Ward Baking Co.

National Labor Relations Board - Board Decisions

Jul 23, 1938

8 N.L.R.B. 558 (N.L.R.B. 1938)

In the Matter Of WARD BAKING COMPANY and COMMITTEE FOR
INDUSTRIAL ORGANIZATION -
In the Matter of WARD BAKING COMPANY and BAKERY AND CONFEC-
TIONERY WORKERS INTERNATIONAL UNION OF AMERICA
Cases Nos. C-/92, C-493, and B-32.2.-Decided July 23, 1938
Bakery Industrp-Interferenec , Restraint , and Coercion : urging, persuading,
and warning employees to join one labor organization and not to join or assist
another; soliciting membership by supervisory employees an unfair labor prac-
tice although such employees are members of or eligible to membership in the
union-Closed-Shop Contract : with company -favored union not the free choice
of a majority of the employees ; respondent ordered to cease and desist giving
effect thereto unless and until such labor organization is certified by the Board
as the exclusive bargaining representative ; closed -shop contracts not set aside
where unions signing contracts were not served with notice of hearing, did
not appear nor participate at the hearing , and did not benefit from unfair labor
practices of the respondent-Investigation, of Representatives : request for with-
drawal of petition for, denied ; controversy concerning representation of em-
ployees: controversy concerning appropriate unit; employer ' s refusal, to grant
recognition of union; substantial doubt as to majority status-Unit Appropriate
for Collective Bargaining : inside production and maintenance employees, ex-
cluding supervisory employees , clerical and office workers, machinists , engineers
and firemen , and all outside employees-Election Ordered: election not post-
poned to allow time for dissipation of effects of unfair labor practices since all
parties request that election be held forthwith ; request that name of one of
labor organizations be omitted from ballot , denied-Certification of Representa-
tives.
Mr. Jacob Blum and Mr. Herbert Eby, for the Board.
Semmes, Bowen cC Semmes, by Mr. Jesse N. Bowen, and Mr.
William D. MacMillan, of Baltimore, Md., for the respondent.
Mr. John K. Keane, of Baltimore, Md., and Mr. Patrick J. Taft, of
Washington, D. C., for the International.
Mr. Frank J. Bender, of Baltimore, Md., and Mr. Anthony. Wayne
.Smith, of Washington, D. C., for the United.
Mr. Paul Hutchings, of Washington, D. C., for the I. A. M.
Mr. Harry E. S'elekman, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF TILE CASE
Upon charges duly filed on August 6, 1937, by the Committee for
Industrial Organization on behalf of United Bakery Workers Indus-
8 N. L. R. B., No. 57.
558
DECISIONS AND ORDERS 559
trial Union Local No. 196, herein called the United, the National
Labor Relations Board, herein called the Board, by Bennet SchaufHer,
Regional Director for the Fifth Region (Baltimore, Maryland), is-
sued its complaint dated September 29, 1937, against Ward Baking
Company, Baltimore, Maryland, herein called the respondent, alleg-
ing that the respondent had engaged in and was engaging in unfair
labor practices, within the meaning of Section 8 (1) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. The complaint and notice of hearing thereon
were duly served upon the respondent and the United.
In respect to the unfair labor practices the complaint alleged in
substance that the respondent sponsored, dominated, and supported
a labor organization known as Bakery and Confectionery Workers
International Union of America, Local No. 68, herein called the In-
ternational, and that the respondent by such acts and other acts has
interfered with, restrained, and coerced its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
On October 6, 1937, the respondent filed its answer to the com-
plaint admitting its interstate activity, but denying all the allega-
tions of unfair labor practices.
On August 25, 1937, the International filed a petition with the same
Regional Director, alleging that a question affecting commerce had
arisen concerning the representation of employees of the respondent
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the Act. On September 24, 1937, the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3, and Article II, Section 37 (b), of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended, author-
ized the Regional Director to conduct an investigation and provide
for an appropriate hearing upon due notice, and ordered the pro-
ceedings consolidated for purposes of hearing. Notices of the hear-
ing on the petition were served upon the respondent, the United,
and the International.
Pursuant to the notices of hearing, a joint hearing on the com-
plaint and the petition was held in Baltimore, Maryland, on Oc-
tober 11 and 12, 1937, before D. Lacy McBryde, the Trial Examiner
duly designated by the Board. The Board, the respondent, and the
International were represented by counsel; the United, appeared by
an official. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on all the
issues was afforded to all the parties. At the commencement of the
hearing, the International's motion to intervene in the complaint
proceeding was granted by the Trial Examiner. At the conclusion
560 NATIONAL LABOR RELATIONS BOARD
of the Board's evidence, counsel for the Board moved that the plead-
ings be conformed to the proof. The Trial Examiner granted this
motion. The respondent and the International moved that the
complaint be dismissed. These motions were denied by the Trial
Examiner in his Intermediate Report.
Upon additional charges filed on December 23, 1937, by the Com-
mittee for Industrial Organization on behalf of the United, the
Board by its Regional Director, issued its second complaint dated
January 13, 1938, against the respondent, alleging that the respond-
ent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and Section
2 (6) and (7) of the Act. In respect to the unfair labor practices,
the complaint alleged in substance that the respondent had entered
into a closed-shop contract with the International subsequent to
the hearing and before the issuance of a decision on the proceedings
involved in the complaint and the petition; that the respondent
entered into the contract for the purpose of intimidating, coercing,
and, influencing its employees either to refrain from joining the
United or to withdraw as members from that organization; that the
respondent by such acts interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed to them under
Section 7 of the Act.
On January 20, 1938; the respondent filed an answer, admitting
the signing of the contract, but denying that this was an unfair
labor practice for the reason that the employees threatened to strike
the plant on November 13, 1937, unless such a contract was signed.
On December 13, 1937, the Board issued an order consolidating the
second complaint with the prior, petition and complaint. Pursuant
to .the notice of hearing served upon the respondent and the United,
a -hearing was held on January 24,. 1938, in Baltimore, Maryland,
before Earl S. Bellman, the Trial Examiner duly designated by the
Board. The Board, and the respondent were represented by counsel.
Full opportunity to be heard, to examine and cross-examine wit-
nesses,,'and to introduce, evidence bearing on all the issues was
afforded all the parties. ,
During the course of both of the hearings the Trial Examiners
made several rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminers and finds that no prejudicial errors were committed. Their
rulings are hereby affirmed.
On March 23, 1938, the Trial Examiner, Earl S. Bellman, filed his
Intermediate Report finding that the respondent had engaged in
unfair labor practices affecting commerce within the meaning of
Section 8 (1) and Section 2 (6) and (7) of the Act. The respondent,
DECISIONS AND ORDERS 561
the International Brotherhood of Teamsters and Chauffeurs, herein
called the Teamsters Union, the International Union of Operating
Engineers, herein called the I. U. O. E., and the International Asso-
ciation of Machinists, herein called the I. A. M., filed exceptions to
the Intermediate Report," which the Board has ' considered, and,
except as indicated hereinafter, finds them to be without merit.
The Trial Examiner, in his Intermediate ' Report, recommended
that respondent notify each of its supervisory personnel -that' lie was
to cease and desist-from membership in'any labor or ranizatiori of
the respondent's employees. • The International and,the, I. -A.',b1. bbl
jetted to this ruling on the ground that-it, interfered with the inter-
nal affairs of their unions because sothe"of the supervisory'personnel
were eligible 'to. membership -ill their orgaliizations: ' We are of thb
opinion that mere membership of supervisory employees in a labor
organization' is' not objectionable' and does' not constitute' ail . iinfait
labor practice on the part of the•employer. The ruling of the' Trial
Examiner is, therefore, hereby reversed.
On April 7, 1938, the Inteiiiational`filed with the Board' a motion
to withdraw its petition for investigation amid ' certification;' stating
that conditions had changed substantially since August 25, 1937, so
that it was no longer necessary to invoke ,the provisions of Section
9 (c) . On April 25, 1938, the United filed with the Board ,a, motion
to expedite the election, stating that the motion of 'the, International
to withdraw its -petition should be denied, that a. question concerniing
representation of the employees of the respondent lad existed' since
August 25, 1937, that this question should be decided as quickly as
possible, and that if the petition of the International-was withdrawn,
the-United would file a petition on its own behalf. Accordnigh, the
motion of, the International ;is hereby, denied.
Pursuant to notice, a_hearuig was, held before the Board, 911 'June
21, 1938, for the purposeI of oral argument. The' respondent, the
International, the United,, and the I. A. M. were represented and
participated therein.
Upon the entire record in the three cases, the, Board makes the
following :
"The Trial Examiner in his Intermediate Report recommended that the four closed-shop
contracts signed by the respondent with the I . A. M., the I . U. 0. E., the Teamsters
Union , and the International be set aside. Although the I. A . M., the I U: O. E., and the
Teamsters Union were not Parties to the case and did not participate in the hearings
they considemed themselves aggrieved by the recommendation of the Trial Examiner and
requested that they be allowed to file exceptions to the Intermediate Report. Such per-
mission was granted. We have considered the exceptions and hereby reject the recom-
mendation of the Trial Examiner in so far as it recommends that the contracts of the
I. A. M., the I. U. 0. E, and the Teamsters Union be set aside The disposition of these
contracts will be discussed in Section III (B ), infra.
562 NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Ward Baking Company, is a wholly owned sub-
sidiary of Ward Baking Corporation, a holding company which
controls 21 plants in the eastern, southern, and middle west portions
of the United States. Ward Baking Company operates 26 bread and
14 cake ovens having a daily capacity of over 2,000,000 pounds of
bread and 900,000 cakes in the bakeries.
The Baltimore plant, the one involved in these proceedings, is
engaged in manufacturing and distributing bread, cakes, buns, and
rolls. It receives raw materials from sources outside Maryland and
ships its products to States other than Maryland. The distribution
of bread and cakes is effected by trucks which deliver to retail gro-
cery and delicafessen-stoi-es and directly to restaurants,, hospitals, and
public institutions.
In its answer and at the hearings the respondent conceded that it
was engaged in interstate commerce.
II. THE ORGANIZATIONS INVOLVED
United Bakery Workers Local Industrial Union No. 196 is a labor
organization affiliated with the Committee for Industrial Organiza-
tion, admitting to its membership inside production and maintenance
employees of the respondent, excluding supervisors, clerical and office
employees, and outside employees.
-Bakery and Confectionery Workers International Union of Amer-
ica, Local No. 68, is a labor organization affiliated with the American
Federation of Labor. It admits to membership production and
maintenance employees, excluding supervisors, and clerical and office
employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In 1933, the International secured a considerable number of the
employees of the respondent as members. However, the employees
soon left the International, and it lapsed into complete inactivity
until some time subsequent to the appearance of the United in the
plant.
In June 1937, the United began an organizing campaign and on
June 19, Frank Bender, the regional director for the Committee for
Industrial Organization, sent a letter to John Flanigan, general man-
ager of the plant, stating that the United represented a majority of
DECISIONS AND ORDERS 563
the employees of the respondent and requesting a conference to dis-
cuss the possibility of arriving at a collective bargaining agreement.
A conference was held on June 28, during the course of which Flani-
gan asserted he had no authority to negotiate such an agreement as
was desired by the United and suggested that the United submit a
copy of its demands for the approval of the New York office.
After a lapse of some time, Bender sent a second letter dated
July 24, requesting that Flanigan arrange for the presence of Jack-
son, the general sales manager of the respondent, at a conference
with United officials.
On July 28, another meeting took place and was attended by
Jackson, Clyde Mayer, the district manager, and Flanigan, for the
respondent, and by Bender, Robert Glenn, a field representative of
the Committee for Industrial Organization, and Ernest Drohan, pres-
ident of the United. At this conference Bender stated that the
United represented a majority of the employees and desired to dis-
cuss a collective bargaining agreement with the respondent. There
is some dispute as to the exact nature of certain statements made by
Jackson. Bender and Drohan testified that Jackson requested the
United to withdraw from the plant in favor of the International and
that he stated that the International was the proper and better union
because of its longer history in the baking industry. Flanigan and
Mayer denied that Jackson requested the withdrawal of the United,
but Flanigan admitted that Jackson said he was desirous of obtain-
ing the union he thought best for the respondent's employees. After
some further discussion Jackson agreed to take a typewritten list
of the members of the United and a proposed agreement of the
United to the New York office.
On August 6, the United filed charges that the respondent was
interfering with, restraining, and coercing its employees in the exer-
cise of their rights guaranteed in Section 7 of the Act. On August
11 another conference was held, at which officials of the respondent
urged that the United withdraw its charges and participate in an
election . The United refused to take part in any election until a
decision was issued by the Board on the charges filed by it.
It appears that shortly after the United began to organize, super-
visory officials of the respondent began actively to interfere with its
organizational activities and to give aid and support to the Inter-
national. These efforts of the supervisory officials increased after the
negotiations on July 28. Numerous witnesses testified as to such ac-
tivities on the part of Charles Fuchs, Glenn Strachan, and Jack
Kelly, who, as shown herein, are clearly supervisory officials.
John Gibson, a scaler in the cake department, testified that in
June he was informed by Fuchs that he had orders to discharge any-
117213-33-vol. 8-37
564 NATIONAL LABOR RELATIONS BOARD
body distributing cards of the United, and that on August 19 Fuchs
asked him to allow Milton Michael, Fuchs' nephew, to sign him into
the International. Frank Fowler, a greaser in the same department,
stated that during the first week in June Fuchs instructed him not
to join any union, and that about the middle of August Fuchs in-
formed him that the International was the best union and that some-
one would see him with reference to signing an International card.
The following morning Michael requested him to join the Inter-
national. Fuchs denied that he made the statements attributed to
him, but he conceded that on one occasion he stated to three employees
that if he was compelled to join either union, he would choose the
International on account of its reputation. In view of the number
of witnesses giving similar testimony with reference to Fuchs' activi-
ties and of his own admission that he preferred the International to
the United, we see no reason for discrediting this evidence.
John Breivogel, a bread wrapper, stated that early in June his
supervisor, Glenn Strachan, had, in denying his request for a promo.
tion, informed him that this would not be possible unless he joined
the International. Albert Fountain, a bench worker, testified that
Strachan prevented him from speaking on behalf of the United, al-
though he did not interfere with the International in the plant.
Several witnesses, in testifying about the activity of Jack Kelly, the
chief engineer, in promoting the International in the plant, stated
that he notified them that he had application cards for anybody who
desired them. Robert Varnedoe, a set-up man, said that he was in-
formed by Kelly that if the United won out, the respondent would
postpone making any agreement until its members became dissatis-
fied and joined the International. Kelly denied that he made these
statements and said that he was referring to his own application card
when speaking to the employees. The evidence as a whole, however,
refutes Kelly's denial and explanation.
The respondent and the International contended that Fuchs,
Strachan, and Kelly "were not supervisory employees because they had
no power to hire and discharge, and that since these men were either
members or eligible to membership in the International, they were
fostering their own organization without any authority from the
respondent. They alleged that the acts of these employees could not
bind the respondent.
An examination of the record clearly establishes the supervisory
status of these men, even though they may not have the power to hire
and discharge. Charles Fuchs is an assistant foreman in charge of
the night shift. According to his testimony his duties are to "oversee
the whole place and see that things run as they should run, from the
third floor down into the basement, outside of the shipping depart-
DECISIONS AND ORDERS 565
ment." Fuchs gives orders to the employees under his supervision,
and during the foreman's absence he assumes his position.
Jack Kelly is the chief engineer in charge of the engineers and fire-
men. Although he does not have the power to hire and discharge,
Kelly stated that the respondent followed his recommendations and
that four employees had been dismissed pursuant to his suggestions.
Glenn Strachan is an assistant foreman at the plant. At the time
he had the conversation with Breivogel, Strachan's foreman was away
on a vacation. During his absence Strachan had been ordered to
install a new shift and given the authority to transfer any men he
desired.
We are of the opinion, moreover, that the respondent is not re-
lieved from responsibility for the union activity of its supervisory
employees by virtue of, membership of such employees in a labor
organization. A corporate employer in its relations to its ordinary
employees necessarily acts through and must be held responsible for
the acts of its supervisory employees. Where such employees actively
interfere with one labor organization and promote another, the em-
ployer itself must be deemed to have engaged in such interference
and promotion.
We find, therefore, that the respondent, by the acts of its super-
visory employees above set forth, has intimidated, restrained, and
coerced its employees in the exercise of their rights guaranteed to
them in Section 7 of the Act.
B. The closed-shop contracts
On October 25, 1937, the respondent orally agreed to increase
the wages of its truck drivers. Thereafter, on November 10, certain
of the other employees informed Frank Ellis, International organizer,
that they would strike unless the respondent gave them similar wage
increases and shorter hours. Ellis then arranged a conference with
Flanigan, the general plant manager, at which the strike threat was
repeated. Flanigan persuaded the employees to postpone any definite
action until after another conference on November 13.
On the evening of November 13, about 120 employees of the re-
spondent gathered in the American Federation of Labor hall. Mayer
and Flanigan represented the respondent. Mayer addressed the men,
told them that certain proceedings were pending before the Board,
and asked that they postpone any action until the Board issued
its' decision. A vote was taken, and the employees decided to strike
the following morning if they were not granted their demands.
Mayer called the president of the respondent in New York, and
the vice. president in Chicago, but both were out . He then called
the general sales manager in Boston and was told by him to come
566 NATIONAL LABOR RELATIONS BOARD
to terms with the men. Thereafter, the president gave him the same
instructions. Mayer agreed to a general wage increase of $3 per
week, which was to be retroactive from October 25, and to a reduc-
tion in the hours.
The parties continued to negotiate until December 8, 1937, at
which time the respondent signed closed-shop contracts with locals of
the I. A. M., the Teamsters Union, the I. U. O. E., and the Interna-
tional.2 The record is somewhat vague as to the circumstances sur-
rounding the appearance of the I. A. M., the Teamsters Union, and
the I. U. O. E., and the part they played in the negotiations. In the
representation proceeding at the first hearing the International
claimed to represent all the employees covered by these contracts.
However, Flanigan testified at the second hearing that during the
negotiations he was informed by the various officials of the different
unions that it was customary to sign separate agreements with the
individual unions.
The I. A. M., the I. U. O. E., and the Teamsters Union were not
served with notice and did not appear or participate in either hear-
ing before the Trial Examiners. Nor does the evidence disclose that
the activities of the supervisory employees discussed above were in
aid and support of these labor organizations. Under the circum-
stances, we shall not here pass upon the validity or effect of the
closed-shop contracts with these three unions. The issue remains,
however, as to the validity of the closed-shop contract between the
International and the respondent.
The respondent contends that the International represented a ma-
jority of the production and maintenance employees at the time the
closed-shop agreement was signed. Flanigan testified that about the
middle of September the International submitted to him a petition
signed by 197 employees of the approximately 220 employees in the
respondent's plant and that he spent 21/2 days asking each person
whose name appeared on the petition whether it was his signature
which was on the petition and whether he desired the International
to act as his bargaining representative. This petition, circulated
among the employees in the plant during the latter part of August,
designated the International as bargaining agent and stated that it
revoked all prior authorizations. It is to be noted in this connection
that the United during the meeting on July 28 submitted to the
respondent a typewritten list of its members and that the respond-
ent agreed to "check it." However, the record does not disclose that
2 Although the contracts with the I. A. M. and the I. U. O. E. are dated December 15,
1937, and that with the Teamsters Union is dated October 25, 1937 , counsel for the re-
spondent stated they were all signed on December 8, 1937, in the presence of officials of
all four unions.
DECISIONS AND ORDERS 567
such action was taken. A comparison of the names appearing on
the United membership list and those on the International's peti-
tion reveals a duplication of 76 names . This petition, furthermore,
was signed after the supervisory officials of the respondent gave
active aid and support to the International. It is clear, therefore,
that at the time the closed-shop agreement was signed the Interna-
tional as a bargaining representative was not the free and uncoerced
choice of a majority of the production and maintenance employees
of the respondent. The closed-shop contract is, therefore, null and
void, and the action of the respondent in signing it under the cir-
cumstances here presented clearly constitutes an unfair labor practice
within the meaning of Section 7 of the Act.
The respondent seeks to defend the -signing of the closed-shop
agreement on the ground that it was forced to do so by threat of a
strike in the plant. It is not necessary to determine herein whether
or not such a threat actually existed. It is clear that the imminence
of a strike does not justify the respondent in engaging in an unfair
labor practice.8
Counsel for the respondent and the International stated at the oral
argument before the Board that the closed-shop contract had been
rescinded. These statements are the only evidence relative to a rescis-
sion of the contract. Moreover, a mere rescission would not neces-
sarily correct the harmful effects resulting from the respondent's
unfair labor practices. We shall, therefore, incorporate in our order
the usual provisions designed to remedy such unfair labor practices.
Despite the fact that the respondent and its supervisory employees
must have known that the International did not represent a free and
uncoerced majority of the employees of respondent at the time that
the closed-shop contract was signed, the supervisory employees seized
upon it as another means to promote the membership of the Inter-
national and to intimidate and coerce the employees of the respondent.
The contract contained the provision that all employees had to join
the International within 30 days from the date it was signed. On
December 9, George Whittingham, the general foreman, informed
Charles Gosnell that he would have to sign with the International
if he wanted to work at the plant because a closed-shop contract had
been signed with that organization the night before. On December
17, Kelly told Varnedoe that if he did not join the International by
January 15, 1938, he would be dismissed. On December 28, Fountain
was warned by Strachan that if he did not join the International by
January 15, 1938, a new man would take his place. Other employees
of the respondent also testified they had received similar warnings.
8 See National Labor Relations Board v. Star Publishing Company, 9th Cir., 97 F. (2nd)
485, decided June 14, 1938.
568 NATIONAL LABOR RELATIONS BOARD
Another provision of the contract allowed Ellis access to the
premises of the plant merely upon reporting to the front office. On
pay days Ellis would sit on a desk near the cashier's cage, collect dues
for the International, and talk to the employees after they received
their wages.
We find, therefore, that the respondent, by signing and attempting
to enforce the closed-shop agreement with the International and by
the other acts above set forth, has interfered with, restrained, and
coerced its employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively, through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, above, occurring in connection with its operations described in
Section I above, have a close, intimate, and substantial relation to
trade, traffic, commerce, transportation, and communication among
the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE QUESTION CONCERNING REPRESENTATION
The respondent refused to recognize the United as bargaining agent
during the conferences held in June, July, and August, 1937, described
in Section III above. The International notified Flanigan of its
claim to represent a majority of the employees in July 1937. The
respondent entered into negotiations with the International - after
November 13, and signed a closed-shop contract with it on December
8, 1937. We have found that on December 8 the International did
not represent a free and uncoerced choice of the majority of the em-
ployees and that the closed-shop contract is null and void. Both
labor organizations now desire an immediate election to determine a
bargaining representative.
We find that a question has arisen concerning representation of
employees of the respondent.
VI. 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 respondent
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
DECISIONS AND ORDERS 569
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VII. THE APPROPRIATE UNIT
The International alleged in its petition that the appropriate unit
should consist of the inside and outside production and maintenance
employees, including watchmen, but excluding supervisors and the
clerical and office force. , At the hearing the International contended
that the truck drivers should be included in the bargaining unit.
The United argued that the drivers should be excluded on the
ground that they were members of the Teamsters Union. Both
parties stipulated that foremen, clerical and office workers, and other
employees in a supervisory capacity should be excluded.
At the oral argument before the Board both the United and the
International stated they were willing to exclude machinists, fire-
men and engineers, and outside employees from the bargaining unit.
However, they disagreed as to what supervisory employees should be
excluded. We have held in our previous decisions that supervisory
-employees should be excluded from the bargaining unit if a par-
ticipating labor organization objects to their inclusion. However,
the record here does not show clearly what employees are within
this category. Accordingly, if either labor organization objects to
any individual participating in the election on the ground that the
employee is a supervisory employee, the ballot of that employee will
be segregated as a challenged ballot. Further, if the outcome of the
election is dependent upon our determination of these votes, we shall
prior to any certification conduct a further investigation as to the
actual status of such employees.
We find that the inside production and maintenance employees
of the respondent, excluding supervisory employees, clerical and office
workers, machinists, engineers and firemen, and all outside employees,
constitute a unit appropriate for the purposes of collective bargaining
and that said unit will insure to employees of the respondent the
full benefit of their right to self-organization and to collective bar-
gaining and otherwise effectuate the policies of the Act.
VIII. THE DETERMINATION OF REPRESENTATIVES
At the hearing the United submitted 140 application cards, most
of which were signed during June and July. The International
introduced no cards at the hearing but requested that the record be
left open so that it could later submit them. It subsequently filed
with the Board 150 cards, 7 of which were signed by members of the
I. A. M. A comparison of the cards of the United and the International
570 NATIONAL LABOR RELATIONS BOARD
reveals that the names of 93 employees appear as members in both
organizations. It is clear, therefore, that neither organization has
established a clear and undisputed claim to represent a majority of
the employees in the appropriate unit. We believe that, under these
circumstances, the question concerning representation can best be
resolved by the holding of an election by secret ballot. Those em-
ployees in the appropriate unit who were on the pay roll of the
respondent immediately preceding the date of the second hearing
on January 24, 1938, excluding those who have since quit or been
discharged for cause, shall be eligible to vote.
The United, in its motion to expedite the proceedings filed with
the Board, requested that the Board omit the name of the Interna-
tional from the ballot. This request is hereby denied.
Where the respondent is found to have interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed by
Section 7 of the Act, we have ordinarily postponed the election until
sufficient time has elapsed for compliance with the Board's order
relative to such activities and for the dissipation of the effects of
such unfair labor practices. However, all parties have here requested
the Board to order an election forthwith, and we shall grant this
request.
Upon the basis of the above findings of fact and upon the record
in all three cases, the Board makes the following :
CONCLUSIONS OF LAW
1. United Bakery Workers Local Industrial Union No. 196, and
Bakery and Confectionery Workers International Union of America,
Local No. 68, are labor organizations within the meaning of Section
2 (5) of the Act.
2. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
4. A question affecting commerce has arisen concerning the repre-
sentation of the employees of the respondent, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
5. The inside production and maintenance employees of the re-
spondent, excluding supervisory employees, clerical and office work-
ers, machinists, engineers and firemen, and all outside employees,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the Act.
DECISIONS AND ORDERS
ORDER
571
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the re-
spondent, Ward Baking Company, Baltimore, Maryland, its officers,
.agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Urging, pursuading, warning, or coercing its employees to join
the Bakery and Confectionery Workers International Union of
America, Local No. 68, or any other labor organization, or threaten-
ing them with discharge if they fail to join such labor organization;
(b) Giving effect to its December 8, 1937, closed-shop contract
with Bakery and Confectionery Workers International Union of
America, Local No. 68;
(c) Recognizing Bakery and Confectionery Workers International
Union of America, Local No. 68, as the exclusive representative of
its employees unless and until said labor organization is certified as
such by the Board;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Immediately post notices to its employees in conspicuous places
throughout its plant and maintain such notices for a period of at
least thirty (30) consecutive days from the date of posting, stating
(1) that the respondent will cease and desist in the manner afore-
said; (2) that the respondent's employees are free to join or assist
any labor organization for the purposes of collective bargaining with
the respondent; and (3) that in order to secure or continue his em-
ployment in the plant, a person need not become or remain a member of
the Bakery and Confectionery Workers International Union of
America, Local No. 68;
(b) Notify the Regional Director for the Fifth Region in writing
within ten (10) days of this order what steps the respondent has
taken to comply herewith.
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-
572 NATIONAL LABOR RELATIONS BOARD
tions Act, 49 Stat. 449, 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 a part of the investigation ordered by the Board
to ascertain representatives for_ the purposes of collective bargaining
with Ward Baking Company, Baltimore, Maryland, an election by
secret ballot shall be conducted within twenty (20) days from the
date of this Direction, under the direction and supervision of the
Regional Director for the Fifth 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 inside pro-
duction and maintenance employees of the respondent employed dur-
ing the pay-roll period immediately preceding the date of the second
hearing on January 24, 1938, excluding supervisory employees, cler-
ical and office workers, machinists, engineers and firemen, all outside
employees, and those who have since quit or been discharged for
cause, to determine whether they desire to be represented by United
Bakery Workers Local Industrial Union No. 196, or by Bakery and
Confectionery Workers International Union of America, Local No.
68, for the purposes of collective bargaining, or by neither.
[SAME TITLE
CERTIFICATION OF REPRESENTATIVES
August 09, 1938
On July 23, 1938, the National Labor Relations Board, herein called
the Board, issued a Decision, Order, and Direction of Election in the
above-entitled proceeding. The Direction of Election provided that
an election by secret ballot be held among the inside production and
maintenance employees of Ward Baking Company, Baltimore, Mary-
land, employed during the pay-roll period immediately preceding the
date of the second hearing on January 24, 1938, excluding super-
visory employees, clerical and office workers, machinists, engineers
and firemen, all outside employees, and those who had since quit or
been discharged for cause, to determine whether they desired to be
represented by United Bakery Workers Local Industrial Union No.
196, or by Bakery and Confectionery Workers International Union
of America, Local No. 68, for the purposes of collective bargaining,
or by neither.
Pursuant to the Direction, an election by secret ballot was con-
ducted on August 4, 1938, under the direction and supervision of the
Acting Regional Director for the Fifth Region (Baltimore, Mary-
land). Full opportunity was accorded all the parties to the investi-
DECISIONS AND ORDERS 573
gation to participate in the conduct of the secret ballot and to make
challenges. Thereafter, the said Acting Regional Director, acting
pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 1, as amended, issued and duly
served upon the parties an Intermediate Report on the election. No
objections or exceptions to the Intermediate Report have been filed
by any of the parties.
As to the balloting and its results, the Acting Regional Director
reported as follows :
Total number eligible to vote-------------------------------- 160
Total number of ballots cast-------------------------------- 157
Total number of ballots cast in favor of Bakery and Confec-
tionery Workers International Union of America , Local Nu.
68------------------------------------------------------- 91
Total number of ballots in favor of - United Bakery Workers
Local Industrial Union No. 196---------------------------- 58
Total number of challenged ballots--------------------------- 7
Total number of ballots cast for neither union ---------------- 1
Total number of blank ballots------------------------------ 0
Total number of void ballots -------------------------------- 0
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, 49 Stat. 449, 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 Bakery and Confectionery Workers
International Union of America, Local No. 68, has been designated
and selected by a majority of the inside,,production and-maintenance
employees of Ward Baking Company, Baltimore, Maryland, exclud-
ing supervisory employees, clerical and office workers, machinists,
engineers and firemen, and all outside employees, as their representa-
tive for the purposes of collective bargaining, and that, pursuant to
Section 9 (a) of the National Labor Relations Act, Bakery and Con-
fectionery Workers International Uniori of America, Local No. 68, is
the exclusive representative of all such employees for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
Mr. EDwIN S. SMITH took no part in the consideration of the above
Certification of Representatives.
8 N. L. R. B., No. 57a.