Purity Baking Co.

PURITY BAKING COMPANY 159 Thereafter, the Board's Decision and Order was considered by the United States Court of Appeals for the Fifth Circuit, upon petitions to review filed by the Respondent and by four individual intervenors, and the Board's cross-petition for enforcement of its order. On January 14,1959, the court handed down its opinion.' The court set aside the decision of the Board, denied enforcement of the Board's order, and remanded the cases for any appropriate proceedings not inconsistent with its opinion. The court rejected the Board's contention that there had been a refusal to bargain because it was not satisfied that the Board, in the representation proceeding, had adequately safeguarded the rights of the individual Intervenors, who should have been permitted to vote. Thereafter, on May 5, 1959, the Respondent filed a motion seeking dismissal of the complaint herein, and revocation of the Union's certificate. In conformity with the court's opinion, which is the law of the case, we therefore find that the Respondent did not refuse to bargain with the Union, and weeshall dismiss the complaint herein. We shall also revoke the Union's certificate. [The Board dismissed the complaint and revoked the Certification of Representatives issued by the Board on October 26, 1955.] B Shoreline Enterprises of America, Inc. v. N.L R.B., 262 F. 2d 933 (C.A. 5). Purity Baking Company and Local No. 63, Bakery and Confec- tionery Workers' International Union of America ,' Petitioner Miller-Patton Baking Company 2 and Local No. 63, Bakery and Confectionery Workers' International Union of America, Peti- tioner. Cases Nos. 13-RC-6436 and 13-RC-6434. July 17, 1959 DECISION AND ORDER Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Robert G. Mayberry, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with the case to a three-member panel [Members Rodgers, Bean, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act. 3 The Petitioner local and its International are hereinafter called Local 63 and BOW, respectively. 2 The name of the Employer appears as amended at the hearing. 124 NLRB No. 19. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organizations involved claim to represent certain em- ployees of the Employers.' 3. No question affecting commerce exists concerning the representa- tion of employees of the Employers within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. The Petitioner seeks to represent separate single-plant units of bakery personnel at the Employers' plants at Ottawa and Rockford, Illinois. The Intervenor moved to dismiss the petitions asserting that : (1) They are untimely because they were filed within the first year of the Intervenor's certification; (2) the amended petitions, modified within the insulated 60-day period before the expiration of the contract, are untimely as they substantially changed the size and composition of the unit originally requested; and (3) the single-plant units sought by the Petitioner are inappropriate, as the bargaining history for the past 8 years has been on a multiplant basis. Purity Baking Company, an Illinois corporation, operates baking plants in Decatur, Champaign, Urbana, Bloomington, Ottawa., and Peoria, Illinois. Its subsidiary, Miller-Patton Baking Company,4 operates a baking plant in Rockford, Illinois. A Purity plant at. Pana, Illinois, has been recently shut down. Although each plant has'its own manager, their operations are closely controlled through certain rules and regulations, promulgated in the Employer's "general shop manual." Here are set forth the Employer's policies and pro- cedures relating to the plant operation, qualifications for employment, and the scope of the managers' responsibilities. Each plant is visited frequently by the general production superintendent, who has over- all responsibility for production at all plants. The amount and types of goods to be baked at each plant are determined by the management of the central office. Each plant specializes in certain types of baked goods which are shipped to other Purity plants for consolidation with their goods before delivery is made to the Employer's wholesale customers. Only those purchases not exceeding $200 may be made by a plant manager. There is occasional interchange of equipment and raw materials between the various bakeries, and although there is very little shifting of employees, the Employer has on occasion moved an entire shift between plants to increase production. 8 The Illinois Bargaining Association for the Good and Welfare of Purity Employees of the American Bakery and Confectionery Workers' International Union, AFL-CIO, herein- after called ABC Association, was allowed to intervene at the hearing on the basis of its certification and contract . After the hearing, the constituent locals of the ABC Associa- tion, Locals 63, 189, and 316, ABC, moved to intervene on the ground that they have an interest in the representation of the employees involved. The motion to intervene is hereby granted. 4 The Purity Baking Company and Miller-Patton Baking Company are hereinafter. called Employer or Purity. PURITY BAKING COMPANY 161 The Bargaining History From 1946 to 1950, the employees of the Pana, Decatur, Champaign, Urbana, Bloomington, and Ottawa plants, and the employees of other baking plant employers in downstate Illinois, were represented by the Bakery Workers Council, BCW. The Rockford plant was not included in the statewide unit. At all times, the employees of the Peoria plant, with whom we are not now concerned, have been repre- sented in a single-plant unit by a local of BCW, not a member of the Council. In 1950, as a result of a monthlong strike, the Employer withdrew from the multiemployer association and executed individual contracts- with the locals representing its employees. However, in February 1951, the three BCW locals which represented Purity employees, being dissatisfied with the wage differentials among the various plants, formed the Purity of Illinois Division, BCW, to act as their sole collective-bargaining agent. Its negotiating committee was composed of a BCW international representative, who acted as chairman, and individual plant representatives.' It was customary for the employees in each plant to make suggestions to their plant representative who, in turn, would inform the negotiating committee. All proposals would then be consolidated in the form of a unified demand. In February 1951, Purity of Illinois Division, BCW, and the Employer executed the first of successive 1-year contracts covering the employees of all the Purity plants except Peoria. The contracts' provided for seniority on a plantwide basis, but made no other distinctions among the employees in the separate plants. All employees within a given classification received identical wage rates. Work schedules, vaca- tions, holidays, shop rules, grievance procedures, and pension and welfare benefits were all uniform. From 1951 until 1956, the parties continued to negotiate and execute 1-year contracts, but on May 1, 1957, they signed a 2-year agreement to expire April 30, 1959. On December 12, 1957, BCW was expelled from the AFL-CIO on grounds of corruption, and soon thereafter Local 316 BCW, repre- senting two-thirds of the employees of the multiplant unit, disaffili- ated from BCW, obtained a charter from the American Bakery and Confectionery Workers' International Union, AFL-CIO,' and filed a representation petition. In the Board's decision,' based on that s On occasions, the negotiating meetings would be conducted with some of the plant representatives not in attendance. O The only contract offered in evidence was the 1958 ABC Association contract. The parties agreed , however, that the 1957 BCW contract was identical to the one now before us, and that since 1951 , the terms of the yearly contracts applied to all Purity em- ployees regardless of their place of employment. 7 Hereinafter called ABC. 8 Purity Baking Co., 121 NLRB 75. 525543-60-vol. 124-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition, we held that the schism had disrupted the established bar- gaining relationship, and that the BCW contract would not bar the petition. Pursuant to that decision, an election was held in the seven- plant unit, and the ABC Association,' having received a majority of the votes cast, was subsequently certified on August 20, 1958. Immediately following the certification of the ABC Association, BCW informed the Employer that the employees had lost their rights in the BCW pension and welfare fund. Consequently, the Employer and the ABC Association agreed to sign a new contract which would adopt the current BCW contract provisions for the balance of the term, retroactive to the date of the election, and thus make the Purity employees eligible to participate in the ABC pension and welfare fund. In September 1958, the Employer and an ABC international representative adopted the contract as agreed upon, without nego- tiation on any other subject. The instant petitions were filed Febru- ary 26, 1959, 63 days before the expiration date of the contract, April 30,1959. The Intervenor asserts that because of its good-faith concern over the pension and welfare rights of the Purity employees, it did not have the opportunity to negotiate and execute a wholly new contract within the certification year and, therefore, the petition of the B-CW should be dismissed under the Centr-O-Cast 10 rule. We disagree. As it is clear that the parties entered into a new contract in the certifica- tion year, we find that the petitions of February 26, 1959, were timely filed with respect to the expiration date of the ABC Association contract." We likewise find no merit to the intervenor's second contention that the amended petitions are untimely as they changed the size and com- position of the units described in the original petitions. Although: the original petitions requested "all bakers" and the amended descrip- tion included various other categories, it is clear that "bakers" ' was• used in a general sense to describe all production employees engaged s At the request of the Petitioner , the ABC Association appeared on the ballot instead of ,the Petitioner. 10 In Centr-O-Caat & Engineering Company, 100 NLRB 1507, the Board established the rule that all petitions filed within the certification year of an incumbent union would be dismissed as premature . However, in Ludlow Typo graph Company, 108 NLRB 1463, we held that where an employer and a certified union execute one contract within the certifi- cation year , the certification year merges with that contract, after which there is no need to protect the certification further, and the contract becomes controlling with respect to the timeliness of the filing of a rival petition. 11 The Great Atlantic and Pacific Tea Company, 123 NLRB 1005 , on which the Inter- venor relies , is not controlling. There the employer, who was party to a BCW contract, refused to agree to a consent election involving the ABC and BCW unless ABC agreed' in advance to be bound by BCW's contract in the event it won the election . ABC did win the election, assumed the BCW contract , and was faced with a BCW petition during the certification year. In these circumstances, we found that no new contract had been entered into within the certification year , and accordingly dismissed the petition under the Centr-O-Cast rule . Here the parties , regardless of their belief that prompt action was essential , voluntarily entered into a new contract within the certification year. PURITY BAKING COMPANY 163 in baking and related operations. As the employees sought in the original petitions can be identified with reasonable accuracy, the filing date of the original petitions, and not the date of amended petitions, is controlling." In the former Purity decision, we found, pursuant to a stipulation of the parties, that the multiplant unit which the Purity of Illinois Division, BCW, had represented since 1951 was appropriate. The Petitioner, in support of its contention that the two single-plant units which it seeks are appropriate, asserts that although the Rockford and Ottawa plants were included in the multiplant contracts over the past 8 years, they have maintained their local autonomy. It compared their status to those of the local unions in the "master agreement" cases wherein single-plant units were found to be appropriate despite bargaining which resulted in a basic agreement covering many plants.13 However, unlike those cases, none of the plants involved here had the authority to augment the uniform bargaining contract in any respect by supplemental agreements. Although a witness for the Petitioner testified that Local 63, BCW, whose members are em- ployed at the Ottawa and Rockford plants, had always maintained its independence in relation to bargaining, it is clear that once the negotiating committee of the Purity of Illinois Division had agreed among themselves and executed a contract, that contract immediately became binding on all Purity employees, without the necessity of sub- sequent ratification or formal approval by members of the Locals.14 We are satisfied that the separate identities of each plant, for bargain- ing purposes, have been completely merged into a multiplant unit since 1951.11 In view of the bargaining history, the high degree of integrated and centralized managerial control of all plants within the unit, the inter- dependence of the plants in the Employer's production and distribu- tion system, the similarity of functions of all employees, and their uniform working conditions and fringe benefits, we find that single- plant units are not appropriate for the purposes of collective bargain- ing.16 Accordingly, we shall dismiss both petitions. [The Board dismissed the petitions.] 12 Deluxe Metal Furniture Company, 121 NLRB 995, footnote 12. '- Continental Can Company, Inc., Plant No. 11, 110 NLRB 1042; American Can Company, 109 NLRB 1284 ; Hygrade Food Products Corporation, 85 NLRB 841. 14 There is no evidence in the record that any such requirement was ever utilized or agreed upon, or that any local ever attempted to reject the executed contract. >s In contending that single-plant units are appropriate, the Petitioner asserts that the Rockford and Ottawa employees ( 1) are loyal to BCW ; ( 2) have demanded that the Employer recognize Local 63, BCW, as their bargaining agent; ( 3) have demanded that their checked-off dues be turned over to Local 63, BCW ; and (4) have purportedly with- drawn from multiplant bargaining . We perceive no valid reason why the aforementioned conduct of these employees, even if fully proved, establishes the appropriateness of single- plant units in the face of the bargaining history and other factors supporting a multi- plant unit. See Kaiser Aluminum & Chemical Corporation, 100 NLRB 105, 107. 1e See McAllister's Dairy Farms, Inc., 118 NLRB 1117; The Interstate Company, 118 NLRB 746; Paxton Wholesale Grocery Company, 123 NLRB 316 ; Kaiser Aluminum Chemical Corporation, 100 NLRB 105 and 107.