Century Biscuit Co.

In the Matter of CENTURY BISCUIT COMPANY and UNITED BAKING WORKERS L. I. U., No. 86 Case No. B-1092.-Decided November 28, 1938 Bakes y Industry-Investigation of Representatives : controversy concerning representation of employees : employer questions appropriateness of unit pro- posed and majority status of union therein-Unit Appropriate for Collective Bar- paining: production and maintenance employees, excluding truck drivers , sales- men, and supervisory and clerical employees; dissimilarity of working condi- tions-Election Ordered Mr. Walter B. Chiel f, for the Board. Davis, Pantzer, Baltzell d Sparks, by Mr. Paul Y. Davis, and Mr. Kurt F. Pantzer, of Indianapolis, Ind., for the Company. Mr. Elmer Whitman, of Indianapolis, Ind., for the United. Mr. Robert L. Condon, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 9, 1938, United Baking Workers L. I. U. No. 86, herein called the United, filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Century Biscuit Company, Indianapolis , Indiana, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 22, 1938, the National Labor Relations Board,herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 12, 1938, the Company filed a motion with the Regional Director to dismiss the petition herein on the ground that the petition 9 N. L. R. B., No. 118. 1257 1258 NATIONAL LABOR RLLATIO\ S I30 AI{D failed to allege that the question which had arisen concerned a unit appropriate for bargaining purposes. For reasons hereinafter appearing, this motion is hereby overruled. On September 30, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the United, and upon Team- sters & Chauffeurs Union, Local 135, herein called the Teamsters, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on October 20, 1938, at Indianapolis, Indiana, before Horace A. Ruckel, the Trial Examiner duly designated by the Board. The Board, the Company, and the United participated in the hearing. The Board and the Company were represented by counsel, and the United- by its representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Century Biscuit Company is an Indiana corporation with its plant and place of business in Indianapolis, Indiana. It is engaged in the production and sale of various bakery goods, including biscuits and cookies. The principal raw materials which it uses in the course of production are flour, sugar, shortening, molasses, spices, chocolate, -containers, and cases. During the year from July 1, 1937, to June,30, 1938, the Company purchased approximately $259,833 worth of these raw materials, of which approximately 30 to 40 per cent were shipped to its plant from outside the State of Indiana. The annual sales of the Company for the year 1937 amounted to $759,138, of which $290,060 were made and shipped from the plant to customers at points outside the State of Indiana. The Company employs approximately 125 employees. IT. THE ORGANIZATION INVOLVED United Baking Workers L. I. U. No. 86 is a labor organization affiliated with the Committee for Industrial Organization , admitting to its membership all production and maintenance employees of the Company, excluding truck drivers , salesmen, and supervisory and clerical employees. DECISIONS AND ORDERS III. THE QUESTION CONCERNING REPRESENTATION 1259 The United began to organize the production and maintenance em- ployees of the Company in May 1937. On September 25, 1937, the Company recognized the United as exclusive bargaining representa- tive of all its employees, whether members of the United or not, including truck drivers, but excluding salesmen, supervisory and clerical employees, and employees paid on a weekly or monthly basis. A contract was entered into by the Company and the United provid- ing for rates of pay, hours of work, and other working conditions of the employees represented. This contract expired August 2, 1938, and a request was made by the United of the Company to bargain with the United as exclusive representative of the classifications of employees admitted to its membership, that is, of the production and maintenance workers. The company refused to sign a new contract because it doubted that its production and maintenance employees, alone and without the truck drivers, constituted an appropriate unit, and, further, doubted that the United represented a majority of its employees in an appropriate unit. The Company undertook to maintain the status, quo pending a determination of the issues by this Board. We find that a question has arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT In its petition the United alleged that all production and mainte- nance employees of the Company, excluding truck drivers, salesmen, and supervisory and clerical employees, constituted a unit appropriate for the purposes of collective bargaining. The Company con- tends, however, that the truck drivers should not be excluded from the bargaining unit, that the appropriate unit consists of production and maintenance employees and truck drivers. It points out that the United in the contract which expired was accorded recognition for these employees and in negotiating that contract had bargained for them. However, it is also shown by the record that the truck drivers at no time were admitted to membership in the United. 1260 NATIONAL LABOR RELATIONS BOARD There are various considerations which persuade us to omit the truck drivers from the appropriate unit at the request of the United. The truck drivers work two-thirds of their time away from the plant. In consequence, their employment involves conditions in many re- spects different from the working conditions of the production and maintenance employees. There is also little actual contact between the drivers and'the other workers. Moreover, the production and maintenance employees have carried on single-handedly the or- ganizational drive and through the United were able to secure the contract which expired. The truck drivers, on the other hand. have been indifferent to collective action. An amount of friction disclosed itself in August 1937 upon a refusal of the drivers, with one excep- tion, to join a strike called by the United. As above noted, the United does not admit the drivers to membership, although it did represent and bargain for them. The United recently acknowledged the juris- diction of the Teamsters over the drivers, and the record shows that this other union has been engaged in organizational work among them. There exists, therefore, a labor organization through which drivers may bargain collectively, if they so desire. We are of the opinion that under all the circumstances the production and main- tenance employees constitute an appropriate unit and it is not in- appropriate to exclude the truck drivers. We find that the production and maintenance employees of the Company, excluding truck drivers, salesmen, and supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The United claimed to represent a majority within the unit we have found to be appropriate. However, no conclusive showing was made at the hearing substantiating this claim. An election by secret ballot is necessary to resolve the question concerning representation which has arisen. The parties agreed that in the event the Board directed an election, the Company's pay roll of October 15, 1938, should be taken in determining eligibility of employees to participate in the election. We see no reason to depart from the wishes of the parties. Accordingly we find that the employees eligible to vote in the election shall be those within the appropriate unit who were em- ployed during the pay-roll period immediately preceding October 15. 1938. Upon the basis of the above findings of fact and upon the entire record in the proceeding, the Board makes the following: DECISIONS AND ORDERS 1261 CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Century Biscuit Company, Indianapolis, Indiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production and maintenance employees of the Company, ex- cluding truck drivers, salesmen, and supervisory and clerical em- ployees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 Re- lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining .with Century Biscuit Company, Indianapolis, Indiana, an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction, under the direction and supervision of the Regional Director for the Eleventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the production and maintenance employees of Century Biscuit Company, who were employed during the pay-roll period immediately preceding October 15, 1938, excluding truck drivers, salesmen, and supervisory and clerical employees, and those who have since quit or have been dis- charged for cause, to determine whether or not they desire to be rep- resented by United Baking Workers L. I. U. No. 86 for the purposes of collective bargaining.