Awrey Bakeries

National Labor Relations Board - Board Decisions

Oct 5, 1942

44 N.L.R.B. 801 (N.L.R.B. 1942)

In the Matter of ELTON R ., VVILBUR S., THOMAS L., AND ELIZABETH E.
AWREY , D/B/A AWREY BAKERIES and UNITED RETAIL , WHOLESALE AND
DEPARTMENT STORE EMPLOYEES OF AMERICA , DAIRY WORKERS Drvl-
SION , C. I. O. - 1 .
Case No. R-4207.-Decided October 5, 1942
Jurisdiction : baking industry.
Investigation and Certification of Representatives : existence, of question ; Com-
pany conceded that it refused to bargain with the union unless the employees
selected the union by secret ballot ; organization which made no showing of
representation not accorded place on ballot; election necessary,,`,
Unit Appropriate for Collective Bargaining : all employees of the Company in-
eluding all "regular part-time employees, but excluding all other part-time em-
ployees, drivers and drivers' helpers, retail clerks, independent vendors, office
workers, subforemen, foremen, and higher supervisory employees.
Mr. R. R. Weaver, of Detroit, Mich., for the Company:
Mr. Earl R. Wolfman, of Detroit, Mich., for the C. I. O.
Mr. Joseph H. Boyer, of Detroit, Mich., for Local 326.
Mr. Gerard J. Manack, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon `petition 'and amended petitions duly' filed by United Retail;
Wholesale and Department Store Employees of America, Dairy Work-
ers Division, C. I. 0., herein called the C. I. 0., alleging'that a ques-
tion .affecting commerce had arisen concerning. the representation of
employees of Elton R.,Wilbur S., Thomas L;, and Elizabeth E. Awrey,
D/B/A Awrey Bakeries, Detroit, Michigan, herein. called the. Com-
pany, the National Labor Relations Board provided for. an appro-
priate hearing upon due notice before Robert J. Wiener, Trial Ex-
aminer. Said hearing was held at Detroit, Michigan, on. August 26,
1942. The Company, the C. I. O.,,and Bakery and Confectionery
Workers International Union, Local 326, A. F. L., herein called Local
326, appeared, participated, aiid were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
44 N. L. R. B., 1Io. 156 ' • 1' • I • . •
801
487498-42-vol. 44-51
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dente beariiig,on the issues. The Trial Examiner's 'rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Elton R. Awrey, Wilbur S. Awrey, Thomas L. Awrey, and Eliza-
beth E. Awrey, a copartnership, doing business under the trade name
and style of Awrey Bakeries, and known in the trade as a multiple
unit bakery, manufacture and sell bakery products. The Company
owns and operates a plant at Detroit, Michigan, and 95 retail outlets
in the Detroit metropolitan area. The Company also sells its fin-
ished products to approximately 6 independent sales agencies and to
approximately 55 independent house-to-house vendors. During 1941
the Company used raw materials valued at approximately $1,250,000,
of which, materials valued at over $400,000 were obtained from points
outside the State of Michigan. During the same period, the Com-
pany's sales amounted to approximately $3,500,000, of which a neg-
ligible quantity was shipped to points outside the State,of Michigan.
II, THE ORGANIZATIONS INVOLVED
United Retail, Wholesale and Department Store Employees of
America, Dairy Workers Division, is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
Bakery and Confectionery Workers International Union, 'Local
326, is a labor organization affiliated with the American Federation
of Labor, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION -
The Company concedes that, upon request, it refused to- bargain
with the C. I. O. unless the employees selected the C. I. O. in an elec-
tion by secret ballot.
A statement of the Regional Director, introduced in evidence at
the hearing, indicates that the C. I. O. represents a substantial num-
ber of employees in the unit hereinafter found appropriate Local
326 submitted no evidence either to the Regional Director or at the
The Regional Director reported that the C I. O. submitted 266 authorization cards;
that all cards , except a few bearing hand printed signatures , appear to bear genuine signs-'
tui es ; and that 181 of the cards bear the names of persons on the Company's August 15, 1942,
pay roll Approximately 445 persons are employed in the unit claimed by the C . I. O. to be
appropriate.
AWREY BAKERIES 803,
hearing to support its claim to represent the employees of the Com-'
pang?
• 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 National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
The C. I. 0. claims that all employees Who work in the Company's
Detroit plant, including part-time workers who work more than 2
days each week, but excluding all part-time employees who work 2
days or less each week, drivers and drivers' helpers, retail clerks, inde-
pendent vendors, office workers, subforemen, foremen, and higher
supervisory employees, constitute an appropriate unit. The Company
took no position with, respect to the unit.
Neither the drivers and their helpers nor the retail clerks work' in
the plant. ^ The drivers deliver the finished products from the plant
to the retail outlets and markets, and the clerks work in the retail
stores. As indicated above, other unions have been attempting to
organize these employees. The independent vendors purchase the
Company's finished products for resale, own their own trucks and
equipment, and are not carried on the Company's pay roll as em-
ployees. We shall exclude these groups from the ' unit.'
Ter Company carries on its weekly pay roll an average of 200 part-
time eulplo^yees. A majority of the part-time workers have-regular
positions elsewhere, and work for the Company only on Friday nights
and Saturday mornings, the heaviest production period during the
week. A large number, however, do not work elsewhere, but have
worked regularly for the Company from 2 to 6 days,a week, in some
instances for periods as long as a year. The part-time employees re-
ceive lower wages than, and are not accorded the benefits received by,
the regular employees. Although some of the part-time employees
work intermittently, a majority of them work every- week. We are of
'The evidence establishes that for sometime prior to June 1942, the Company had oral
agreements with a teamsters union and a retail clerks union, both affiliated with the American
Federation of Labor, to recognize such unions upon proof that they 'respectively represented
a majority of the Company's drivers and retail cleiks . Neither of these organizations was
served with notice ; however , the C I 0 does not claim to represent the drivers or retail
clerks There is accordingly no showing of what, if any, representation the teamsters and
retail clerks unions have among these groups Also there was no showing that any proof
of representation had been submitted to the Company by either organization Local 326
contends, however , that both organizations had a substantial interest in the proceeding
because of the oral agreements , and that since Local 326 was also an American Federation
of Labor affiliate, it likewise,had an inteiest We find this contention to be without merit
Local 326 contends that the unit should also include drivers and drivers' helpers , retail
clerks, and independent vendors on the basis of its alleged joint interest with the teamsters
and retail clerks unions Since Local 326 has' made no showing of inteiest and Because of the
consideiations set forth above we find the contention to be without merit
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the opinion that, notwithstanding "the contention of the C.` 1. 0., all
part-time employees who work regularly have a sufficient interest -to
entitle them to vote in the election.' We define a- part-time regular
employee as one who has worked '1 day or more each 'week for 6 weeks
immediately preceding the date of the Direction of Election herein.
We find that all employees at the Detroit, Michigan, plant of the
Company, including all regular part-time employees, but excluding
all other part-time employees, drivers and drivers' helpers, retail
clerks,'independent .'endors, office workers, subforemen, foremen, and
higher supervisory employees, constitute a unit appropriate for the
Purposes of collective bargaining, within the meaning 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 the em-
ployees. 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 Direc-
tion. Since Local 326 has made no showing of representation, we shall
not accord it a place on the ballot.
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 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
• DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Elton R.,, Wilbur
S., Thomas L., and Elizabeth E. Awrey, D/B/A Awrey Bakeries, De-
troit, Michigan, 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 Seventh 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 employees in the unit found appro-
priate' in Section IV, above, who were employed during .the pay-roll
period immediately preceding the date of this Direction, including, any
such employees who did not work'during said-pay-roll period because
4Matter of Montgomery Ward ct 'Company and'Retail Cleiks International Piotective
Association, Local 283, affi liated with the American Federation of Labor, 38 N L."R B. 340;
Matter •of Taylor Bedding Manufiicturuig Company and Upholsterers ' International Unio4
of North America, 38 N L. B. 755.' ' '
AWREY BAKERIES 805
they were ill or on vacation or in the active military service or training
of the United States, or temporarily laid off, but excluding any who
have since quit or been discharged for cause, to determine whether or
not they desire to be represented by United Retail, Wholesale and
Department Store Employees of America, Dairy Workers Division,
C. I. 0,, for the, purposes of collective bargaining.
MR. WM. M. LFISERSON took no part in the consideration of the above
Decision and Direction of Election.