Ward Baking Co.

National Labor Relations Board - Board Decisions

Nov 27, 1962

139 N.L.R.B. 1344 (N.L.R.B. 1962)

1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bell Bakeries of St. Petersburg of Ward Baking Company;
Continental Baking Company ( Holsum Division ); and Ward
Baking Company ' and Teamsters , Chauffeurs , Helpers Local
Union No. 79, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Petitioner
Ward Baking Company and Teamsters , Chauffeurs , Helpers
Local Union No. 79 , affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America , Petitioner
Continental Baking Company ( Holsum Division ) and Team-
sters, Chauffeurs , Helpers Local Union No. 79, affiliated
with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Petitioner
Bell Bakeries of St . Petersburg of Ward Baking Company and
Teamsters, Chauffeurs , Helpers Local Union No. 79, affiliated
with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Petitioner. Cases Nos.
12-RC-1318, 12-RC-1375, 12-RC-1376, 12-RC-1377, 12-RC-1379,
12-RC-1380, 12-RC-1383, 12-RC-1381, and 12-RC-1382. Novem-
ber 27, 1962
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was' held before Robert G. Romano, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed 2
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employers.
3. Questions affecting commerce exist concerning the representation
of employees of the Employers within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. Petitioner, although making alternative requests, seeks to repre-
sent two separate multiemployer units, one of transport drivers and
i The names of the Employers appear as corrected at the hearing.
2 The Employers' requests for oral argument are denied as the record , including the
briefs, adequately sets forth the issues and the positions of the parties.
139 NLRB No. 119.
BELL BAKERIES OF ST. PETERSBURG, ETC. 1345
the other of route drivers (also called driver-salesmen). The In-
tervenor,3 although also making alternative requests, desires a single
multiemployer unit covering both transport drivers and route drivers.
The Employers contend that these units are inappropriate as the Em-
ployers no longer intend to be parties to multiemployer bargaining.
The alternative unit positions taken by the parties will be discussed
below.
Since February 1959, Ward, Bell, and Continental or its predecessor
Holsum 4 have bargained with the Intervenor on a multiemployer
basis. The present contracts, one covering a unit of transport drivers
and the other a unit of driver-salesmen, were entered into in January
1960, to expire on February 3, 1963.
On October 12, 1961, Petitioner filed a timely petition (Case No.
12-RC-1318) for the existing multiemployer unit of transport drivers.
On November 17, 1961, the Employers filed a motion to dismiss the
petition, stating that the unit petitioned for was inappropriate be-
cause the Employers no longer intended to be parties to multiemployer
bargaining. Accordingly, on January 19, 1962, during the hearing
on the petition, Petitioner filed petitions seeking eight separate units
of route drivers at various locations of each of the Employers. As
stated above, however, Petitioner later declared that it sought to repre-
sent the route drivers on a multiemployer basis also.
Through the years, the Board has maintained a liberal policy of
allowing an employer to withdraw from multiemployer bargaining
provided it clearly evinced at an appropriate time, usually prior to
the start of multiemployer negotiations, its intention to pursue an in-
dividual course of bargaining.' In pursuing this policy, the Board
has considered a date as late as the hearing an appropriate time to
make such intention known, even though the hearing was on a petition
filed for a multiemployer unit.6 At the same time, however, the Board
has recognized and has been concerned with those situations in which
employer members of a multiemployer bargaining unit have attempted
to withdraw from bargaining on that basis after the filing of a repre-
sentation petition by another union, because the employers may not
wish to deal with that union and may feel that it will be less success-
ful if forced to go to elections in single-employer units.
a The Intervenor, Local 204, International Union of United Brewery, Flour , Cereal,
Soft Drink & Distillery Workers of America, intervened upon separate showing of con-
tractual relationship both as to transport drivers and route drivers.
'Continental acquired Holsum in December 1961, made it a separate division, and
operated it under Holsum' s multiemployer contracts.
5 Detroit Window Cleaning Union, Local 139, etc. (Daelyte Service Company), 126
NLRB 63, 69; McAndry & Welter, Inc., 115 NLRB 1029 ; Milk and Ice Cream Dealers of
the Greater Cincinnati , Ohio, Area, et al, 94 NLRB 23.
6 Laris Motor Sales, Inc, 104 NLRB 1106, 1108; Bearing & Rim Supply Co., 107 NLRB
101, 102-103.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This concern was demonstrated in the recent Dittler Bros. case,'
in which the Board refused to allow an employer to withdraw from
group bargaining, finding the attempted withdrawal "untimely and
ineffective because it took place after the filing of the petition." How-
ever, the situation presented herein is quite different from that in
Dittler. There, the multiemployer association, of which the employer
in question was part, was negotiating a new multiemployer contract
with the incumbent union when another union filed its petition for
the same multiemployer unit. A member employer thereupon noti-
fied the association of its intention to withdraw from the current group
bargaining, and later signed a separate contract with the incumbent
union.
Here, however, the Employers were not negotiating a new multi-
employer contract; a 3-year multiemployer contract was still in effect
with more than 1 year to run when the original petition was filed.
Normally this was not an appropriate time for the Employers to with-
draw from the multiemployer unit. From the Employers' point of
view, moreover, there was no reason to express an intention not to
bargain on a multiemployer basis in the future. For this reason, we
do not follow Dittler insofar as it would limit our consideration of
whether to grant withdrawal from multiemployer bargaining al-
though such request followed the filing of a petition for a multiem-
ployer unit. Clearly, the Employers here were entitled to more time
in which to consider their method of bargaining in the future. Ac-
cordingly, we find that under the circumstances of this case the Em-
ployers have evinced a timely intention to abandon future group bar-
gaining as respects both the transport drivers and the route drivers.
In view of the foregoing, we further find that multiemployer units are
not appropriate for purposes of this proceeding.
As the Petitioner expressed its desire to represent single-employer
units if the Board found multiemployer units inappropriate, we shall
not dismiss the petitions.' The Petitioner took several alternative
unit positions. It stated that if it could not represent the employees
of the Employers in multiemployer units, it sought four separate units,
one for Continental's transport drivers and another for its route
drivers, a third for all the transport drivers, and a fourth for all the
route drivers of Ward and Bell together, as it contends that Ward
and Bell constitute a single employer. Each of the Employers and
the Intervenor contend that the transport drivers and route drivers
should be included in the same unit. In addition, Ward, which in
June 1960 had purchased Bell, contends that Ward and Bell still are
separate employers.
7 Dittler Bros ., Inc., et al., 132 NLRB 444.
8In view of the unit findings herein, we deny the Employer's motion to dismiss as set
forth above.
BELL BAKERIES OF ST. PETERSBURG, ETC. 1347
After June 1960 , Ward continued to operate Bell as a separate
enterprise . The evidence indicates that Ward and Bell actively com-
pete with each other at the sales level , that all advertising and book-
keeping functions of the two companies are kept separate throughout,
and that each company maintains its own accounting and personnel
records.
Both Ward and Bell are engaged in the manufacture and sale of
bakery products and both have either plants or agency distribution
points in Tampa, St . Petersburg , and the Sarasota -Bradenton areas.
In addition, Bell has a Lakeland outlet. Ward and Bell each has its
own regional sales manager . Both, however, report to a, single regional
manager, who is in charge of both Ward and Bell operations in that
region . Labor relations policies for both companies are determined
by Ward's vice president , who channels them down through the
regional manager. Although there is no interchange of employees be-
tween Ward and Bell , working conditions and benefits for both
groups of employees are the same.
In view of all the above, including common ownership , the simi-
larity of operations and employee working conditions , and especially
the centralized control of labor relations , we find that Ward and Bell
constitute a single employer for the purposes of the Act.'
In determining whether the route drivers should be included in the
same unit with the transport drivers, the following evidence , relating
to the duties and employment conditions of each, was adduced at the
hearing :
The route drivers sell and deliver bakery products to hotels, res-
taurants, and retail markets, making all their deliveries during the
day. They have contact with customers , whereas the transport
drivers , who deliver the baked goods from the plants to the distribu-
tion points during the night , do not. Route drivers receive base pay
plus commission with a certain guaranteed minimum salary , whereas
transport drivers are paid a regular wage and no commission. Some
fringe benefits , such as holidays and vacations, are the same. How-
ever , the route drivers receive a pension , but the transport drivers do
not. Route drivers drive panel trucks and wear partial uniforms.
Transport drivers drive semitrailer trucks and wear no uniforms.
Route drivers do not interchange with transport drivers. Under the
present 3 -year multiemployer contracts , the route drivers and trans-
port drivers are represented in separate units.
The Board recently had occasion to deal with the question of
whether route drivers, or driver-salesmen , should be included in the
same unit with transport drivers.10 There the Board stated that where
9 Buy Low Supermarket, Inc., 131 NLRB 23; Dohrmann Commercial Company et al,
127 NLRB 205.
lo Plaza Provision Company, 1$4 NLRB 910.
672010-63-vol. 139-86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees perform the functions of both drivers and salesmen, a de-
termination as to which functions predominate will depend upon a
close examination of their duties and employment conditions. In the
record before us, there is a lack of evidence as to what the selling
functions of the route drivers entail. But even though their selling
functions may not here sufficiently predominate over their driving
functions as to require an affirmative finding that the route drivers are
"truly salesmen," 11 we find, on the basis of the current bargaining
history, that separate units of route drivers and transport drivers are
here appropriate.
Accordingly, we find that a unit of all Continental's transport
drivers is appropriate. In view of our finding above that Ward and
Bell constitute a single employer, we further find that a unit of all
the transport drivers of Ward and Bell is appropriate.
Although Petitioner filed eight separate petitions for single-plant
units of route drivers, Petitioner thereafter took the position, at the
hearing, that two separate units of route drivers were appropriate,
one at Continental, and the other at Ward and Bell, both on a multi-
plant basis. Continental and Intervenor agreed with this position
in the event that route and transport drivers were not included in the
same unit.12
Ward and Bell do not agree. Rather, they contend that single-
plant units are appropriate at each of their plants and dependent
agency branches and, in support of this contention, they cite the heavy
competition in the baking industry and the high degree of autonomy
in each of their plants and agencies. Both Ward and Bell have plants
in Tampa and in St. Petersburg, and branch agencies in the Sarasota-
Bradenton area. Bell also has an agency point in Lakeland. Ward
has a multiplant bargaining history extending back at least as far as
the 1-year 1959-60 contract which preceded the contract now in ex-
istence. When Bell became a party to the present multiplant contract,
it had only a St. Petersburg plant. However, in two non-Board elec-
tions subsequently held in October 1960, Bell's route drivers in Tampa
and in Lakeland voted to become a part of the unit then in existence.
Therefore, Bell too has a multiplant bargaining history which dates
back to October 1960. As pointed out above, Ward's vice president
establishes the labor relations policies for all Ward and Bell plants
and relies on the regional manager to introduce these policies through-
out the plants involved.
11 Cf. Plaza Provision Company, supra, where the Board held that the predominance of
selling functions was a sufficient ground for excluding route salesmen from a unit of
warehousemen and truckdrivers sought by the Petitioner.
12 Continental contended that a single unit of route drivers In all branch agencies of
the Holsum Division under the jurisdiction and control of the Tampa plant is appropriate
This is the same as the requested multiplant unit.
BELL BAKERIES OF ST. PETERSBURG, ETC. 1349
The record offers little to aid in the determination of the degree of
autonomy at each of the plants. However, there was evidence which
showed that although route supervisors at the branch agencies do the
initial screening of applicants for route-driver positions, they then
send the screened applicants to the main plants where they are tested
and interviewed and where the final choice is made. There has been
some interchange among these route drivers. The skills and functions
of the route drivers at each of the plants or agencies are the same and
their conditions of employment are also the same. The Tampa and
St. Petersburg plants are 20 miles apart. The Sarasota-Bradenton
agencies of each are approximately 50 miles from Tampa. Bell's
Lakeland agency is 43 miles from Tampa. Only one of the
above plants, the Sarasota-Bradenton plant of Bell, is presently
unrepresented.
In view of the recent history of collective bargaining on a multi-
plant basis, the central control of labor relations, the interchange of
employees, and the proximity of location of the plants, and further
in view of our findings above that Ward and Bell constitute a single
Employer, we would find appropriate a unit encompassing all the
route drivers at all of the plants and agencies of Ward and Bell,
except for the factor discussed in the following paragraphs.
We would further find appropriate a multiplant unit of Conti-
nental's route drivers in view of the agreement of the parties, but for
the same consideration.
As noted above, the route drivers at the Sarasota-Bradenton plant
of Bell are presently unrepresented, as are Continental's route drivers
at the Clearwater, Sarasota-Bradenton, Fort Myers, Orlando, and
Lakeland plants.
In Continental's Holsum Division, there are a total of 53 employees
in the plants presently represented by the Intervenor. The number
of employees in the remaining, unrepresented plants of the llolsum
Division is 50. Certainly, therefore, the unrepresented employees
cannot correctly be referred to as a "mere fringe group" within the
meaning of that term." Nor should the representation of the presently
represented employees depend on the wishes of a virtually equal
number of unrepresented employees, as might occur if the two groups
were found to constitute a single appropriate unit or if the votes of
the two groups were pooled.
As to the 79 route drivers of Ward-Bell, only those located at Bell's
Sarasota-Bradenton plant, 6 in number, are presently unrepresented.
These employees are likewise not a true fringe group, inasmuch as
they are located in a separate plant, apart from the other, represented
plants.
18 See The Zia Company, 108 NLRB 1134; D.V. Displays Corp ., 134 NLRB 568.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not regard either Felix Half 14 or D.V. Displays as relevant
to the present situations. In Felix Half, a majority of the Board
(Members Rodgers and Leedom dissenting) directed separate elec-
tions in two voting groups, consisting of the existing unit and a minor,
unrepresented fringe group at the same plant. The purpose was to
allow the employees in the existing unit to continue to be represented
if they wished by the incumbent union, which did not join in the
Petitioner's desire to add the two unrepresented fringe employees to
the existing unit. In the present case, however, there is no such
fringe group. Rather different plants are involved. Moreover, the
incumbent Intervenor has not sought to limit itself to its existing
unit, but has expressed its desire to go on the ballot for whatever
larger unit the Board finds appropriate.
In D.V. Displays, the same Board majority directed a single elec-
tion among the employees in both the existing historical unit and an
unrepresented fringe group at the same plant. As stated above, there
is no true fringe group in the present case. Rather, the Ward-Bell
route drivers at Sarasota-Bradenton constitute an appropriate plant
unit in themselves. Further, the Board's rationale in D.V. Displays
stated that the fringe group of employees had been unrepresented in
the past clue to an historical accident. Such was not the situation
herein. On the contrary, at the time that the last contract was signed,
Ward-Bell had only a St. Petersburg plant. In addition, only one
union was involved in D.V. Displays, whereas two unions are con-
testants herein.
Accordingly, we find that the route drivers at the represented plants
of Continental's Holsum Division constitute an appropriate unit on
the basis of the existing bargaining history, and that the route drivers
at the unrepresented plants constitute a. separate appropriate bargain-
ing unit on the basis of an appropriate geographical grouping of
plants. We further find that the route drivers at the represented
plants of Ward and Bell constitute an appropriate unit, on the basis
of the existing bargaining history, and that the route drivers at the
unrepresented plant constitute a separate appropriate bargaining unit,
on a, single-plant basis.
It is Board policy, however, that no election may be held without
a proper showing of interest.15 Petitioner has made a showing of
interest among the Bell route drivers at the unrepresented plant in
Sarasota-Bradenton.1fi Neither Petitioner nor Intervenor has a suffi-
cient showing of interest among the unit of unrepresented route
drivers of Continental. Therefore, the elections hereinafter directed
" Felix Half & Brother, Inc, 132 NLRB 1523.
15 Du-Wei Decorative Company et at., 125 NLRB 31 ; Avco Corporation , et at., 131
NLRB 921.
1e Intervenor will be placed on the ballot subject to its making an adequate showing of
interest.
BELL BAKERIES OF ST. PETERSBURG, ETC. 1351
among these employees and the participation of the labor organiza-
tions are conditioned on an adequate showing of interest being made
among these employees.
In sum, we find appropriate the following units:
Unit 1: All transport drivers employed by Continental Baking
Company (Holsum Division) at its Tampa, Florida plant, excluding
all route drivers, production and maintenance employees, office cleri-
cal employees, guards, and supervisors as defined in the Act.
Unit 2: All transport drivers employed by Ward Baking Com-
pany and Bell Bakeries of St. Petersburg of Ward Baking Company,
at their Tampa and St. Petersburg, Florida plants, excluding all
route drivers, production and maintenance employees, office clerical
employees, guards, and supervisors as defined in the Act.
Unit 3: All route drivers employed by Continental Baking Com-
pany (Holsum Division) at its Tampa and St. Petersburg, Florida,
plants, excluding all transport drivers, production and maintenance
employees, office clerical employees, guards, and supervisors as de-
fined in the Act.
Unit 4: All route drivers employed by Continental Baking Com-
pany (Holsum Division) at its plants in Clearwater, Sarasota-
Bradenton, Fort Myers (including Port Charlotte), Orlando, and
Lakeland (including Dade City), Florida, excluding all transport
drivers, production and maintenance employees, office clerical em-
ployees, guards, and supervisors as defined in the Act.
Unit 5: All route drivers employed by Ward Baking Company at
is plants in Tampa, Sarasota-Bradenton, and St. Petersburg (includ-
ing Dade City and Clearwater), Florida, and all route drivers em-
ployed by Bell Bakeries of St. Petersburg of Ward Baking Company
at its plants in Tampa, St. Petersburg, and Lakeland, Florida, ex-
cluding all transport drivers, production and maintenance employees,
office clerical employees, guards, and supervisors as defined in the Act.
Unit 6: All route drivers employed by Bell Bakeries of St. Peters-
burg, of Ward Baking Company at its plant in Sarasota-Bradenton,
Florida, excluding all transport drivers, production and maintenance
employees, office clerical employees, guards, and supervisors as de-
fined in the Act.
In the event that the same union wins the elections among the two
units of route drivers at Continental, or Ward and Bell, the separate
route-driver units at Continental, or Ward and Bell as the case may
be, shall thereupon be merged into a single appropriate unit .17
[Text of Direction of Elections omitted from publication.]
17 As we have made appropriate unit findings , no necessity exists for the pooling of votes
in any circumstances.