Taystee Bread Co.

National Labor Relations Board - Board Decisions

Mar 11, 1954

107 N.L.R.B. 1529 (N.L.R.B. 1954)

TAYSTEE BREAD COMPANY 1529
As already stated , there is an established line of progres-
sion from the positions of field engineer and inspection engi-
neer to the position" of assistant staff engineer . Assistant
staff engineers are currently represented by the Petitioner
as part of its professional unit . We find, therefore , that the
employees herein sought by the Petitioner may be properly
included in the existing professional unit . We shall direct an
election by secret ballot in the following voting group:
All inspection engineers , field engineers , and industrial
engineers at the Employer's Whiting refinery, but excluding
nurses, research engineers in the engineering research de-
partment , . all other employees , guards, and supervisors as
defined in the Act.
If a majority of the employees in this voting group vote for
the Petitioner , they will be taken to have indicated their de-
sire to join the employees in the existing professional unit.
The Petitioner may bargain for them as part of such unit,
and the Regional Director is instructed to issue a certificate
of results to that effect . If, however , a majority vote for the
Intervenor , they will be taken to have indicated a desire to
remain a part of the Intervenor ' s existing unit, and the Re-
gional Director is instructed to issue a certification of
results of election to that effect. -
[Text of Direction of Election omitted from publication.]
Member Beeson took no part in the consideration of the
above Decision and Direction of Election.
AMERICAN BAKERIES COMPANY, d/b/a TAYSTEE BREAD
COMPANY and UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, LOCAL NO. 345, AFL, Peti-
tioner . Case No. 32-RC-661. March 11, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Anthony J.
Sabella , hearing officer . The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent em-
ployees of the Employer.'
iBakery and Confectionery Workers Union, Local 149, AFL, herein termed the intervenor,
was granted permission to intervene at the hearing.
107 NLRB No. 314.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the
following reasons:
The Petitioner seeks a unit of all maintenance employees
at the Employer's Memphis plant. The Employer and the In-
tervenor oppose the granting of an election on the ground that
the petition requests an inappropriate unit.
There are approximately 230 employees in the Employer's
Memphis plant of whom about 150 are engaged in production
and maintenance work or are in allied work classifications
such as stock clerk, freight truckman, raw-stock man, and
porter. The Employer has 9 regular maintenance employees
and 1 temporary worker in the maintenance section. These
employees are under the supervision of the chief engineer
who, along with the production superintendent, reports to the
plant manager. Maintenance personnel work through the entire
plant and are in frequent contact with production workers.
Their duties consist , generally, of keeping the plant machines
in operation and making necessary repairs and adjustments.
They set up machines as well as move them and may do an
incidental amount of carpenter or electrical work. The main-
tenance employees receive frequent assistance in this work
from the production employees and the latter, indeed, may
make repairs and adjustments without recourse to the main-
tenance group. Tools for such purposes are kept in locations
accessible to both production and maintenance groups.
All maintenance employees now at the plant were hired
without training in any particular craft and were instructed
on the job. The hours and general working conditions of both
production and maintenance employees are the same and
wage rates for maintenance personnel are in the same general
range as those of production workers . Contrary to the con-
tention of the Petitioner, the record does not establish that
these employees possess skills of a type and degree sufficient
to attain craft status and they serve no a p p r e n t i c e s h i p
period.
Since 1940 the Employer and the Intervenor have signed
successive contracts covering a unit consisting of all pro-
duction employees. These contracts are negotiated yearly by
a negotiating committee of the Memphis bakeries which meets
with the Intervenor. The terms of the proposed contract are
accepted or rejected by the Intervenor's membership and
individual contracts are signed by the separate bakeries. The
employer bargaining group is not a formal association and
the terms of the contract negotiated,are not binding upon the
individual employers. The pattern, however, has been one of
consistent approval of the contracts by the individual employers.
These contracts, with the exception of that signed by the Em-
ployer, uniformly cover a unit of all production and maintenance
employees. The exclusion of maintenance employees at the
TAYSTEE BREAD CO1v1PANY 1531
Employer's plant alone arose as a result of the membership
of the Employer ' s former chief engineer in Operating Engi-
neers Local No. 92 . Because of the type of boiler formerly
used at the Employer's Memphis plant , a licensed engineer
was required by city ordinance to be employed at the plant.
The former chief engineer , a licensed engineer employed
because of this requirement , persuaded the Employer to con-
tract separately , with the Operating Engineers , to which he
belonged , for its maintenance personnel . Despite this sepa-
rate contract arrangement, however, little or no negotiations
were carried on between the Employer and the Operating Engi-
neers and their contracts covering the Employer's mainte-
nance personnel were merely revised yearly to reflect those
changes in the contract negotiated between the citywide em-
ployer group and the Intervenor concerning maintenance em-
ployees at the other bakeries . In or about 1951 a new boiler
was installed at the Memphis plant making the requirement
of a licensed engineer no longer applicable , and the former
chief engineer left the employment of the Employer . The Op-
erating Engineers , since that time, has not approached the
Employer for a renewal if its contract , and, although served
with notice of hearing herein , did not appear or request in-
tervention.
The Petitioner contends that the Employer ' s maintenance
personnel are, in fact , millwrights , and entitled to separate
representation . The Employer and the Intervenor assert that
the maintenance employees are not skilled craftsmen or other-
wise entitled to separate representation but are appropriately
a part of the citywide multiemployer unit.
The Board has previously held that maintenance employ-
ees--who normally comprise a multicraft grouping--may be
separately represented in the absence of a history of bargaining
on a broader basis.2 It is quite clear , however , that the unit
proposed by the Petitioner does not sa.tisfy these require-
ments or those of a so-called residual unit . The record shows
not only that the Employer ' s maintenance personnel are not
skilled employees of craft status but also that maintenance
employees performing similar tasks are uniformly included
with production employees throughout the rest of the multi-
employer unit of which the Employer is a part . Further, there
is no question but that the Employer ' s maintenance employees,
despite their ostensible representation by the Operating Engi-
neers, have also been subject to the same terms and conditions
of employment as negotiated by the Intervenor for maintenance
employees throughout the multiemployer unit . We do not con-
sider, therefore , that the facts as set forth herein constitute
either a history of separate representation or of a residual
unrepresented status . Nor do those decisions cited by our
2 ,See l lalliburton Portland Cement Company, 91 NLRB 717; Borden's Soy Processing
Company, 88 NLRB 1208, Armstrong Cork Company, 80 NLRB 1328; and cases cited there-
in
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dissenting colleague , each occurring in a materially different
factual setting , indicate a contrary precedent . We find, there-
fore , that the Employer's maintenance personnel do not con-
stitute an appropriate unit either on a departmental or residual
basis.
On the entire record, the Board finds that the Employer's
maintenance employees may appropriately be included within
the multiemployer , citywide unit of production and mainte-
nance employees now represented by the Intervenor. While
the Employer and the Intervenor request that the Board order
inclusion of such employees without recourse to an election,
the Board has previously ruled that such employees are en-
titled to ' an election on the question of whether or not they
desire to be placed in the broader unit .3 We perceive no valid
reason for deviation from this rule in the instant case. How-
ever, as the unit sought by the Petitioner is inappropriate for
purposes of collective bargaining and as the Intervenor has
neither requested an election in the maintenance group nor
made the required showing of interest therein , we shall dismiss
the instant petition.
[The Board dismissed the petition.]
Member Peterson dissenting:
I cannot agree with the action of my colleagues in dismissing
the petition in this case . For approximately 11 years the
maintenance employees sought by the Petitioner were repre-
sented in a separate unit . For about the last 3 years they have
not been represented by any labor organization . Yet, despite
this history, the majority finds that they are appropriately a
part of the multiemployer, citywide production and maintenance
unit represented these 14 years by the Intervenor, which until
this proceeding never evidenced any desire to be their bar-
gaining agent . I believe that , to say the least , this achieves an
anomalous result. For although the Intervenor has not re-
quested an election among the maintenance employees or made
the necessary showing of interest to support such an election
and may never do so, these employees are effectively deprived
of, and thoroughly insulated from, an opportunity for repre-
sentation by any other labor organization . Thus, the effect
of the majority decision is that , notwithstanding its past dis-
interest in the maintenance employees , all the Intervenor's
potential competitors for these employees are eliminated from
the field and the employees in effect become the private pre-
serve of the Intervenor . Indeed, even if the Intervenor should
3See Great Lakes Pipe Line Company, 92 NLRB 583 and cases cited therein . Cf. An-
heuser-Busch, Inc., 102 NLRB 800
TAYSTEE BREAD COMPANY 1533
lose an election for them, no other union can represent them
separately. If they desire representation, it must be by the
Intervenor, provided the Intervenor is similarly disposed. If
they do not wish the Intervenor to be their bargaining agent
or it is unwilling to represent them, their only recourse is to
be unrepresented.
In my opinion, the result reached by the majority is not
only inadvisable for the reasons heretofore stated, but also
clearly contrary to Board precedents. It is well established
by Board decisions that, in the absence of bargaining history
on a broader basis, a maintenance unit is appropriate4 and
the presence of craftsmen in the group is not a sine qua non. 6
As there has been no bargaining history for the maintenance
employees sought by the Petitioner on any basis for the past
3 years, in accordance with these decisions they should con-
stitute an appropriate departmental unit. Moreover, in light
of the fact that the only bargaining history for this group is
one of separate representation for 11 years rather than on
a broader basis, it would seem that, a fortiori, they are an
appropriate unit. Indeed, if this mode of representation had
continued through the last 3 years, there would be no question
as to the propriety of the unit.6 Furthermore, assuming ar-
ug endo that my colleagues are correct in their conclusion
that the maintenance employees involved herein do not com-
prise an appropriate departmental unit, there is still another
reason for permitting them to be separately represented, if
they so desire. Where, as here, an unrepresented group is
the only such group, there are many Board decisions holding
that the employees involved constitute a separate unit which
is appropriate because of its residual nature , quite apart from
its appropriateness on other grounds.'
In view of the foregoing , I would find the maintenance em-
ployees sought by the Petitioner an appropriate departmental
or residual unit and would direct an election giving them the
opportunity to indicate their desires with respect to repre-
sentation by the Petitioner.
Member Beeson took no part in the consideration of the
above Decision and Order.
4See National Carbon Company, 107 NLRB 1486; Mrs. Tucker's Products Division of
Anderson, Clayton and Company, Inc., 106 NLRB 1243; General Dyestuff Corp., 100 NLRB
1311; Western Kentucky Gas Co., 97 NLRB 917; Armstrong Cork Co., 80 NLRB 1328
5J C. Penney Company, 92 NLRB 1286.
6Iowa Public Service Co., 102 NLRB 701; Anheuser-Busch, Inc., 102 NLRB 803; Illinois
Cities Water Company, 87 NLRB 109.
7 See for example, California Cornice Steel and Supply Corp., 104 NLRB 787; Marion
Manufacturing Company et al , 101 NLRB 256; Central Mercedita, Inc., 100 NLRB 1505;
Houston Lighting & Power Co., 100 NLRB 76; Jacobs Mfg. Co., 99 NLRB 482.
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