Cote Bros. Inc.

National Labor Relations Board - Board Decisions

May 9, 1938

7 N.L.R.B. 70 (N.L.R.B. 1938)

In the Matter of COTE BROS. INC. and INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, STABLEMEN AND HELPERS OF AMERICA,
BAKERY DRIVERS LOCAL No. 686
Case No. R-621.Decided May 9, 1938
Bakery Industry-Investigation of Representatives: controversy concerning
representation of employees : employer's refusal to grant recognition of union ;
rival organizations ; strike-Contract : controversy concerning terms-Unit Ap-
propriate for Collective Bargaining: route salesmen, including the van driver; no
controversy as to-Election Ordered: pursuant to stipulation by all parties-
Certification of Representatives.
Mr. Edward Schneider, for the Board.
Mr. Emile Lemelin, of Manchester, N. H., tor the Company.
Mr. Harold R. Donaghue and Mr. Nathan Efron, of Boston, Mass.,
for the Union.
Mr. Daniel J. Healy, of Manchester, N. H., for the Association.
Mr. Richard Meigs, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 18, 1937, International Brotherhood of Teamsters,
Chauffeurs, Stablemen and Helpers of America, Bakery Drivers Local
No. 686, herein called the Union, filed with the Regional Director for
the First Region (Boston, Massachusetts) a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of Cote Baking Company, Manchester, New Hampshire,
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 February 16, 1938, the Union
filed with the Regional Director an amended petition, changing the
name, Cote Baking Company, appearing in the original petition, to
Cote Bros. Inc., herein called the Company, and making an alteration
in the description in the original petition of the unit claimed to be
appropriate for the purposes of collective bargaining. In other re-
spects the amended petition conformed substantially to the original
petition. On February 21, 1938, the National Labor Relations Board,
70
DECISIONS AND ORDERS 71
herein called the Board, acting pursuant to Section 9 -(c) offthe 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 March 1, 1938, the Regional Director issued a notice of hearing,,
copies of which were duly served upon the Company, upon the Union,
and upon Association of Cote Bros. Inc. Employees, herein called the
Association, a labor organization purporting to represent employees
directly affected by the investigation. Pursuant to, the notice, a hear-
ing was held on March 7 and 8, 1938, at Manchester, New Hampshire,
before Henry W. Schmidt, the Trial Examiner duly designated by
the Board. The Board, the Company, and the Union were repre-
sented by counsel throughout the hearing and participated therein-
The Association was represented by counsel on the second day of the
hearing." Full opportunity to be heard, to examine and cross-exam-
ine 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 committed.
The rulings are hereby affirmed.
At the close of the hearing all the parties entered into a stipulation
authorizing the Board to direct an election on specified terms. This.
stipulation is set forth in Section VI below.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Cote Bros. Inc., a corporation organized in 1921 under the laws of
New Hampshire, is engaged in the baking and sale of rolls, bread, and
doughnuts. Its business is principally wholesale. It maintains its
principal office and place of business at Manchester, New Hampshire,
and a small office and garage at Lowell, Massachusetts.
The principal raw materials used by the Company in its business
are flour, sugar, salt, yeast, syrups, and shortening. During 1936
and 1937 the Company's annual purchases of raw materials aggre-
gated approximately $250,000 in value. At least 74 per cent of these
raw materials were shipped to' the Company from points outside New
Hampshire, principally by rail. Flour, the largest single item used-
by the Company, is received mainly from-Kansas. -
1 No formal appearance was entered for the Association on the first day of the hearing.
106791-38-vol vIr-6
72 NATIONAL LABOR RELATIONS BOARD
The Company 's customers are chiefly hotels, restaurants, and gro-
cery stores lying within a radius of 50 miles of the baking plant at
Manchester, New Hampshire. Included within the area marked out
by this 50-mile radius is a portion of Massachusetts, which is the only
State, other than New Hampshire, in which the Company markets
its products. The Company distributes its products by means of
route salesmen who operate company-owned trucks over approxi-
mately 30 distinct routes. Six of these routes are in Massachusetts,
covering the towns and vicinity of Lowell, Lawrence, Haverhill, and
'Salem. The Massachusetts route salesmen are supplied from a com-
pany-owned van or trailer truck which travels daily from the Man-
^chester plant in New Hampshire to Lowell, Massachusetts.
The Company's total annual sales during 1936 and 1937 amounted
to approximately $650,000. Sales made in Massachusetts accounted
for $170,000 of this amount in 1936, and for $160,000 in 1937.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers of America, Bakery Drivers Local No. 686, is a labor
organization affiliated with the American Federation of Labor. It
admits to membership all truck drivers, helpers, warehousemen,
washers of autos, and stablemen in the district extending from Man-
chester, New Hampshire, through and including Lowell, Lawrence,
and Haverhill in Massachusetts.
Association of Cote Bros. Inc. Employees is a labor organization
unaffiliated with any other labor organization. Its membership is
limited exclusively to the Company's employees, all of whom are
eligible for membership.
III. THE QUESTION CONCERNING REPRESENTATION
Early in July 1937, the Union notified the Company that it repre-
sented a majority of its route salesmen and submitted a contract
containing provisions pertaining to hours, wages, and working condi-
tions. Similar contracts were also submitted to various of the Com-
pany's competitors in Massachusetts.
In a letter dated July 26, 1937, the Company declined to execute
the contract on the grounds that an association of "Cote Bros.
employees" had been formed and that 90 per cent of its employees
were members of that organization. The Company asserted that it
had orally recognized this association as the sole collective bargain-
ing agency of its employees.
Thereafter, the Union began negotiations with a representative of
the Master Bakers Association of Massachusetts, an association of
DECISIONS AND ORDERS 73
all Massachusetts employers in the baking industry, including Cote
Bros. Inc., regarding the contracts which it had submitted to the
several employers. The negotiations having proved unsatisfactory
to the Union, it called a strike which involved the Company's route
salesmen in Massachusetts. At the conclusion of the strike, which
was short-lived, the Company signed a contract with the Union, at
the end of which appeared a written notation, "For Lowell Drivers."
Subsequently, on August 16, 1937, another contract, substantially the
same as the first, but omitting the notation, "For Lowell Drivers,"
was executed by the Union and the Company and substituted for the
first contract. A clause in the second contract provided that it should
remain in effect until July 26, 1938, "and thereafter Lentil terminated
by either Party on thirty (30) days' written notice given to the
other Party." Subsequently the Union encountered difficulty in
dealing with the Company under this contract because the Company
contended that the notation, "For Lowell Drivers", appearing in
the first contract limited its applicability solely to Lowell route
salesmen and that it had been the Company's understanding in sign-
ing the second contract that it, also, applied to Lowell route salesmen
only, despite the omission therefrom of the notation so limiting it.
For this reason and also on the ground that the Union did not repre-
sent its New Hampshire route salesmen, the Company denied the
Union's right to bargain for the New Hampshire route salesmen.
The Union, claiming to represent a majority of all the Company's
route salesmen, both those operating in New Hampshire and those
operating in Massachusetts, applied to the Regional Office of the
Board at Boston, Massachusetts. Attempts to arrange a consent
election were unsuccessful.
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
has led and tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union alleged in its amended petition that a unit composed
of 37 route salesmen is appropriate for'the purposes of collective
74 NATIONAL LABOR RELATIONS BOARD
bargaining. While there may be some suggestion in its conferences
with the Union regarding the contract that the Company considered
all its employees to constitute an appropriate unit, neither the Com-
pany nor the Association at the hearing opposed the Union's claims
with respect to the appropriate unit or made any claims for a differ-
ent appropriate unit. Moreover, at the close of the hearing all parties
entered into a stipulation authorizing the Board to direct an elec-
tion among the Company's route salesmen, including the one van
driver, to determine whether they desire to be represented by the
Union or by the Association. In view of these facts we see no reason
for deviating from the Union's claim as to the appropriate unit.
We find that the 37 route salesmen, including the van driver, em-
ployed by the Company constitute a unit appropriate for the pur-
poses 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 Union claimed that 22 of the Company's 37 route salesmen
had designated it as their representative for the purposes of col-
lective bargaining. The Union introduced membership cards in evi-
dence to substantiate its claim. It is unnecessary for us, however, to
consider these membership cards in resolving the question concerning
representation, since at the conclusion of the hearing all the parties
entered into a stipulation authorizing the direction of an election by
the Board on the following terms :
1. The election shall be held among all the route salesmen, in-
cluding the van driver, employed by the Cote Bros. Inc., and
appearing on the pay roll of the Company as of February 12,
1938.2
2. The ballot shall permit the voters to choose between the
bakery drivers' local No. 686 of the A. F. of L., and the Associa-
tion of Cote Brothers, Inc., employees.
3. The election shall be held on a Saturday. The polls shall
be open at 7: 30 p. m. There shall be a polling place both in
Manchester, New Hampshire, and in Lowell, Massachusetts, and
the hours for voting shall be the same in both places. This
paragraph, No. 3, shall be subject to the approval and discretion'
of the Regional Director for the First Region.
2 The stipulation lists the names of the persons eligible to vote. This list of names
appears in appendix A annexed ' hereto.
DECISIONS AND ORDERS 75
4. The election shall be conducted by the Regional Director
of the National Labor Relations Board for the First Region,
and all other procedural details, including the place for the
voting, other than as provided in paragraph 3, the preparation of
ballots, the number of tellers, etc., shall be determined by him.
His decision in these matters shall be final. Notices of election
shall be posted not less than 48 hours prior to the election in
the Manchester plant of Cote Bros. Inc., and in the garage of
Cote Bros.'Inc., at Lowell, Massachusetts.
5. The parties herein hereby agree to abide by an order and
decision of the National Labor Relations Board in accordance
with the above terms and conditions.
On the basis of the above findings of fact, the above stipulation,
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 Cote Bros. Inc., Manchester, New Hamp-
shire, within the meaning of Section 9 (c) and, Section 2 (6) and (7)
of the National Labor Relations Act.
2. The route salesmen, including the van driver, of Cote Bros. Inc.,
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, 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 its investigation to ascertain representa-
tives for the purposes of collective bargaining with Cote Bros. Inc.,
Manchester, New Hampshire, an election by secret ballot be conducted
within fifteen (15) days from the date of this Direction, under the
direction and supervision of the Regional Director for the First
Region, acting in this matter as agent of the National Labor Relations
Board and subject to Article III, Section 9, of said Rules and Regu-
lations, and in accordance with the stipulation entered into in this
proceeding, among all the route salesmen,, including the van driver,
'employed by the Company who Were on the Company's pay-roll list
of February 12, - 1938, a copy of which is annexed hereto as appendix
76 NATIONAL LABOR RELATIONS BOARD
A, excluding those who have since ,quit or been'discharged for cause,
to determine whether they desire to be represented by International
Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of
America, Bakery Drivers Local No. 686, or by Association of Cote
Bros. Inc. Employees, for the purposes of collective bargaining, or
by neither.
APPENDIX A
Joseph Gaudneault
Conrad Lavalle
Henry Lavalle
Henry Mullen
Leon Rochette
Philip Thebeault
Morse Marcoux
James J. Connors
,Leon L. Gilbert
Henry O. Perreault
Armand Tessier
Philip Beaudet
Leon V. Alliere
Launent Adam
Armand Adam
Leo LaFlamme
Agenor De Ziel
Harvey Trudeau
Antonio Chauvette
Rosario Monast
Jean Chenard
Alpha Campbell
Oliver Vien
Lucien Chaput
Archille Beaulac
Alphonse Mortel
Arthur Perreault
Arthur Gelinas
Armand Caron
Leonidas Leblanc
Albert Mesropian
Alfred Kelly
Shirley Morgrage
Salvatore Garceau
[ SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
June 13, 1938
On May 9, 1938, the National Labor Relations Board, herein called
the Board, issued a Decision and Direction of Election in the above-
entitled case. The Direction of Election directed that an election by
secret ballot be conducted among all the route salesmen, including
the van driver, employed by Cote Bros. Inc.
Pursuant to the Decision and Direction of Election, an election by
secret ballot was conducted on May 21, 1938, under the direction and
supervision of A. Howard Myers, the Regional Director for the First
Region (Boston, Massachusetts), among the eligible employees of
Cote Bros. Inc. On May 24, 1938, the said Regional Director, acting
pursuant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 1, as amended, issued and, on May 25,
1938, duly served upon the parties an Intermediate Report on the
election.
DECISIONS AND ORDERS 77
As to the balloting and its results, the Regional Director reportedi
as follows :
Total number eligible to vote--------------------------------- 34
Total number of ballots cast--------------------------------- 31
Total number of blank ballots-------------------------------- 0
Total number'of void ballots--------------------------------- 0
Total number of challenged ballots--------------------------- 0
Total number of votes-in favor of International Brotherhood
of Teamsters, Chauffeurs, Stablemen and Helpers of America,
Bakery Drivers Local No. 686----------------------------- 7
Total number of votes in favor of Association of Cote Bros. Inc.
Employees------------------------------------------------- 24
Total number of votes in favor of neither organization -------- 0
No objections to the Intermediate Report on the election were filed,
by any of the parties.
CERTIFICATION OF REPRESENTATIVES
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, herein called the Act, and pursuant to Article-
III, Sections 8 and 9, of National Labor Relations Board Rules and
Regulations-Series 1, as amended,
IT IS HEREBY CERTIFIED that Association of Cote Bros. Inc. Em-
ployees has been designated and selected by a majority of the route
salesmen, including the van driver, employed by Cote Bros. Inc.,.
Manchester, New Hampshire, as their representative for the purposes-
of collective bargaining, and that, pursuant to Section 9 (a) of the-
Act, Association of Cote Bros. Inc. Employees is the exclusive rep-
resentative of all such employees for the purposes of collective bar--
gaining in rrespect to rates of pay, wages, hours of employment, ands
other conditions of employment.