United Biscuit Co. of America

National Labor Relations Board - Board Decisions

Mar 13, 1959

123 N.L.R.B. 202 (N.L.R.B. 1959)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither is there merit in the General Counsel 's argument that the Board was
entitled to rely on Respondent 's earlier representation of compliance . Respondent's
letter of September 25, 1956, stated only its belief that proper reinstatement had
been offered the discriminatees . There is no evidence that the Board's representa-
tives accepted that without question, or as an absolute assurance, or that they
failed to investigate it. Indeed , it is difficult to see how, in their constant checking
and rechecking of the amounts due for back wages, they could have failed to con-
sider the questions (ultimately raised by Greene) whether certain of the discrimi-
natees had in fact been put on different jobs and at different pay. Furthermore,
Ramsey's testimony showed that Wall not only raised the question in one instance,
but that he absolved Respondent after further investigation.
Thus the evidence showed that so far as compliance with the prior order was
concerned , the remedying of the reinstatements stood on substantially the same
ground as the payment of the back wages. Both were subject to the Board's check-
ing, and both were settled as promptly as the progress of the Board's compliance
procedures permitted.
Because of the conclusions herein reached, it is necessary to consider the Re-
spondent's contentions only briefly.
The main burden of Respondent 's argument was that, having bargained to com-
pliance with the 8 ( a)(5) portion of the order, it cannot, as a matter of law, be
precluded from a full acquittance on that portion of the directive because of the
pendency of questions concerning compliance with the 8(a)(3) provisions of the
order . Respondent conceded that there are no cases which support that conten-
tion , and the Trial Examiner rejects it as a sound principle of law. In the present
case , for example , if Respondent had wilfully or deliberately withheld reinstate-
ment from the discriminatees pending termination of its short-term contract with
the Union , it could well have been precluded from asserting a loss of majority
which may have been attributable to those unremedied unfair labor practices.
Respondent argued at one point that the only manner by which the Board could
seek to remedy the alleged violation was through contempt proceedings in the
court of appeals . That contention is rejected; a new Section 10(b) proceeding
was plainly an appropriate alternative action . Thompson Products, Inc., v.
N.L.R.B., 133 F. 2d 637, 639-40 (C.A. 6); cf. N.L.R.B. v. Reed & Prince Manu-
facturing Company, 196 F. 2d 755, 759-60 (C.A. 1).
In conclusion , I find on the basis of the entire evidence and for the reasons
stated above that Respondent has not refused to bargain within the meaning of
the Act.
[Recommendations omitted from publication ]
Bowman Biscuit Company, Division of United Biscuit Company
of America and American Bakery and Confectionery Workers
International Union, AFL-CIO, Petitioner. Case No. 30-RC-
1442. March 13, 1959
SECOND SUPPLEMENTAL DECISION AND DIRECTION
OF THIRD ELECTION
Pursuant to Supplemental Decision, Order, and Direction of Sec-
ond Election 1 issued by the Board on October 22, 1958, in the
above-entitled proceeding, a second election by secret ballot was
conducted on November 7, 1958, under the direction and supervision
of the Regional Director for the Seventeenth Region, among the
employees in the unit found appropriate by the Board. Upon the
conclusion of the election the parties were furnished a tally of
ballots. The tally showed that, out of approximately 469 eligible
I Unpublished.
123 NLRB No. 32.
BOWMAN BISCUIT COMPANY 203
voters, 448 ballots were cast of which 256 were for the Petitioner ;
191 were for the Bakery and Confectionery Workers International
Union of America (Independent) and Biscuit and Cracker Workers,
Local 240, Ind., the Intervenor herein ; one ballot was challenged ;
and none were void.
On November 13, 1958, the Intervenor filed timely objections
to conduct affecting the results of the election. On January 15,
1959, following an investigation, the Regional Director issued and
duly served upon the parties his report on objections, in which
he found no merit in the objections, recommended that the objections
be overruled, and the Petitioner be certified as the bargaining
representative of the employees in the unit. The Intervenor filed
timely exceptions to the report on objections.
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
Fanning].
The Intervenor's objections allege, inter alia, that just prior to
the election herein, the Employer and Petitioner negotiated and
executed a national agreement for a number of plants including
the one involved herein, and that if the latter was not in fact
covered by'the agreement, the Petitioner, in its preelection campaign,
misrepresented such fact to the employees in the instant unit.
The Regional Director's report shows that on October 31, 1958,
the United Biscuit Company, of which the Employer is a subsidiary,
and the Petitioner signed a 'national agreement, effective November
1,1958 , covering seven plants located in various parts of the country,
but not the plant here involved.
On November 4, 1958, 3 days before the election involved herein,
this contract was first called to the attention of employees in the
unit by the Petitioner's distribution of the following handbill
printed in boldface type :
NEW
UNITED BISCUIT CONTRACT
EFFECTIVE
November 1, 1958
Negotiated by
ABC-AFL-CIO
Provides for
WAGE INCREASE OF 12c 1958
WAGE INCREASE OF 11c 1959
WAGE RATE PROTECTION
On New Machines and Methods
IMPROVED VACATIONS
OTHER IMPROVEMENTS
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Representatives of National ABC Negotiating Committee will
discuss all Terms of New Contract and answer all questions,
at a meeting on November 5, 1958.
On November 6, 1958, the day before the election, the Petitioner
distributed a second handbill to the employees in the unit, printed
in boldface type in the form of election ballot, reading in part :
WE ALL VOTE
FOR A NEW AND BETTER CONTRACT EFFECTIVE
NOV. 1, 1958 SIGNED CHICAGO, ILLINOIS, OCT. 31, 1958
BY UNITED BISCUIT COMPANY OF AMERICA AND
ABC-AFL-CIO FOR-WAGE INCREASE 23c PER HOUR
1958-1959
VOTE
AFL
CIO
ABC
Following the same format, the handbill lists other benefits of the
agreement and at the end there was an "X" marked in a box under
the name of the Petitioner.
On November 5, the Petitioner mailed to the employees a docu-
ment captioned "Guarantee," containing seven closely printed para-
graphs, one of which stated that the Petitioner guarantees the
employees a contract equal to the national agreement.
Accepting the Regional Director's finding that the national agree-
ment was not in fact applicable to the instant plant, we are unable
to agree with his further conclusion that the record failed to
establish that the Petitioner did not- mislead the employees to the
contrary. In our opinion, it is clear from the timing, the format,
and the text of the handbills of November 3 and 6, that the Peti-
tioner intended to convey the erroneous impression to the employees
and for the latter reasonably to believe that they would automati-
cally become beneficiaries of the national agreement if they voted
for the Petitioner. The only contrary indication is the statement
included in the text of the "Guarantee," mentioned above. How-
ever, we do not believe that this isolated statement was sufficient
to correct the false impression, dramatically created in the handbills.
In our opinion the misrepresentation of the true facts not only
added prestige to the Petitioner and placed it in an advantageous
position but also lowered the standards of campaigning to a level
which impaired the untrammelled expression of free choice by
the employees in the unit. We find, therefore, that the aforesaid
objection raises material and substantial issues concerning conduct
THE KROGER COMPANY 205
affecting the results of the election .2 Accordingly, we shall set aside
the second election in this case and order that a third election
be held.
[The Board set aside the election held on November 7, 1958.]
[Text of Direction of Third Election omitted from publication.]
2.We do not deem it necessary to make a determination as to the remaining objections
of the Petitioner.
The Kroger Company and Bakers Union No. 4 of Greater
St. Louis, American Bakery and Confectionery Workers Inter-
national Union , AFL-CIO , Petitioner and Local Unions No. 4
Auxiliary and 254, Bakery and Confectionery Workers Inter-
national Union of America, Joint Petitioners . Cases Nos.
14-RC-3404 and 14-RC-3438. March 13, 1959
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
On December 2, 1958, pursuant to a Decision and Direction of
Elections issued on October 28, 1958,' as later amended,2 elections
were conducted under the direction and supervision of the Regional
Director for the Fourteenth Region among, the employees in the vot-
ing groups found appropriate by the Board. At the conclusion of
the elections, the parties were furnished with tallies of ballots. The
tally for group 1 showed that of approximately 261 eligible voters,
88 voted for Local Unions No. 4, No. 4 Auxiliary, and 254, Bakery
and Confectionery Workers International Union of America
(BCW) ; 120 voted for Bakers Union No. 4 of Greater St. Louis,
American Bakery and Confectionery Workers International Union,
AFL-CIO, herein called ABC; and 3 cast challenged ballots. The
challenged ballots were insufficient in number to affect the results.
The tally for group 2 showed that, of approximately 111 eligible
voters, 81 voted for, and 17 against, Locals No. 4 Auxiliary and 254,
BCW. There was 1 void ballot.
On December 5, 1958, the three BCW locals filed objections to
conduct affecting the results of the election. The Regional Director
investigated the objections and, on January 22, 1959, issued and
served upon the parties his report, finding the objections to be with-
1 Unpublished.
2 By telegraphic Order, dated November 21, 1958, granting Motion to Correct Decision
and Direction of Elections , filed by Intervenors , Local 4-A and 4, Bakery and Confec-
tionery Workers International Union of America ; and by Order Amending Direction of
Elections , dated November 25, 1958, authorizing Regional Director 15 additional days in
which to hold the elections.
123 NLRB No. 30.