Continental Baking Co.

National Labor Relations Board - Board Decisions

Jun 17, 1952

99 N.L.R.B. 777 (N.L.R.B. 1952)

CONTINENTAL BAKING COMPANY 777
requirements in Section 102.61 of the Rules and Regulations should
now be extended, particularly where the function of the statement is
merely to aid the Regional Director in an investigation he had already
.been called on to make by validly filed and served objections.
The majority in effect holds that the later R & R and Beacon cases,'
which require service of.exceptions, have qualified the Board's earlier
holding in the Wilson case. But since those cases the Board unani-
mously reasserted its right and duty to set aside an invalid election
although no objections were filed by the parties." We are unable to
perceive why, as in the Worthington case, a party should be in a
better position by not filing any objections to, an invalid election than,
.as in the present case, by making a bona fide, but unsuccessful, effort to
file appropriate objections.
Such an interpretation of our Rules and Regulations as is announced
by the majority members, far from promoting a principle of fairness
to the Employer, exalts procedure over substance to work a far greater
.injustice to the Petitioner. Thus, the majority's decision enables the
Employer to evade the consequences of what, in this posture of the
controversy, we must assume to be election interference. Finally, we
are of the opinion that the Employer did receive a copy of the state-
ment of reasons within the time limit as validly extended by the Board
.agent, namely, by the time of the first conference.
We would therefore proceed to a consideration of the merits of the
[preelection announcement as interference with the election in this case.
' R & R News Lompaaug, 92 NLRB 1134; Beacon Manufacturing Company, 94 NLRB 881.
B Wo,'thington Pump and Machinery Corporation, 99 NLRB 189.
'CONTINENTAL BAKING COMPANY and CONTINENTAL BAKING DIVISION
OF TILE BAKERY & CONFECTIONERY WORKERS INTERNATIONAL UNION
or AMERICA, AFL, PETITIONER
BAKER'S NEGOTIATING GROUP, RICHMOND, `TIRGI' IA, AREA, and BROMM
BAKING COMPANY, INC., GENERAL BAKING COMPANY, INC., CONTI-
NENTAL BAKING COMPANY, INC., NOLDE BROTHERS, INC., ET AL.,
PETITIONES and LOCAL 358, KAKERY AND CONFECTIONERY WORKERS
INTERNATIONAL UNION OF AMERICA, AFL, ET AL. Cases Nos.
2-RC-235,7 and 2-RM-215 through 2-RM-268. June 17, 1952
Decision and Order
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
1. L. Broadwin, hearing officer. The hearing officer's rulings made
-at the hearing are free from prejudicial error and are hereby affirmed.
The motion of Continental Baking Company, herein called Conti-
'99 NLItB No. 123.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nental, to dismiss the petition upon the ground, among others, that the
proposed unit is inappropriate is granted for the reasons set forth
hereinafter.
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 Herzog and Members Murdock and Styles]. Oral
argument was heard by the Board in Washington, D. C., on April 29,
1952.
Upon the entire record in this case, the Board finds :
1. The Employers are,engaged in commerce within the meaning of
the Act.
2. Continental Baking Division of the Bakery & Confectionery
Workers International Union of America, AFL, herein called Con-
tinental Division, is a labor organization claiming to represent em-
ployees of Continental.'
3. No questions affecting commerce exist concerning the represen-
tation of employees of the Employers within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
Unit Positions
Continental Division seeks to represent, in a single unit, inside
employees now represented by locals of the Bakery & Confectionery
Workers International Union in all Continental plants-and no
others-throughout the United States, excluding employees in plants
in Indianapolis, Indiana; Washington, D. C.; and San Francisco,
Sacramento, and Oakland, California. Continental Division would
exclude employees in Indianapolis because they are represented by
another labor organization, and employees in the other named cities
because the locals of the Bakery & Confectionery Workers Interna-
tional Union which now represent them have voted not to join Conti-
nental Division. In the alternative, however, Continental Division
is prepared to accept a unit which includes employees in all Continen-
tal plants, excluding only those in Indianapolis.
The various petitioning local employer associations seek separate
local area, multiemployer units coforming to existing units. Conti-
nental contends that neither the original nor the alternative unit
' At the hearing , Continental moved to dismiss Continental Division 's petition upon the
ground that Continental Division is not a labor organization within the meaning of the
Act The motion is without merit and is hereby denied. Continental Division exists for
the purpose of "dealing with employers concerning grievances , labor disputes , wages,
rates of pay, hours of employment , or conditions of work." It is therefore a "labor
organization" as that term is defined in Section 2 (5) of the Act. Whether Continental
Division was unlawfully constituted , as argued by Continental, does not affect its de facto
existence as a "labor organization." The question of the legality of its establishment, iv
an internal union matter which is not a concern of the Board. Sperry Gyroscope Com-
pany, 88 NLRB 907.
CONTINENTAL BAKING COMPANY 779
sought by Continental Division is appropriate, principally because of
the long history of local collective bargaining on a multiemployer
basis, the local nature of the baking business, and, the local- autonomy
of its branch plants 2
Continental's Organizational Structure
Continental is the Nation's largest wholesale baker. It operates
83 bakeries in 65 cities, included within 57 local areas , scattered
throughout the United States. Some of the plants, produce bread,
others cake. The principal products produced and sold are "Wonder
Bread" and "Hostess Cake," which are nationally advertised trade
names. Except for minor modifications in some areas , uniform for-
mulae are used in producing the bread and cake.
For administrative purposes, the 83 plants are grouped in 11 regions,
each of which is in charge of a regional manager. Headquarters of
the entire company are in New York.
Each plant manager is in charge of production, equipment, and
personnel in his plant, except that he cannot change the bread,and
cake-making formulae. Nor can he, change prices, unless necessary to
meet competition on one or more of his routes. Each plant prepares
its own payroll and pays its employees by drawing on local bank
accounts. Each plant manager does his own hiring, training, pro-
moting, and firing of personnel. Employees are recruited locally.
There is very little transfer of employees between plants. Further,
according to Continental, although this is disputed by Continental
Division, each plant manager has complete responsibility for, and the
final decision in, collective bargaining negotiations affecting the em-
ployees in his plant.
Each regional manager has a small staff consisting usually of a
sales manager, regional production managers for bread and cake, a
cost analyst, a motor vehicle supervisor, and clerks. The regional
manager is responsible for the maintenance of sales volume and the
profitable operation of the plants in his region. Although Continental
insists that any final decision in local area negotiations rests with the
local plant manager, the record shows that in some areas either the
regional manager or some member of his staff has represented, appar-
2 In view of our holding on the facts in this case , we find it both unnecessary and inap-
propriate to express our views on Continental's further contention that the Board may
not permit the severance of its employees from the existing multiemployer local groups.
Unlike our dissenting colleague , who prefers to devote so much of his separate opinion
to discussion of an issue that need not be decided here, we prefer to follow the well-
entrenched policy of the courts and this Board of uttering no abstract generalizations
unnecessary to a concrete decisions. See Matthew VI, 34.
.The fact that the parties may have litigated the issue does not compel a contrary
course (Chicago Typographical Union, 86 NLRB 1041, 1046), nor would adoption of
such a course even provide a useful practical guide to the parties or the world in a case
decided by only three members of the Board.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ently with full authority, local plants in local area, multiemployer
collective bargaining negotiations.
At New York headquarters, sales, advertising, purchasing, and
routing of materials from producers to local plants, insurance, legal,
and financial functions are centralized and performed for the entire
organization. There are also engineering and production departments
which help plant and regional personnel with technical problems, and
an accounting department which keeps records of the Company's
business transactions.3
Continental has no labor relations or personnel department in New
York. It has a legal department which consists of George Faunce, Jr.,
vice president and member of the board of directors, and his secretary.
Faunce's role in bargaining matters is in dispute. According to
Faunce, his duties comprise passing on any sort of written document,
deed, or other legal instrument, giving legal advice, hiring lawyers
when necessary, and supervising litigation. As part of his duties, he
passes on the legality of proposed clauses in labor contracts. His
decisions on these points are final. He denies, however, any authority
to bind local managers on matters of wages, hours, or working condi-
tions. He admits that on occasion his advice on these points has been
solicited by local or regional people, but denies that this advice has
been or is necessarily followed.' On the other hand, the evidence
shows that over the past 10 or 12 years, Faunce has sometimes been
present at local bargaining negotiations. He has also less frequently
participated in such negotiations or helped in the settlement of local
disputes."
History of Collective Bargaining
Continental's policy is to bargain collectively through local employer
bargaining associations wherever possible, and to abide by the terms
of agreement reached by such groups. This policy has been followed
in past bargaining for employees in all but five of its plants. As to
these five plants,6 bargaining has been on a single-plant, single-
company basis.
3 The accounting department does not, however , keep cost records. These are maintained
in the regional offices.
+ According to Faunce : "Many contracts come in completed to our office for filing and
informational purposes , and that is the first I know they have been completed . There is
no pattern or plan or system unless there is a clearly legal question . . . and then they
are supposed to call me and get my opinion . That is my duty with the company."
5It is unnecessary to decide precisely the role played by Vice-President Faunce and
regional office personnel in local area negotiations , because wages , hours, and working
conditions for Continental employees have been fixed primarily not by Continental, but by
the local area bargaining associations to which Continental belongs. Most of these
associations make their decisions by majority vote. Continental has always accepted the
decision of the majority, even when outvoted.
6 Utica, New York ; Lawrence and Holyoke, Massachusetts ; Paterson, New Jersey ; and
Waterloo, Iowa,
CONTINENTAL BAKING COMPANY 781
The local employer associations of which Continental is a member,
together with other baking companies in each area, have bargained on
a multiemployer basis with various labor organizations for from 4, to
50 years. Continental joined these local employer associations as its
employees were unionized, beginning about 12 years ago. This bar-
gaining on a local multiemployer basis has covered not only employees
represented by locals of the Bakery & Confectionery Workers, but also
employees represented by other American Federation of Labor unions,
such as International Association of Machinists; International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America; International Union of Operating Engineers; International
Brotherhood of Firemen & Oilers; and Building Service Employees'
International Union.
In a number of cases in the wholesale baking industry, the Board
recognized the validity of this local, multiemployer bargaining history
and refused to permit the severance of the employees of a single com-
pany from the association-wide unit.' In several of these cases, the
Bakery & Confectionery Workers joined in opposition to such sever-
ance. In addition, union-shop authorization elections under former
Section 8 (a) (3) (ii) of the Act were conducted by the Board for
local association-wide units, pursuant to stipulations of locals of the
Baking & Confectionery Workers and the local employer associations.
Continental Baking Division ,
In December 1949, the Bakery & Confectionery Workers established
Continental Baking Division for the purpose of bargaining with Con-
tinental on a Nation-wide, single-company basis. All locals having
members employed by Continental, as well as employees in Conti-
nental plants, voted to join Continental Division, except locals and
plant employees in Washington, D. C., and Sacramento, San Fran-
cisco, and Oakland, California." Out of defetence to these opposition
locals Continental Division in its petition does not seek to include
employees of Continental represented by them.9
7 Hathaway Bakery, Inc., Case No. 1-RC-2132, unpublished decision on appeal from
Regional Director 's refusal to issue notice of hearing, dated May 17, 1951 ; General Baking
Company, 90 NLRB 588; Baking Industry Council, 80 NLRB 1590 ; Ward Baking Company,
78 NLRB 781 ; Continental Baking Company, 41 NLRB 998.
8 According to the business agent for the Washington local, his members refused to join
Continental Divisign because they feared that single-company bargaining would result in
different wage scales for the same work, which was contrary to the local 's policy, or would
lead to the elimination of smaller bakeries which might be unable to pay the wage scale
obtained from more prosperous companies.
9 However , as pointed out above , Continental Division is willing to include such employees
if the Board considers their inclusion necessary to constitute an appropriate unit. Plants
in these four cities employ approximately 10 percent of all Continental plant employees.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Appropriateness of a Single Company, Nation-Wide Unit
Section 9 (b) of the Act provides :
The Board shall decide in each case whether, in order to assure
to employees the fullest freedom in exercising the rights guar-
anteed by this Act, the unit appropriate for the purposes of col-
lective bargaining shall be the Employer unit, craft unit, plant
unit, or subdivision thereof. [Emphasis supplied.]
Except in respect to professional employees, members of a craft,
and guards, the Act lays down no specific guides to aid the Board in
determining whether in any given case an "employer unit, craft unit,
plant unit, or subdivision thereof" is appropriate. However, in its
decisions over the years the Board has itself developed a central prin-
ciple and rules for unit determination.-
First and foremost is the principle that mutuality of interest in
wages, hours, and working conditions is the prime determinant of
whether a given group of employees constitutes an appropriate unit."
In deciding whether the requisite mutuality exists, the Board looks to
such factors as the duties, skills, and working conditions of the em-
ployees involved, and especially to any existing bargaining history.12
In relevant cases, the Board also considers the extent of organization '13
10 See the Board ' s Annual Reports.
11 Sixteenth Annual Report (1951), p 86; Fifteenth Annual Report ( 1950 ), p 39, Four-
teenth Annual Report ( 1949 ), p. 32; Thirteenth Annual Repoit (1948), p. 36, Chrysler
Corporation, 76 NLRB 55.
Continental Division asserts that in making unit determinations the Board should
favor that unit which gives to employees the greatest degree of bargaining power. There
are a number of objections to considering a power factor in making unit determinations.
In the first place , except for opinions expressed in a few early Board decisions ( Pittsburgh
Plate Glass Company, 10 NLRB 1111 ; Libby-Owens Ford G lass Company , 10 NLRB 1470 ;
dissenting opinion of M ember Edwin S. Smith in Libby-Owens Ford Glass Company, 31
NLRB 243 ), the Board has exclusively followed a mutuality of interest test in deciding
what is an appropriate unit. The relevant portion of Section 9 ( b) of the Wagner Act
was reenacted without substantial change in the present Act. There is not the slightest
evidence that Congress intended to supplant or supplement the mutuality of interest
standard with a power factor test . See Sen . Rep. No 105 , 80th Cong. 1st Sess. p. 11.
Under such circumstances , it i4,a fair assumption that by reenacting Section 9 ( b), Con-
gress accepted the Board 's mutuality of interest standard for unit determination.
N. L. R. B v. Gullett Gin Co., 340 U. S 361 ; National Tube Company, 76 NLRB 1199.
In the second place, we do not believe that , even considering Section 9 ( b) together
with Section 1 of the Act, as urged by Continental Division , the inference is warranted
that Congress intended that the Board should consider the power factor in unit determi-
nation. Section 1 only discusses inequality of bargaining power between employers and
-,employees who do not possess full freedom of association or actual liberty of contract."
That is not the case here . In thn third place , the application of a power test would
bring economic warfare to the forefront of collective bargaining , instead of keeping it in
the background where it belongs . Indeed, one of Continental Division ' s objections to the
present units seems to be that it is handicapped by not being able to strike all Continental
plants at the same time . Finally , the Board would be faced with an impossible adminis-
trative problem in trying to decide when equality of bargaining power does or does not
exist. For all these reasons , we reject the proposed power factor as a test in unit
determinations
12 "Self-organization which has resulted in successful collective bargaining in the past
can be relied on as a guide for future collective bargaining ." Third Annual Report ( 1938),
p. 160. See also Illinois Cities Water Company, 87 NLRB 109.
13 Under Section 9 (c) (5) extent of organization cannot , however, be given controlling
effect. Southwestern Electric Service Company, 87 NLRB 109.
CONTINENTAL BAKING COMPANY 783
and the desires of employees where one of two units may be equally
appropriate.14 Where the employees in more than one plant of an
employer are involved, such factors as the extent of integration be-
tween plants, centralization of management and supervision, employee
interchange, and the geographical location of the several plants are
also considered 15
Continental Division argues that a Nation-wide unit of Continental
employees is appropriate, because single-employer units are "in-
herently appropriate."- This argument is based on a misunderstand-
ing of the Board's use of this and similar expressions. In those cases 11
where the Board said that a single-employer unit was "inherently"
or '`presumptively" appropriate, it was concerned with the issue of
whether a single-employer or a multiemployer unit was appropriate.
In none of these cases did the issue involve the appropriateness of a
multiplant, single-company unit. A company-wide unit comprising
employees in many plants may be appropriate, because Section 9 (b)
specifically lists the "employer" unit among possible appropriate units.
But whether such a unit is appropriate in any given case depends on
the facts of that case .18
The Board has sometimes granted the request of a labor organiza-
tion for a multiplant, company-wide unit,19 but it has also refused such
la The power to determine the appropriateness of bargaining units is conferred by the
statute upon the Board, but the desires of the employees regarding the unit in which they
are to be represented will be given effect in cases where the Board finds two distinct units
would be equally appropriate" Fifteenth Annual Report ( 1950 ), p. 43.
35 Sixteenth Annual Report (1951), pp. 98-102, Fifteenth Annual Report ( 1950), p. 45
16 Crucible Steel Castings Company, 90 NLRB 1843 ; Rainbo Bread Company, 92 NLRB
181
"For example , in the Rainbo Bread case , supra, the Board said "Presumptively a
single-employer unit is an appropriate unit . To defeat a claim for such a unit tin favor of
a broader unit, a controlling history of collective bargaining on the broader basis must
exist." [ Emphasis supplied.]
"In the recent Western Electric Company, Incorporated, case (98 NLRB 1018), the
Board said :
On its face , the unit requested [ a Nation-wide unit] is appropriate because It is
coextensive with the entire company. A unit of such scope is the first one called
appropriate in section 9 (b) of the Act, upon which the Board's authority to establish
collective bargaining units tests Apart from situations controlled or affected by
special statutory requirements , it is alsoi the basic unit recognized by the Board since
its earliest days Indeed, it may be stated as a general rule that , absent any
statutory considerations , the Board does not refuse to grant a company-wide unit to
a labor organization unless it is affirmatively shown that a smaller one is more
appropriate.
This paragraph was not intended to suggest that a multiplant, company- wide unit is
always appropriate. Consideration of traditional factors pointed to the appropriateness
of a multiplant unit in that case On the other hand, the factors present in this case,
particularly the long history of multicompany bargaining on a local basis, indicate the
inappropriateness of the single -company, Nation -wide unit desired by Continental Division.
'9 For example , Western Electiie Company, Incorporated , supra ; The Reliance Electric h
Engineering Company, 98 NLRB 488 ; Illinois Bell Telephone Company, 95 NLRB 913;
Borden Company , Hutcheson Ice Cream Division, 89 NLRB 227; John Hancock Mutual
Life Insurance Company , 82 NLRB 179.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a request.2° The decision in each case has turned on the facts of that
case. Where the Board has found a multiplant unit appropriate, it
has relied principally on evidence of integration, centralized control,
or bargaining history on a multiplant basis.2' On the other hand,
where the Board has declined to find a company-wide unit appropriate,
some or all of these factors have been absent. 2
The baking of the same products and the fact of a common employer
are the only apparent justification for joining employees in more than
80 widely scattered plants into a single bargaining unit. The cen-
tralization of such functions as purchasing, advertising, and insurance
are not significant factors, because they have no effect upon the in--
terests of production employees. On the other hand, numerous factors
which the Board customarily considers as significant emphasize that
employee community of interest in this industry is local rather than
national.
Continental's plants are scattered over thousands of miles of terri-
tory. Some plants are as many as 3,000 miles apart. There is there-
fore little or no contact among employees of the several plants. Nor
is there any interchange of employees among plants, except on. an,
insignificant scale. Because of the perishability of its product, the
wholesale baking industry is essentially local 23 Each of Continental's
plants is to a considerable extent an autonomous operation. Each
plant bakes bread or cake for distribution to the surrounding' geo-
graphical area. The manager has complete authority to hire, promote,
discharge, and discipline production and maintenance employees.
Payrolls are prepared in each plant and are met by drawing on funds.
deposited in local banks. Job classifications vary from plant to plant.24'
So do wages, hours, terms, and conditions of employment, as the result
of the long history of bargaining on a local basis.
Especially significant on the appropriateness of the unit is the long
history of collective bargaining on a local area, multiemployer basis.
20 For example , Yellow Transit Company , 92 NLRB 538 , Roddis Plywood & Door Com-
pany, Inc., 84 NLRB 309 ; Fairmont Foods Company, 81 NLRB 1092 ; Conant Ball Company,
78 NLRB 884 ; Colorado Builders ' Supply Company, 18 NLRB 29.
21 See cases cited in footnote 19, supra. Borden Company, Hutcheson Ice Cream Division,
supra, relied on by Continental Division falls in the above pattern . In that case, the
Board found appropriate a unit covering 3 ice cream manufacturing and 17 distribution
plants in the State of Iowa. The Board found that the multiplant unit was appropriate
because of the integration of the employei ' s operations Further there was no bargaining
history. Compare the Borden case with Fairmont Foods Company, 81 NLRB 1092.
22 See the cases cited in footnote 20, supra.
23 "Wholesale bakeries may vary greatly in size from plants serving only a few local'
routes to plants serving markets within a radius of 100 or more miles by means of fleets
of transport trucks which supply outlying depots from which deliveries are made. How-
ever, essentially each plant is a comparatively local unit, as distribution is limited to the
geographical area which can be supplied daily with fresh bakery products ." [Emphasis
supplied ] Report of the Federal Trade Commission on Wholesale Baking Industry, 79th'
Cong., 2d Sess ., House Doe. No. 535 ( 1946 ), p. 2; see also Job Description for Bakery
Products Industry, U. S. Dept. of Labor , 1939, p. XII ; Omar, Inc., 69 NLRB 1126.
24 In Washington , D. C, production workers are classified as journeymen , apprentices,
or helpers . In other plants, there may be a score or more production classifications.
CONTINENTAL BAKING COMPANY 785
This bargaining history has covered not only employees represented
by locals of the Bakery & Confectionery Workers, but also those repre-
sented by other uniolls.15 This pattern of bargaining was created and
continued by voluntary action of labor organizations representing
various employee groups, including locals of the Bakery & Confec-
tioner Workers, and of employers. Until the present controversy
arose, it apparently operated to the satisfaction of all parties con-
cerned. At the present time, other unions and several locals of the
Bakery & Confectionery Workers find the traditional method of bar-
gaining an adequate means for achieving the normal objects of collec-
tive bargaining. So far as it lies within the Board's power, we should
not upset traditional methods of bargaining except for very cogent
reasons. For "collective bargaining is facilitated by adhering to the
methods of the past, in the absence of any indication that a change in
these methods has become necessary." 26 We see nothing in the ar-
guments advanced by Continental Division to justify a finding that
such a change has become necessary.
For all the foregoing reasons, we conclude and find that the multi-
plant, Nation-wide, single-employer unit sought by Continental Divi-
sion is not appropriate for collective bargaining purposes. We shall
therefore dismiss Continental Division's petition.
At oral argument and in a later letter to the Board, the Employer-
Petitioners indicated that they did not desire elections if the Board
found Continental Division's proposed unit inappropriate. In view
of our finding to this effect, we shall dismiss the Employer petitions.
Order
IT IS FIEREBY ORDERED that the petitions filed herein be, and they
hereby are, dismissed.
MEMBER STYLES, dissenting :
The Continental Division seeks a unit consisting solely of the inside
employees in virtually all the plants of the Employer, Continental.
As stated in the majority opinion, Continental contends that the unit
sought is inappropriate because of (1) the history of collective bar-
gaining on a single-plant multiemployer basis between Continental
and the various locals of the Bakery & Confectionery Workers Inter-
national Union; (2) the local nature of the baking business; and (3)
the local autonomy of Continental's branch plants.-
The first of these objections, based on bargaining history, has two
branches, only one of which is considered in the majority opinion.
While discussing-at length the contention that the history of bargain-
25 See Kenosha Auto Transport Corporation, 98 NLRB 482; Columbia Marble Company,
89 NLRB 1482; Columbia Pictures Corporation, 84 NLRB 647.
26 Third Annual Report (1938 ), p. 160.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing on a single-plant basis militates against the appropriateness of the
proposed employer-wide, multiplant unit, my colleagues make no
reference to the further contention of Continental and the local unions.
That contention is that to establish a single-employer unit, as pro-
posed by Continental Division, would necessitate the severance of
Continental's inside employees from each of the existing local multi-
employer groups through which Continental has bargained in the past,,
and that such withdrawal by Continental Division of Continental's
employees from the existing multiemployer groups would conflict
with the Board's alleged policy against permitting unions, although.
not employersf to sever from a multiemployer group the employees-
of a particular member of the group.
This contention is, in essence, that once a union participates therein,
it becomes the prisoner of multiemployer bargaining, at least until
such time as the employers may deign to release it therefrom. Al-
though a major portion of the record, the briefs of the parties, and
the oral argument before the Board, was devoted to this issue of the
privilege of a union to withdraw from multiemployer bargaining,
although it is a question which has never been squarely decided by the
Board, and although the resolution of this question is, in my opinion,
essential to clarify the rights of participants in multiemployer bar-
gaining, in general, and of the parties in this case, in particular, my
colleagues have not seen fit to advert to this important issue. They
have instead been content to dispose of the case on the ground that
the multiplant, employer-wide unit is inappropriate, presumably on.
the basis of assuming, without deciding, that such withdrawal would
be permitted if the requested unit was appropriate.
I cannot but deplore the fact that my colleagues have neglected
this opportunity to express their views on this issue in the case. As,
matters now stand, the parties are completely in the dark as to the
appropriateness of any unit other than the existing local, multiem-
ployer groups. Should Continental Division, or one of its affiliated
locals, desire at some future date to sever from one of the existing
multiemployer groups a single plant of Continental or of any other
employer-member, it would find nothing in the majority opinion
that would shed any light on the appropriateness of such a unit. The
majority would thus require the parties to go through the additional
expense, litigation, and delay entailed in another hearing in order to
obtain a Board ruling on an issue which has been presented in this
case as one of the utmost importance. My colleagues' approach to
this question on an "assuming, without deciding," basis may well
serve as a convenient method of enabling them to avoid taking a posi-
tion on this highly controversial issue. Unfortunately, however, fail-
ure to pass on this issue (one .way or another) by this Board, the
only forum to which the matter has been entrusted by statute for
CONTINENTAL BAKING COMPANY 787
peaceful determination, may well contribute to the outbreak of that
economic strife with its attendant disruption,to ,interstate commerce
which it is the policy of this Act to prevent and minimize. A state-
ment for ruling of the Board's position in this issue would obviate the
need for further resort to the Board in such a contingency, and would
aid not only the parties in this case but also employers and unions
in general to adjust among themselves any differences that might
arise in the future over proposed deviations from a pattern of multi-
employer bargaining. Candor, fairness, justice to the parties, and
my obligations as an administrator of this Act impell me to express
my views on this important issue in the case.27
Multiemployer bargaining has received wide acceptance and is an
important factor in present-day labor relations. Past decisions of
the Board have given impetus to this trend. In these decisions the
Board has generally held that where a group of employers has negoti-
ated jointly with a particular union as the representative of their
employees, all such employees constituted an appropriate unit. The
Board has reached this result notwithstanding that Section 9 (c) of
the Act does not authorize the Board to establish any unit broader
than one comprising the employees of a single employer. The Board's
acceptance of multiemployer units previously established by the par-
ties seems, therefore, to be supportable only on the ground that such
units are in effect based on the mutual consent of the employers and
the employees involved.211 Recognition that this is the only valid
basis for finding such units appropriate is reflected in the many Board
decisions permitting employers to withdraw virtually at will from
multiemployer units. However, more recent decisions of the Board
have cast somA, doubt on the effect to be given by the Board to the
desires of employees acting through their bargaining representative
to withdraw from multiemployer bargaining. Generally speaking,
these have been cases in which the Board has declined to permit the
breakdown of a multiemployer unit at the request of an "outside" or
nonincuinbent union. However, prior to the present case, the Board
had taken no definitive position on the precise question here presented,
namely, the effect to be given to the withdrawal of an incumbent union
from multiemployer bargaining.29
27 Contrary to my colleagues ' assertion, this Board and the courts frequently deem it
appropriate and desirable to express their views on an important issue in a case despite
the fact that the ultimate decision turns on a different ground See , e. g., Republic Steel
Corporation, 84 NLRB 483 : Times Publishing Co, 72 NLRB 672; N. L. R B. v. Bradley
Washfountain Co, 192 F. (2d) 144 (C A 7)
28 See Pepsi- Cola Bottling Company, 55 NLRB 1183, 1187; The Lamson Brothers Com-
pany, 59 NLRB 1561 In those cases , in declining to find appropriate a multiemployer
unit, despite a history of multiemployer bargaining , the Board cited the absence of evi-
dence that such bargaining reflected the desires of the employees involved
28 See Morand Brothers Beverage Co , 91 NLRB 409, remanded on other grounds, 190
F. 2d 576 (C A. 7), where the majority of the Board found appropriate a single -employer
unit resulting from the withdrawal of an incumbent union from multiemployer bargaining
after reaching an impasse in the 9oint negotiations.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If, as I believe to be the case, the multiemployer unit must find
its legal sanction in the consent of the parties, there is no warrant
for giving any less weight to the wishes of the union or employees than
to those of the employers. Consistency, equity, and fair play require
that unions be accorded the same privilege as employers to sever at
will from a multiemployer unit all the employees of a particular
employer for whom they have been bargaining on a multiemployer
basis.
The Employers in this case urge, however, that only the employer-
members of a multiemployer group are free to secede from joint
bargaining, and that the union has no like recourse, no matter how
unsatisfactory or oppressive such a mode of bargaining may become
from the union's standpoint. Such a position not only ignores the
consensual basis of multiemployer units, but also overlooks the policy
of Section 9 (b) of the Act that the Board select the type of unit which
will "assure to employees the fullest freedom in exercising the rights
guaranteed by the Act," including, of course, the right to bargain col-
lectively. To permit employers to alternate between multiemployer
and single-employer bargaining, choosing that form which is best
calculated to give them the most advantageous bargaining position,
while denying the same freedom of choice to incumbent unions which
represent the employees would be a clear perversion of the statutory
policy.
Whether or not the statute requires, as Continental Division con-
tends, that the Board select that type of unit which will tend to
equalize the bargaining positions of unions and employers, Section
9 (b) clearly does not contemplate that the Board adopt with respect
to its unit determinations a policy of unequal and less favorable treat-
ment of unions, that cannot fail to aggravate the inferiority of their
bargaining position, and correspondingly to enhance that of the
employer. If the Board is to make multiemployer bargaining a one-
way street, with employers, but not unions, free to shift to single-
employer bargaining as soon as joint bargaining ceases to serve their
interests, the only multiemployer groups which will tend to survive
will be those which are peculiarly advantageous to employers and, by
the same token, peculiarly disadvantageous to the unions involved.
In the long run, therefore, multiemployer bargaining, by a process of
elimination, will tend to become "loaded" in favor of the employer
participants, and a means of denying, rather than assuring, to
employees the fullest freedom in the exercise of their right to bargain
collectively.
This retrogressive tendency can be avoided only by returning to
first principles and recognizing that the union's (or employees') con-
tinuing consent to a multiemployer unit is as indispensable as that of
the employers to a finding that such a unit is appropriate. Once it
CONTINENTAL BAKING COMPANY 789
is clear that unions are not prisoners of multiemployer bargaining,
but, whenever their interests dictate, may revert, like employers, to
single-employer units, multiemployer bargaining will continue to
function and justify itself only to the extent that it offers mutual
advantages to both sides at the bargaining table.
I would, therefore, hold expressly in this case that the bargaining
history on a multiemployer basis does not, as Continental contends,
preclude a finding that the single-employer unit here sought is
appropriate.
I would find, further, contrary to my colleagues, that, notwithstand-
ing the other objections of Continental to the employer-wide unit,
such a unit is appropriate for purposes of collective bargaining and
I would direct an election therein.30
In a recent case,31 the Board, in finding appropriate a multiplant,
employer-wide unit, stated :
On its face, the unit requested is appropriate because it is
coextensive with the entire company. A unit of such scope is the
first one called appropriate in Section 9 (b) of the Act, upon
which the Board's authority to establish collective bargaining
units rests. Apart from situations controlled or affected by spe-
cial statutory requirements, it is also the basic unit recognized
by the Board since its earliest days. .. .
The unit found appropriate in that case comprised 13 plants widely
scattered throughout the United States. As to some of the plants
involved, there had been a history of bargaining at the local plant or
area level through local representatives of the employer. Notwith-
standing these factors, the Board, while recognizing that a smaller
unit might also be appropriate, granted the petitioner's request for
an election in the over-all employer-wide unit.
So here, while there are factors pointing to the appropriateness of
the single-plant units, and while a request for such a unit, if made,
might properly have been granted, it does not follow that such a unit
is the only appropriate one and that Continental Division's request
for the larger, employer-wide unit must be denied. It was only very
recently that my colleagues, Member Houston, and myself were unani-
mous in emphatically holding that "There is nothing in the statute
which requires that the unit for bargaining be the only appropriate
unit, or the ultimate unit, or the most appropriate unit; the Act re-
quires only that the unit be appropriate." 32
"I would include in such unit the plants in Indianapolis, Indiana, Washington, D C.,
and in San Francisco, Sacramento, and Oakland, California.
"Western Electric Company, Incorporated, 98 NLRB 1018
" See the Morand case, supra The Board, with the Chairman participating, also took
the identical position under the Wagner Act Garden State Hosiery Co, 74 NLRB 318,
324.
215233-53--51
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I conceive it, the proper rule to be applied where, as here, the only
union in the case, is seeking an election in a multiplant, employer-wide
unit, is to find that such a unit, whether or not more or less appropriate
than a single-plant unit, is still an appropriate unit, in itself. Such a
policy is supported by the language and purpose of Section 9 (b).
Underlying the reference therein to the "employer unit" as an alterna-
tive type of appropriate unit, was a recognition by Congress of the
efficacy of employer-wide bargaining in assuring to employees the
fullest freedom in exercising the rights guaranteed by the Act; and
that through such units employees could achieve greater bargaining
power than through units limited to a segment of the employer's
operations.
Moreover, even accepting the approach of my colleagues to this ques-
tion, I am not persuaded that the factors on which they rely compel
the conclusion that the employer unit is inappropriate. They cite the
absence of integration, of centralized control, and of employee inter-
change, as well as the geographical separation between the plants and
the bargaining history on a local plant basis.
The two latter factors-geographical separation and local bargain-
ing-were not thought to be of sufficient import to prevent a finding in
the Western Electric case, supra, that the Nation-wide employer unit
there sought was appropriate.
As for the matter of integration and centralized control, it is not
disputed in this case that sales, advertising, purchasing of materials
for the local plants, routing of materials from producers to the plants,
and the insurance, legal, and financial functions of Continental are all
centralized at its New York City headquarters, and performed there
for the entire organization. The engineering and production depart-
ments, which render technical services to the local plants, are also
located in New York City, as is the accounting department which keeps
records of all the Company's business transactions. Interchange of
employees between plants, although not frequent, does occur. As the
plants produce a uniform product, the tasks of the employees in all the
plants are necessarily identical, and to that extent they have mutual
interests in the conditions of their employment.
The prices of the Company's products are generally speaking uni-
form throughout the country, thus placing a common limiting factor
on the wages of all Continental's employees. While wages and other
terms of employment are ultimately determined by local multiemployer
bargaining, and Continental is in many cases represented in such bar-
gaining by local plant managers, the record reflects many instances of
intervention in local bargaining by regional managers or by Mr.
Faunce, vice president of Continental and a member of its board of
directors. Mr. Faunce, moreover, while in New York City has fre-
E. J. KELLEY COMPANY 791
quently received from local bargaining representatives requests for
advice as to what position to take in contract negotiations.
I am, therefore, unable to find on this record a consistent pattern of
local autonomy in bargaining.33
Under all these circumstances, and upon the entire record, I would
find that whether or not the single-plant unit is appropriate, as con-
tended by Continental, the employer-wide unit in which the only union
in the case is seeking an election is also appropriate, and I would there-
fore direct an election in such a unit.
83 It is significant that the majority opinion, while reciting the relevant evidence on
this point, fails to make any finding that there is a uniform pattern of autonomous bar-
gaining by the local plant managers
E. J. KELLEY COMPANY and JOSEPH ZACHAR, JR., PETITIONER and LOCAL
677, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN , AND HELPERS OF AMERICA , AFL. Case No.
1-RD-97. June 17,1952
Supplemental Decision and Order
Pursuant to a Decision and Direction of Election I issued by the
Board on March 10, 1952, an election by secret ballot was held on
April 9, 1952, under the direction and supervision of the Regional
Director for the First Region, among the employees of the Employer
in the unit found appropriate. Upon completion of the election the
parties were duly furnished a tally of ballots. The tally showed that
of approximately 73 eligible voters, 29 cast valid ballots, of which
none was for, and 29 against, the Union. In addition, there were 73
challenged ballots.
On April 14, 1952, the Union filed objections to the conduct of the
election, including a statement of its position with regard to the
challenged ballots. Pursuant to the Board's Rules and Regulations,
the Regional Director conducted an investigation of the challenged
ballots and the objections to the conduct of the election. On April
25, 1952, the Regional Director issued his consolidated report on ob-
jections and challenged ballots in which he recommended that the
Union's objections be overruled, that the challenges to the ballots of 41
employees also be overruled, and that the challenges to 32 of the ballots
be sustained. The Union filed timely exceptions to the Regional Di-
rector's report. In its objections the Union alleged that the Em-
ployer had interfered with the rights of the employees by transporting
voters to and from the polls in company cars and on company time.
1 98 NLRB 486.
99 NLRB No. 119.