Ward Baking Co.

In the Matter of WARD BAKING COMPANY and UNITED RETAIL & WHOLESALE EMPLOYEES OF AMERICA, AFFILIATED WITH THE C. I. O. Case No. R-1715.Decided March 11, 1940 Bakery IudusOy-Investigation of Representatives: controversy concerning representation of employees : rival organizations ; company refused to grant recognition to petitioning union unless certified by the Board ; closed-shop contract with rival union, in effect over a year and since then terminable upon 30 days' notice, no bar to determination of representatives-Unit Ap- propriate for Collective Bargaining: no controversy as to; all inside employees in the bake shop. slicing and wrapping departments, shipping room, and main- tenance depaitment, excluding supervisory, office, and garage employees, con- stitute-Representatives: eligibility to participate in choice : no controversy as to 57 named employees ; dispute as to 2 employees suspended by rival union party to closed-shop contract; no determination made since record does not disclose whether discharged or laid off by employer-Election Or- dered : in event of challenge, ballots of employees permitted to vote without determination of eligibility to be segregated for subsequent consideration. Mr. Robert R. Rissman, for the Board. Mr. J. W. Hines, of Chicago, Ill., for the Company. Mr. Oliver A. Switaer, of South Bend, Ind., for the United. Mr. Patrick J. Taft, of Washington, D. C., Mr. Janes Cross, of Chicago, Ill., and Mr. Fred Probst, of South Bend, Ind., for the International. Mr. John Green, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On December 22, 1939, United Retail & Wholesale Employees of America, affiliated with the C. I. 0., herein called the United, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) a petition alleging that a question affecting commerce had arisen concerning representation of employees of Ward Baking Com- pany, South Bend, Indiana, herein called the Company, and request- ing an investigation and certification of representatives, pursuant 21 N. L. R. B., No. 44 483 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 16, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Sec- tion 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an in- vestigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 22, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the United, and Bakery and Confectionery Workers' International Union of America, Bakers Local Union No. 207, herein called the International, a labor organization named in the petition ,Is claiming to represent employees directly affected by the investigation.' Thereafter, on or about January 24, 1940, the International filed a motion with the Regional Director for postponement of the hearing for a period of 30 days. This motion was denied by the Regional Director by an order issued on January 25, 1940, copies of which were duly served upon all the parties. On January 26, 1940, the Regional Director issued a notice of continuance, postponing until February 5, 1940; the hearing theretofore scheduled to be held on January 29, 1940. Copies of this notice were duly served upon all the parties. Pursuant to the notice of continuance, a hearing was held on Feb- ruary 5, 1940, at South Bend, Indiana, before John T. Lindsay, the Trial Examiner duly designated by the Board. The Board, the Company, the United, and the International were represented and participated in the hearing. 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 these rulings of the Trial Examiner and funds that no prejudicial errors Were com- mitted. They are hereby affirmed. At the close of the hearing, the International moved to dismiss the petition herein on the ground that the United had not shown a substantial interest in the appropriate unit as set forth in the petition. The Trial Examiner took the motion under advisement. For the reasons sufficiently appearing herein- after, the motion is denied. 'This appears to be the correct designation of the International, which is variously referred to in the record as "Bakery and Confectionery Workers' International Union of America, Bakers Local Union" ; "Bakery & Confectionery Workers of America, Affiliated with the American Federation of Labor, Local 207" ; and "Bakery and Confectionery Workers' International Union of America , Union Local No. 207." WARD BAKING COMPANY 485 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Ward Baking Company, a New York corporation with its principal place of business in New York City, is engaged in the business of baking, selling, and distributing bakery products. It maintains and operates 21 plants and warehouses in various States in the United States, located in the eastern, southern, and midwestern portions of the United States. This proceeding involves the Company's plant located at South Bend, Indiana, herein called the South Bend plant. The principal raw materials used by the Company in the operation of the South Bend plant are flour, sugar, shortening, yeast, milk, salt, and sundry ingredients. For the year ending December 31, 1939, the total value of such materials purchased by the Company for the South Bend plant amounted to $185,265, approximately 75 per cent of which were purchased outside the State of Indiana. During the same period the Company transported in its own trucks finished bakery products, amounting to approximately $94,500, from its Chicago plant, located at Chicago, Illinois, to the South Bend plant, where they were sold together with $731,668 of products baked at the South Bend plant. Approximately 24 per cent of the finished bakery products transported from the Chicago plant to the South Bend plant, and approximately 24 per cent of the products baked at the South Bend plant, were sold and transported from the South Bend plant during 1939 to places outside the State of Indiana, including 41 cities and towns located in the State of Michigan, the deliveries being made daily by 56 trucks operated by the Company from the South Bend plant. The Company's products are sold and distributed under trademarks and brand names registered in the United States Patent Office, and are advertised in publications of national circulation. The Company normally employs 127 employees at the South Bend plant. 11. THE ORGANI ZATIONS INVOLVED - United Retail & Wholesale Employees of America, is it labor or- ganization affiliated with the Congress of Industrial Organizations and admits to membership employees of the Company. At some time during the period between December 12, 1939, and February 5, 1940, United Retail & Wholesale Employees of America chartered Local 2S3032-41-col, 21--32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 273, which also admits to membership employees of the Com- pany. 2 Bakery and Confectionery Workers' International Union, Bakers TTnion Local No. 207, is a labor organization affiliated with the American Federation of Labor and also admits to membership em- ployees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On December 6, 1938, the Company and the International entered into a collective agreement, which included a provision for a closed shop and covered employees in the unit which the parties in the in- stant case agree is the appropriate unit for the purposes of collective bargaining. By its terms the agreement is effective for 1 year and thereafter until terminated on 30 days' notice by either party or until replaced by a new agreement. Under date of October 16, 1939, Larry Kendziora, 3 an employee of the Company and recording secretary of the International, wrote Lhe Company that the International desired to "reopen their contract for further negotiations on wages and working conditions." Under date of November 1, 1939, the Company replied that it would arrange such conference as soon as possible. Thereafter, Kendziora and Theodore C. Hans, manager of the South Bend plant, agreed to meet on December 16, 1939. On the morning of December 14, 1939, Kendziora asked that the meeting be cancelled, Kendziora having meanwhile become a member of the United and undertaken to or- ganize the Company's employees in that organization. The organizational campaign by the United, referred to above, be- gan on or about December 12, 1939. By letter dated December 13, 1939, the South Bend Industrial Council, affiliated with the C. I. 0., herein called the Council, wrote to the Company, stating that a major- ity of its employees had signed up with "the C. I. 0." and that it would shortly communicate with the Company with respect to an agree- ment. Subsequently, by a letter dated December 18, 1939, the Council wrote to the Company, asserting that "the inside men 4 in your plant are all in the C. I. 0." and stated that it would probably ask for a conference on the next day. On December 19, 1939, the United met with the Company, reiterated its claim of majority designation, and requested recognition by virtue of such representa- tion. The Company replied that it had an agreement with the Inter- 2 At the hearing the parent organization requested that the name of Local No. 273 be placed on the ballot instead of that of the parent organization , in the event that an elec- tion was ordered No objection was made to the request. 4 Also referred to as "Kindzijoria" and "Kindziora." 4 The record shows that the employees in the unit agreed to be appropriate are termed "inside employees" and "inside production workers." WARD BAKING COMPANT 487 national and did not wish to become involved in any conflict between the rival organizations. The conference concluded with an agree- ment between the Company and the United that the matter should remain in status quo pending action by the Board. Neither the Company nor the International claimed at the hearing that the agreement between them precluded the existence of a ques- tion concerning representation.5 Inasmuch as the agreement has been in effect over a year, and, since December 6, 1939, has been terminable at any time upon 30 days' notice by either party, mani- festly the agreement is no bar to the investigation and determina- tion of representatives.`' As we have stated above, the International moved at the close of the hearing to dismiss the petition of the United on the ground that the United had not shown a substantial interest. At the hearing the United introduced in evidence a petition, dated December 18, 1939. The petition contained the names of 52 employees in the ap- propriate unit, stating that the signers designated the United as their representative for collective bargaining and revoked their prior designation of the International? Kendziora, who had signed the petition, identified 27 of the names and testified that he had wit- nessed the signing thereof by employees on December 18, 1939, and that the balance of the signatures were obtained by William W. Ed- wards, another employee of the Company. Pay-roll slips of the Com- pany for 46 of the persons whose names appear on the petition were introduced in evidence. Comparison with the signatures on the peti- tion authenticates all of the signatures, except two which had been acknowledged by cross-marks. The foregoing clearly disposes of the contention that the United failed to show substantial interest in the proceeding.8 "At the hearing, the Company stated that it regarded the contract with the Interna- tional as being in full force and effect , but further stated that it was "ready, willing, and able to recognize and deal with " the labor organization certified by the Board 0Mattei of Standard Steel Spring Company and Lodge No. 2143, Steel Worloers Organizing Commrrttec , 1S N L It B 713 , and cases cited therein 4 The petition stated We, the undersigned hereby give notice of our resignation from local #207, of the Bakery and Confectionery Workers International Union of America , and authorize the United Retail and Wholesale Employees of America, affiliated with the Congress for Indus- trial Organizations , and its representatives to bargain collectively for us in matters per- taining to hours, wages, and general working conditions. This is understood to supercede [ sic] all applications for membership in the Bakery and Confectioneiy workers International Union, of the American Federation of Local #207 'We take into account the fact that the international representative of Bakery and Confectionery workers of America testified that on or about December 14, 1939, 55 out of 58 employees in the appropriate unit were members in good standing ; that on or about February 1, 1940 . 47 were still in good standing ; and that none of such employees had notified the International of withdrawal therefrom . We also take into account the exist- ence of a closed -shop contract between the Company and the International, and the sus- pension or discharge of Kendziora and Edwards pursuant to such contract in December 1939 at the instance of the International See infra 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that a question has arisen concerning the 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 At the hearing the parties stipulated that all inside employees in the bake shop, slicing and wrapping departments, shipping room, and maintenance department of the Company, excluding supervisory, office, and garage employees, constituted an appropriate unit. As noted above, this is the unit covered by the afore- mentioned agree- ment between the Company and the International. We see no reason to alter the unit thus established and agreed upon. We find that all inside employees in the bake shop, slicing and wrapping departments, shipping room, and maintenance department of the Company, excluding supervisory, office, and garage employees, constitute a unit appropriate for the purposes of collective bargain- ing and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bar- gaining and otherwise effectuate the policies of the Act. VI. TILE DETERMINATION OF REPRESENTATIVES Under the circumstances set forth in Section III above, we find that the question concerning representation can be best resolved by the holding of an election by secret ballot. At the hearing the parties stipulated that the eligibility list shall include the 57 employees whose names are set forth in Appendix A hereto. We find no reason to depart from the wishes of the parties, and, accordingly, in the election which we shall direct, these em- ployees shall be eligible to vote. The International contends that Kendziora should be ineligible to vote in the election. The United argues that he should be eligible. While no express statement was made by the rival labor organiza- tions, apparently they are in similar disagreement as to the eligibility of Edwards. WARD BAKING COMPANY 489 By letter dated December 15, 1939, the International notified the Company that Kendziora had been suspended from membership in the International because of his activities in behalf of the United, and requested that he "be temporarily relieved of his duties." Prior to December 19, 1939, the International addressed a similar com- munication to the Company with respect to Edwards. The record is not clear as to whether Kendziora and Edwards, upon receipt of these requests, were discharged or whether they were merely tem- porarily laid off.° Inasmuch as the vote-of neither employee may be necessary to a determination of the choice of representatives, we shall not at this time order a further hearing with respect to the status of Kendziora and Edwards. Instead, we shall provide that the Regional Director shall permit them to vote unless challenged, and in the event of challenge shall segregate their ballots in sealed containers, pending such disposition as shall be made of their ballots by the Board hereafter. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Ward Baking Company, South Bend, Indiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All inside employees in the bake shop, slicing and wrapping department, shipping room, and maintenance department of the Com- pany, excluding supervisory, office, and garage employees, 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 Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purpose of collective bargaining with Ward Baking Company, South Bend, Indiana, an election by secret ballot shall be conducted as early as possible, but not later than ° It is to be noted that the petition herein was not filed until more than a week subse- quent to the discharges or lay-offs. Nothing herein is intended to raise any doubt as to the eligibility of employees discharged or laid off subsequent to the filing of a petition for Investigation and certification. Cf. Matter of Silvray Lighting, Inc., and International Brotherhood of Electrical Workers Local Union No. 3, 18 N L. It. B. 719. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director. for the Thirteenth-Region, acting in this matter as agent for the National Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all inside employees in the bake shop, slicing and wrapping departments, shipping room, and maintenance department of the Company at its South Bend plant whose names are listed in Ap- pendix A hereto, and Larry Kendziora and William W. Edwards, to determine whether they desire to be represented by United Retail and Wholesale Employees of America, Local No. 273, affiliated with the C. I. 0., or by Bakery and Confectionery Workers' International Union, Bakers Union Local No. 207, affiliated with the A. F. of L., for the purposes of collective bargaining, or by neither. APPENDIX A J. R. Balka P. M. Balka P. Baumgartner F. S. Bielejewski J. Bliler T. R. Bliler L. B. Borowski G. T. Brothers H. F. Brothers N. F. Buytas L. L. Cart Al Ciesielski H. A. Coverly John Crothers A. L. Gay M. P. Gramza A. Hamburg M. P. Hartz C. Herthoge Waldo Hoover F. F. Jelinski R. F. Joers C. J. Kish C. Koehler H. W. Koskey Leo Kozloski W. S. Lubaway E. Luther R. Mantei J. F. Marshall F. L. Menzie E. S. Meszegeto J. A. Meszegeto Robert Miltonberger F. S. Mulkey N. C. Nelson J. J. Nyikos J. Parko J. F. Piechowski D. J. Redling J. J. Redling, Jr. E. P. Rice D. A. Roser P. Rucano W. Ruggieri C. B. Rzepnicki C. L. Schreiner J. Simeri M G. Synder R. L. Spaulding T. Stachurski E. W. Stockdale H. L. Szybowicz J. Szymanowski H. H. Taylor J. S. Wieger T. J. Zakrocki