Continental Baking Co.

In the Matter of CONTINENTAL BARING COMPANY and LOCAL UNION No. 57, BAKERY AND CONFECTIONERY WORKERS' INTERNATIONAL UNION OF AMERICA, A. F. OF L. Case No. 9-R-2064.-Decided April 25, 1946 Mr. George Faunce, Jr., of New York City, Mr. A. W. Owens, of Detroit, Mich., and Mr. George Hecker, of Columbus, Ohio, for the Company. Mr. L. K. Ballenger, of Columbus, Ohio, for the AFL. Mr. A. L. Carson, of Columbus, Ohio, for the CIO. Mr. John, A. Nevros, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by Local Union No. 57, Bakery and Confectionery Workers' International Union of America, A. F. of L., herein called the AFL, alleging that a question affecting com- merce had arisen concerning the representation of employees of Con- tinental Baking Company, Columbus, Ohio, herein called the Com- pany, the National Labor Relations Board provided for an appropriate hearing upon due notice before Harold M. Weston, Trial Examiner. The hearing was held at Columbus, Ohio, on March 8, 1946. The Company and the AFL appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Although Local 340, United Bakery and Con- fectionery Workers' Union, United Retail, Wholesale & Department Store Employees of America, CIO, herein called the CIO, was duly served with Notice of Hearing, it did not appear. However, subsequent to the hearing, the CIO filed with the Board a Motion to Intervene 1 1 The CIO asserted, in a letter accompanying this motion , that due to matters which ,were entirely beyond its control, it was impossible for it to be represented at the hearing. ,67 N. L. R. B., No. 98. 767 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in which it urged (1) that the petition be dismissed on the ground that its contract of April 11, 1945, with the Company is a bar to this proceeding, and (2) that, if the Board denied its request for dismissal, it be placed on the ballot in any election that might be directed by the Board. In view of the existence of contractual relations between the Company and the CIO, as set forth in Section III, infra, since Feb- ruary 22, 1942, and their last contract dated April 11, 1945, the CIO had as of the time of the hearing a representative interest among the employees in the unit hereinafter found appropriate. Therefore, al- though the CIO's motion is not timely, inasmuch as an election is here- inafter directed, we shall grant only that part of the motion to inter- vene which requests a place on the ball Ot.2 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF TILE COMPANY Continental Baking Company, a Delaware corporation having its principal office and place of business in New York City, is engaged in the business of manufacturing and distributing bakery products. It operates and maintains in the course of its business 84 plants in 28 States and the District of Columbia. In the majority of its plants, in- cluding its plant at Columbus, Ohio, with which this proceeding is solely concerned, the Company is engaged in the production and sale of Wonder Bread, a nationally advertised product. During 1945, the Company purchased for use in its Columbus plant raw materials, consisting principally of flour, milk, yeast and salt, and valued in excess of $500,000. Approximately 80 percent of the value of the raw materials represented purchases from sources outside the State of Ohio. During the same period, all the Company's finished products at its Columbus plant, valued in excess of $1,500,000, were sold within the State. The Columbus plant forms an integrated and coordinated part of the Company's business, which is national in scope. The Company admits, and we find, that it is engaged at its Columbus, Ohio, plant in commerce within the meaning of the National Labor Relations Act.' It. THE ORGANIZATIONS INVOLVED Local Union No. 57, Bakery and Confectionery Workers' Inter- national Union of America, affiliated with the American Federation 8 See Matter of Robert Gair Company, Inc , 65 N L R B 267 ; and Matter of Cleveland Clefs Iron Company ( Marine Department ), 63 N L R B. 674 Cf Matter of United Boat Service Corporation , 55 N L R B 671 3 See N L R B v. Van de Kamp 's Holland -Dutch Bakers, Inc, 152 F ( 2d) 818 (C. C. A. 9), deeded January 7, 1946 , enf'g as mod 56 N L. R. B 694. CONTINENTAL BAKING COMPANY 769 of Labor, is a labor organization admitting to membership employees of the Company. Local 340, United Bakery and Confectionery Workers' Union, United Retail, Wholesale & Department Store Employees of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On February 9, 1946, the AFL notified the Company that it repre- sented a majority of the employees in the alleged appropriate unit, and requested recognition as their exclusive bargaining representa- tive. On February 14, 1946, the Company replied that inasmuch as it had been recognizing the CIO as the exclusive bargaining agent for such employees, it desired a determination of the question concerning representation by the Board. The Company and the CIO have been in contractual relationship since February 22, 1942. The most recent contract between the parties was entered into on April 11, 1945, and was effective retroactively from February 18, 1945 to February 16, 1946 "and thereafter until a new agreement has been consummated and signed, or this agreement, after the above-mentioned date of expiration, has, upon thirty (30) days written notice, been cancelled or terminated" by the Company or by the CIO. Neither party to the contract has given such notice of termination or cancellation, but the CIO, by letter dated February 8, 1946, notified the Company that it wished to open negotiations for a new contract. It is apparent that the contract between the Company and the CIO became, at the termination of its initial period of approximately 1 year on February 16, 1946, a contract of indefinite duration. Although the parties were still operating under the terms of this contract at the time of the hearing, it is clear, under well established principles of the Board, that the contract cannot operate as a bar to this proeeeding.4 A statement of a Board agent, introduced into evidence at the hearing, indicates that the AFL represents a substantial number of employees in the unit hereinafter found appropriate.' We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4 Matter of Great Bear Logging Company , 59 N L R B 701 ; and Matter of General Electric Company, 48 N. L. R B. 1044. 5 The Field Examiner reported that the AFL submitted 56 applications for membership bearing the names of employees listed on the Company's pay roll for the period ending February 21, 1946 , and that there are approximately 64 employees in the alleged appropriate unit 692145-46-vol 67-50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE APPROPRIATE UNIT The AFL seeks a unit of all employees at the Company's Columbus, Ohio, plant, excluding truck drivers, office and clerical employees, the entire sales force, superintendents, foremen, and executives. The Com- pany takes no position with respect to the appropriate unit; however, it agrees with the AFL that this unit, although described in different terms herein, is identical to the one covered by the contract between the CIO and the Company. In view of the foregoing, we find that all employees at the Company's Columbus, Ohio, plant, excluding truck drivers, office and clerical employees, the entire sales force, foremen, superintendents, executives, and all or any other supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Continental Bak- ing Company, Columbus, Ohio, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Ninth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay- roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who CONTINENTAL BAKING COMPANY 771 present themselves in person at the polls, but excluding those em- ployees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by Local Union No. 57, Bakery and Confectionery Workers' International Union of America, A. F. of L., or by Local 340, United Bakery and Confectionery Workers' Union, United Retail, Wholesale & Department Store Employees of America, CIO, for the purposes of collective bargaining, or by neither.