Michigan Bakeries, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1952

100 N.L.R.B. 658 (N.L.R.B. 1952)

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dations with regard to the status of employees, the record discloses
that the general manager, who is in charge of the plant, interviews
recommended applicants and makes decisions on the basis of his
observations. It appears also that the general manager is sufficiently
familiar with the work of the small number of employees to make
personnel changes on the basis of such knowledge.' Such suggestions
as are made by the superintendent and the assistant superintendent
are therefore not effective recommendations within the meaning of
the Act.7 The record also indicates that the assignment of work by
the superintendent and the assistant superintendent is routine in
nature. Their direction of the other employees is of the limited type
usually exercised by experienced employees over those less skilled.8
Moreover, a finding that they as well as the general manager and the
administrative assistant ale supervisors would result in a ratio of four
supervisors to five employees, a very high supervisory ra.tio.° Ac-
cordingly, we find that the superintendent and assistant superintend-
ent are not supervisors within the meaning of the Act L0 and we shall
include them in the unit.
We find that all production and maintenance empfc)yees at the
Employer's plant in Indianapolis, Indiana, including the uperintend-
ent and assistant superintendent, but excluding office and clerical
employees, guards, professional employees, administrative assistant,
general manager, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication iii this
volume.]
At least 30 percent of the general manager's time is spent in the plant . And in his
absence the administrative assistant conveys his instructions or those of the Employer's
president to the superinterdent or "the man in charge."
Emil Denemark , Inc., 97 NLRB 1107.
9 Potash Corporation of America, 97 NLRB 511 ; Geo. Knight 4 Co., 93 NLRB 1193.
9 See Potash Corporation of America, supra; and Geo. Knight 4 Co., supra, in which an
inordinately high supervisory ratio was held to be a factor in determining whether or not
supervisory authority exists.
'" Titles as such cannot safely be used as a guide in uetermining supervisory status.
S'tverwood's, 92 NLRB 1114.
MICHIGAN BAKERIES, INC.1 and ROBERT D. MCPHEE, PETITIONER and
GENERAL TEAMSTERS UNION LOCAL No. 406, INTERNATIONAL BROTH-
ERHOOD OF TEAMSTERS, CFIAUFP'EURS, WARETIOUSEMEN AND HELPERS
^.F AMERICA, A. F. L. Case No. 7-RD-116. August 1.5, 1952
Decision and Direction of Election
Upon a petition for decertification duly filed, a hearing in this case
was held before Jerome H. Brooks, hearing officer. The hearing
The Employer's name appears as amended at the hearing.
100 NLRB No. 106.
MICHIGAN BAKERIES, INC. 659
officer's rulings made at the hearing are free from prejudicial- error
and are hereby affirmed.
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 [Members Houston, Styles and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The Petitioner asserts that the Union is no longer the bargaining
representative of the employees of the Employer as defined in Section
9 (a) of the Act.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
The Union contends that an oral agreement of November 23, 1951,
extending to the employees at the Petoskey plant, whose decertification
is here sought, the terms of two contracts covering the employees at
the Grand Rapids installation, is a bar to this proceeding. Alterna-
tively, it argues that two written agreements executed on February 15,
1952, bar the instant petition.
On September 17, 1950, the Union and the Employer executed a
contract pursuant to which the Union was recognized as the collective
bargaining representative of the production and maintenance em-
ployees, shipping employees, and garage mechanics at the Employer's
plant in Grand Rapids, Michigan. On January 18, 1951, another con-
tract was executed by the parties covering the driver-salesmen, extra
salesmen, and transport drivers at this installation. On or about
November 23, 1951, the Union submitted a written request to the Em-
ployer, asking that it be recognized as the bargaining representative
for the same classifications of employees at the Employer's plant in
Petoskey, Michigan, as were covered by the Grand Rapids agreements,
and that the terms of those agreements be extended to the Petoskey
employees. On the same date, the Employer informed the Union by
letter that it had agreed to the Union's requests, but stipulated that the
matter of wages of the Petoskey employees be deferred pending agree-
ment of the parties thereon. The terms of the Employer's letter were
orally accepted by the Union on November 23, but that acceptance was
never reduced to writing and signed. It appears that on December
17, 1951, a grievance affecting a Petoskey employee was processed
under the Grand Rapids' contracts. On January 5, 1952, an oral
agreement was reached with respect to the wages of the production
and maintenance employees, shipping employees, and garage mechan-
ics at Petoskey. About a week later, a similar agreement was reached
with respect to the driver-salesmen and extra salesmen at that plant.
22T260-53-vol. 100--4
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 15, 1952, the Union and the Employer executed two
written agreements . The Union was recognized as the bargaining
representative of the production and maintenance employees, shipping
employees, and garage mechanics at both the Grand Rapids and Pe-
toskey plants in one of the documents, and as representative of the
driver-salesmen and extra salesmen at both installations in the other.
In addition, the contracts embodied the oral agreements with respect
to wages reached earlier . On February 13, 1952, the Petitioner noti-
fied the Employer of its intention to file the instant petition. Similar
notification was communicated to a representative of the Union on
February 14, 1952. The petition was filed on February 15, 1952.
The Board has consistently held that an oral agreement cannot op-
erate as a bar to a petition for decertification 2 Accordingly, we find
that, as the agreement of November 23,1952, was not reduced to writing
and signed prior to the filing of the instant petition, that agreement
does not bar this proceeding.' We further find that, as the claim
herein antedated the agreements and was followed within less than
10 days by the petition, the agreements executed on the same date as
the petition was filed do not operate as a bar.4
4. The appropriate unit :
The Petitioner seeks an election to decertify a unit of all production
and maintenance employees, shipping employees, garage mechanics,
driver-salesmen , and extra salesmen, at the Employer's bakery in Pe-
toskey, Michigan, and it four sales distribution stations in Cheboygan,
Rogers City, Traverse City, and the "Upper Penninsula," Michigan.
The Union contends that the appropriate unit should include similar
classifications of employees at the Employer's bakery in Grand Rapids,
Michigan, and its five sales distribution stations at Cadillac, Manistee,
Muskegon, Ludington, and Kalamazoo , Michigan, in addition to the
employees requested by the Petitioner. The Employer takes no po-
sition with respect to the unit contentions e
The Employer maintains bakery plants at Grand Rapids and
Petoskey, Michigan,s where its bakery products are produced,
wrapped, and sold. In addition, these bakeries ship baked goods to
their respective sales distribution stations where their products are
retailed locally by driver- salesmen.
4 Weyerhaeuser Timber Company, 93 NLRB 842; Goodyear Tire and Rubber Company,
78 NLRB 838 See also Monark Silver King , Inc., 94 NLRB 295; Alpert & Alpert, 92
NLRB 806.
8 Weyerhaeuser Timber Company , supra. The Union contends in its brief that its oral
acceptance of this agreement satisfies the Michigan statute of frauds. Michigan law is
not binding on the Board. Cf. Reade Manufacturing Company, Inc, 100 NLRB 87.
4 Alpert c6 Alpert, supra . Cf. The Carborundum Company, 78 NLRB 91.
"All parties agree that , in the event the Board finds the unit requested by the Union
inappropriate , the unit at Petoskey should include both the employees in Petosky as well
as those at its four sales distribution stations.
. 6 The Employer also operates bakeries at Jackson and Bay City , Michigan , which are
currently represented by other labor organizations and are not involved in the instant
proceeding.
MICHIGAN BAKERIES, INC. 661
Substantially the same working rules, vacation benefits, and classi-
fications of employees prevail at both plants, which are under the same
central management and have a common labor relations director. A
single seniority list for both plants is maintained. Payroll and other
records for both installations are maintained in Grand Rapids, all
the clerical personnel are employed there, and all supplies for the
Petoskey plant are ordered through Grand Rapids. While these
factors tend to militate in favor of a unit of employees at both plants,
they are not so compelling as to require our holding that no other unit
is appropriate, for there are other factors which justify a single'plant
unit at Petoskey. Thus, the Petoskey plant is located some 187 miles:
from Grand Rapids; the employees at each of these plants are sepa-
rately hired, discharged, and supervised; there is relatively no inter-
change among these employees; the employees at Grand Rapids receive
a comparatively higher rate of pay and work longer hours than those
at Petoskey; the machinery at Grand Rapids differs from that at
Petoskey in that it is more automatic; and the volume of production
at the two plants differs markedly. In view of the foregoing cir-
cumstances, the fact that other installations at lesser distances from
Grand Rapids are similarly related to Grand Rapids but are sepa-
rately represented for bargaining purposes, and the brief history of
collective bargaining in a larger unit, we find that a unit of all pro-
duction and maintenance employees, shipping employees, garage me-
chanics, driver-salesmen, and extra salesmen at the Petoskey plant and
its four surrounding sales distribution stations is appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act .7
There remains for consideration the question of the unit placement
of certain individuals. The Union would include in the unit a garage
foreman, a plant foreman, and a maintenance engineer. The Peti-
tioner contends that the garage and plant foremen should be excluded
on the ground that they are supervisors within the meaning of the
Act, but takes no position with respect to the maintenance engineer.
The garage foreman, whose duties involve the maintenance and re-
pair of the Employer's trucks, spends approximately 40 percent of
his time responsibly directing the work of two mechanics in the ga-
rage. He is paid at a higher rate than the other mechanics, and he
possesses authority to recommend effectively the hiring, discharging,
and disciplining of these mechanics. In view of the foregoing, we
find that the garage foreman is a supervisor within the meaning of
the Act, and we shall exclude him from the unit."
T Charles N Ingram and Mary C Ingram, ddb/ a Charles Ingram Lumber Company, 100
NLRB 440; Telechron, Inc, 90 NLRB 931.
8 See Economy Shade Company, 91 NLRB 1552.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The plant foreman is in complete charge of all production activities
at the Petoskey plant. He is possessed of the authority to recommend
effectively the hiring, discharging, and disciplining of the production
employees, receives a higher rate of, pay than these employees, and
spends approximately 40 percent of his time responsibly directing
the work of the production workers. Under all the circumstances, we
find that the plant foreman is a supervisor and shall exclude him.9
The maintenance engineer spends all his time maintaining and
repairing the production machinery in the Petoskey plant. He has
no authority to hire, discharge, or discipline the maintenance em-
ployees, nor can he effectively recommend such action. Accordingly,
we find that the maintenance engineer is not a supervisor and we shall
therefore include him in the unit.
We find that all production and maintenance employees, shipping
employees, garage mechanics, driver-salesmen, and extra salesmen at
the Employer's baking plant in Petoskey, Michigan, and the four
surrounding sales distribution stations at Cheboygan, Rogers City,
Traverse City, and the "Upper Penninsula," in Michigan, excluding
the garage foreman, the plant foreman, all office and clerical em-
ployees, guards, professional employees, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
5. Determination of representatives:
The Union contends, contrary to the Petitioner, that approximately
20 employees designated by the Employer as temporary employees are
ineligible to vote. The Employer takes no position with respect to
their eligibility.
• The evidence discloses that during the period of June 15 to Sep-
tember 15, which is the seasonal peak at the Petoskey plant, the Em-
ployer hires approximately 20 additional employees who work full
time during that period. These employees perform the same duties
as the regular employees, work the same. hours, and have the same
supervision. They are also paid wages comparable to those received
by the regular employees, and like the regular employees, receive the
same benefits after 30 days of employment. Approximately 50 percent
of these employees return to work for the Employer each year. Under
all the circumstances, we find that the temporary employees have a
substantial interest in the employment conditions at the Employer's
Petoskey plant and are, therefore, eligible to vote 10
The Employer also employs approximately four part-time em-
ployees during the June 15 to September 15 season. These employees
work between 2 and 3 hours a day for about 3 days a week. Approxi-
11 Metz Baking Company, 92 NLRB 108.
10 Puerto Rico Cement Corporation , 97 NLRB 382 ; The Welch Grape Juice Company,
96 NLRB 214.
CRESCENT 'INK AND COLOR COMPANY OF PENNSYLVANIA 663
mately 50 percent returns to work each year. The Union contends
that these employees are ineligible to vote. The Petitioner and the
Employer take a neutral position. In view of the limited nature of
their employment, we find that these part-time employees are ineligi-
ble to vote in the election directed herein."
[Text of Direction of Election omitted from publication in this
volume.]
11 Cf. 8 cf L Co. of Pipeatone , 90 NLRB 1418.
CRESCENT INK AND COLOR COMPANY OF PENNSYLVANIA and OIL
WORKERS' INTERNATIONAL UNION, CIO, PETITIONER and INTER-
NATIONAL PRINTING PRESSMEN AND ASSISTANTS ' UNION OF NORTH
AMERICA, AFL. Case No. 4-RC-1 1986. August 18,1962
Supplemental Decision and Certification of Representatives
On December 7, 1951, pursuant to a Decision and Direction of
Election issued by the Board on November 16, 1951,1 an election by
secret ballot was conducted under the direction and supervision of
the Regional Director for the Fourth Region. At the conclusion
of the election, a tally of ballots was furnished the parties by the
Regional Director. The tally shows that there were approximately
63 eligible voters, and that 62 votes were cast, of which 31 votes were
for the Petitioner, 28 votes were for the Intervenor, 1 vote was cast
against any labor organization, and 2 ballots were challenged. No
objections to the conduct of the election were filed by any of the
parties.
Because the challenged ballots were sufficient in number to affect
the results of the election, the Regional Director, in accordance with
the Board's Rules and Regulations, conducted an investigation, and
thereafter on January 23, 1952, issued and served upon the parties
his report on challenges, finding that one Eli Garcia was a supervisor,
and recommended that the challenge to his ballot be sustained. The
other challenged ballot was cast by Harry V. Duffy, who the Re-
gional Director found was a salesman and not a production worker.
He made no recommendation as to Duffy's ballot. On February 1,
1952, the Intervenor filed exceptions to the Regional Director's report.
On March 20, 1952, the Board, after having duly considered the
matter, decided there was insufficient evidence 2 in the record on which
1 Not reported in printed volumes of Board decisions.
2 At the original hearing , all parties stipulated that the head aniline man was a working
foreman and therefore should be included in the unit . Because of this stipulation no
evidence was presented as to Garcia 's duties.
100 NLRB No. 108.