Century Biscuit Co.

National Labor Relations Board - Board Decisions

Nov 28, 1938

9 N.L.R.B. 1257 (N.L.R.B. 1938)

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.