairy Employees
Local Union No. 316, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Party to the Contract herein, is
a labor organization within the meaning of Section 2(5)
of the Act.
4. All production and maintenance employees of Ward
Foods, Inc., and its successor, Respondent, employed at
the Shonnard Street, Syracuse, New York, location, in-
cluding shipping department employees, excluding office
clerical employees, guards, and supervisors as defined in
the Act and transport drivers, route salesmen, relief
salesmen, student salesmen, swingmen, and garage per-
sonnel, constitute a unit appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act.
5. All route salesmen, relief salesmen, student sales-
men, swingmen, transport drivers, and garage personnel
employed by Ward Foods, Inc., and its successor, Re-
spondent, at the Shonnard Street location, excluding all
office clerical employees, guards, and supervisors as de-
fined in the Act and all other employees, constitute a
994
STRO()EMANN BROTHERS COMPANY
unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act.
6. For approximately 40 years, the Charging Party has
been the chosen contractual collective-bargaining repre-
sentative of the employees in the unit described in para-
graph 4, above, the most recent contract running from
July 2, 1977, to July 1, 1979, and, by virtue of Section
9(a) of the Act, has been, and is now, the exclusive rep-
resentative of all of the employees in said unit for the
purpose of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
7. By refusing to recognize and bargain with the
Charging Party as exclusive representative of the bar-
gaining agent of all of the employees in the unit de-
scribed in paragraph 4, above, Respondent has violated
Section 8(a)(5) and (1) of the Act.
8. By recognizing Local No. 316 as the collective-bar-
gaining agent of the employees of the unit described in
paragraph 4, above, despite the fact that Local No. 316
did not represent an uncoerced majority of the employ-
ees in said unit, and by entering into a collective-bargain-
ing agreement covering wages, hours, and other terms
and conditions of employment on or about May 1, 1978,
purporting to cover the employees in the unit described
in paragraph 4 above and by giving effect to that collec-
tive-bargaining agreement since that date, Respondent
has violated Section 8(a)(1), (2), and (5) of the Act.
9. By permitting Local No. 316 to solicit membership
applications and dues-checkoff authorizations from the
employees in the unit described in paragraph 4 above de-
spite the fact the employees were members of and repre-
sented by the Charging Party, Respondent violated Sec-
tion 8(a)(2) and Section 2(6) and (7) of the Act.
10. By deducting moneys from the pay of the employ-
ees in the unit described in paragraph 4 above and remit-
ting such moneys to Local No. 316 as dues and initiation
fees for the employees involved, Respondent has violated
Section 8(a)(2) and Section 2(6) and (7) of the Act.
II. By terminating the employment of Joseph Alteri, a
shipper, and by refusing to reemploy him because Joseph
Alteri was not a member of .ocal No. 316, Respondent
violated Section 8(a)(1), (2), and (3) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMII)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having
found that Respondent interfered with, restrained, and
coerced, and is interfering with, restraining, and coerc-
ing, its employees in the exercise of their rights guaran-
teed in Section 7 of the Act, and thereby engaged in and
is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)( ) and Section 2(6)
and (7) of the Act, by its refusal to recognize and bar-
gain with the Charging Party as its exclusive bargaining
agent of the employees in the unit described in para-
graph 4 above: by recognizing Local No. 316 as the col-
lective-bargaining agent of the employees in said unit de-
spite the fact that local No. 316 did not represent an un-
coerced majority of the employees in said unit; by enter-
ing into a collective-bargaining agreement covering
wages, hours, and terms and conditions of employment
purporting to cover the employees in said unit and by
giving effect to that collective-bargaining agreement; by
permitting Local No. 316 to solicit membership applica-
tions, and dues-checkoff authorizations from the employ-
ees in the unit described in paragraph 4 above, despite
the fact that the employees were members of and repre-
sented by the Charging Party; by deducting moneys
from the pay of the employees in said unit and remitting
such moneys to L.ocal No. 316 as dues and initiation fees
for the employees involved: and by terminating the em-
ployment of Joseph Alteri, a shipper, and by refusing to
reemploy him because he as not a member of Local
No 316. I shall recommend that Respondent be ordered
to cease and desist therefrom.
I shall also recommend that Respondent cease and
desist from discriminating in regard to the hire and
tenure and terms and conditions of employment of its
employees, thereby encouraging membership in one
labor organization and discouraging membership in an-
other labor organization, and engaging in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(3) and Section 2(6) and (7) of the Act by its ter-
mination of the employment of Joseph Alteri and its re-
fusal to reemploy him because he was not a member of
Local No. 316. I shall also recommend that Respondent
cease and desist from refusing to bargain collectively
with the representative of its employees in the unit de-
scribed in paragraph 4 of the Conclusions of Law and to
cease recognizing Local No. 316 as the collective-bar-
gaining agent of the employees in said unit despite the
fact that Local No. 316 does not represent an uncoerced
majority of said employees and cease giving effect to the
collective-bargaining agreement covering wages, hours,
and terms and conditions of employment covering said
employees in violation of Section 8(a)(5) and Section 2(6)
and (7) of the Act.
I shall recommend that Respondent be ordered to bar-
gain with the Charging Party as the exclusive representa-
tive of the employees in the unit described in paragraph
4 of the entitled Conclusions of Law.
I shall also recommend that Respondent be ordered to
offer employee Joseph Alteri immediate reinstatement to
his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
and make him whole for any loss of earnings he may
have suffered by reason of the discrimination against
him. Any backpay found to be due shall be computed in
accordance with the formula set forth in F. W Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
995
I)ECISIO)NS ()F NATIONAl LABOR RELATIONS BOARD
ORDER 2
The Respondent, Stroehmann Brothers Company,
Syracuse, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Bakery Factory Workers, Local No. 116, AFL-CIO, as
to wages, hours, and other terms and conditions of em-
ployment covering employees in the unit found appropri-
ate herein.
(b) Recognizing and bargaining with the Dairy and
Bakery Salesmen and Dairy Employees Union Local No.
316, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the representative of the employees in the
shipping department.
(c) Giving effect to a collective-bargaining agreement
covering wages, hours, and terms and conditions of em-
ployment, purporting to cover the employees of the ship-
ping department.
(d) Permitting Local No. 316 to solicit membership ap-
plications and dues-checkoff authorizations from the em-
ployees in the shipping department.
(e) Deducting moneys from the pay of the employees
in the shipping department and remitting such moneys to
Local No. 316 as dues and initiation fees for said em-
ployees.
(f) Discriminating in regard to hire, tenure, and terms
and conditions of employment of its employees because
they are not members of Local No. 316.
I2 the event no exceptions are filed as provided by Sec. 102,46 of the
Rules and Regulations of the National l.abor Relations Board, the find-
ings, conclusions, and recomtrmended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions. and Order and all objections thereto
shall be deemed waived for all purposes.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative steps necessary to ef-
fectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with Bakery Factory Workers, Local No. 116, AFL-
CIO, as the exclusive bargaining representative of the
employees in the shipping department, the unit found ap-
propriate herein and, if agreement is reached, embody
such agreement in a signed contract.
(b) Offer employee Joseph Alteri immediate reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings
he may have suffered by reason of the discrimination
against him in the manner set forth in the section entitled
"The Remedy."
(c) Post at its plant in Syracuse, New York, copies of
the attached notice marked "Appendix." 3 Copies of said
notice on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof and be maintained by it for 60 days thereafter in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
In the event that this Order is enforced by a Judgment (if the United
States Court of Appeals, the words in the notice reading "Posted by
Order of tha National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
996