AMERICAN BAKERY & CON. WKRS. INT. U. v. Liberty Baking Co.

• Decision Date: 17 June 1965
• Docket Number: Civ. A. No. 65-599.
• Citation: 242 F. Supp. 238
• Parties: AMERICAN BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION, LOCAL UNION NO. 12, AFL-CIO, an unincorporated labor organization, and Local 485 of Bakery Drivers, Plaintiffs, v. LIBERTY BAKING COMPANY, a corporation, and Noramco, Inc., a corporation, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

242 F. Supp. 238

AMERICAN BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION, LOCAL UNION NO. 12, AFL-CIO, an unincorporated labor organization, and Local 485 of Bakery Drivers, Plaintiffs, v. LIBERTY BAKING COMPANY, a corporation, and Noramco, Inc., a corporation, Defendants.

Civ. A. No. 65-599.

United States District Court W. D. Pennsylvania.

June 17, 1965.

Wilner, Wilner & Kuhn, Pittsburgh, Pa., for Local Union No. 12.

Ben Paul Jubilerer, Pittsburgh, Pa., for Local 485 of Bakery Drivers.

Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for defendants.

GOURLEY, Chief Judge.

This is a most involved and intricate labor proceeding that points up the hardships and conflicts faced when the forces of automation, which have rendered the business operation of defendant, Liberty Baking Company, unprofitable in its present state, join with advantages offered by the tax laws to those acquiring sinking business operations to finally submerge a company with life still to be lived

This action was filed by the American Bakery and Confectionery Workers International Union, Local 12, against defendants to enjoin them (1) from removing and discontinuing their operations at the Liberty Baking Company plant at Pittsburgh; (2) from removing any equipment used in the production or distribution of baked goods at said plant in Pittsburgh; and (3) from further violating the contractual rights of plaintiff union and its members. Plaintiff alleges that defendants' proposed course of conduct will violate the Union Recognition, Union Security and Seniority Clauses of the Collective Bargaining Agreement.

The Court granted Bakery Drivers Local 485 the right to intervene as a plaintiff. Intervening plaintiff requested the same relief as original plaintiff, and also requested the Court to order arbitration.

FINDINGS OF FACT

The Court enters the following Findings of Fact:

1. Plaintiff, American Bakery and Confectionery Workers International Union, Local Union No. 12, AFL-CIO, ("Local No. 12"), is an unincorporated labor organization, having its principal office in Pittsburgh, Pennsylvania. It is the collective bargaining representative for the production and maintenance employees of the defendant, Liberty Baking Company of Pittsburgh, Pennsylvania.

2. Bakery Drivers, Local No. 485, ("Local No. 485"), which was permitted to intervene in this proceeding as a plaintiff, is an unincorporated labor organization, having its principal office in Pittsburgh, Pennsylvania. It is the collective bargaining representative for the wholesale and retail driver-salesmen employed by Liberty Baking Company of Pittsburgh, Pennsylvania.

3. Defendant, Liberty Baking Company, ("Liberty"), is engaged in the wholesale and retail production and distribution of bread, rolls, and sweet goods — cakes, pies and cookies — under the trade name and brand "Buttercup". Liberty maintains its plant and offices at 6006-18 Houston Street, Pittsburgh, Pennsylvania. It is engaged in interstate commerce within the meaning of the Labor Management Relations Act of 1947, as amended, 29 U.S.C.A. § 185.

4. Defendant, Noramco, Inc., ("Noramco"), is a Wisconsin corporation with its principal office in Queens Village, Long Island, New York. On or about May 14, 1965, Noramco acquired 85% of the outstanding stock of Liberty.

5. Defendant, Noramco, also owns a controlling interest in Goddard Baking Company, which is located in Chester, West Virginia; in Dugan Brothers Bakery, which is located in Queens Village, Long Island, New York; in Fastnachts Company, which is located in Allentown, Pennsylvania; and in Duquesne Baking Company of Pittsburgh, Pennsylvania, a defunct company which is now in liquidation.

6. On or about December 18, 1963, plaintiff Local No. 12, and defendant Liberty, entered into a Collective Bargaining Agreement covering Liberty's production and maintenance employees which will expire on August 13, 1965. This Collective Bargaining Agreement contains in Article 6 thereof a grievance arbitration procedure which provides as follows:

It is agreed that should any charge of discrimination or any grievance arise over a misunderstanding of the terms of this Agreement there shall be no strikes or stoppage of work or lockout. Any such controversy shall be settled in accordance with the following procedure:

(a) The aggrieved employee, the Union Steward and a Representative of the Company shall first make an honest effort to reach an amicable agreement or adjustment of the grievance. If a satisfactory solution is not reached, then

(b) The grievance shall be reduced to writing and signed by the aggrieved employee or the Steward.

(c) The Union Business Representative or the Steward will take the matter up with the Operating Superintendent. If no satisfactory agreement is reached within forty-eight (48) hours, then

(d) The Union Business Representative and the Shop Steward with or without the aggrieved employee will take the grievance up with the proper Company official. If no satisfactory agreement is reached, then

(e) The matter shall be submitted to an Arbitrator as provided herein, Request for Arbitration must be submitted in writing within five (5) days from the date of the last meeting between the Union and the Company.

(f) The Arbitrator shall be a person designated by mutual consent of the parties. In the event that the Company and the Union are unable to agree upon an Arbitrator within five (5) days after the matter has been referred to Arbitration, either party may apply to the Federal Mediation and Conciliation Service for a panel of seven (7) Arbitrators, and each party alternately shall strike three (3) names from the panel so obtained, and the name remaining shall be the Arbitrator designated to hear and determine the grievance.

The Arbitrator shall have no power to add to, detract from, or in any way alter the provisions of this Agreement.

The award of the Arbitrator shall be final and binding on both parties hereto. The cost of arbitration shall be shared equally by the Company and the Union.

7. The Collective Bargaining Agreement contains, in Article 1 thereof, a Union Recognition Clause which provides as follows:

Liberty Baking Company recognizes the Union as the exclusive representative of all its production and maintenance employees, covered by the classifications embodied in this agreement, for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, excluding craft maintenance, garage employees, car washers, office employees, sales drivers, truck drivers, engineers, guards, professional employees, and supervisors as defined in the act as amended.

(b) No Supervisor, Superintendent or Foreman will be a member of the Union.

(c) No Supervisor, Superintendent or Foreman will perform the normal work of any employee covered by this agreement except for the purpose of instructions or experimental work. The Union agrees that this provision shall not apply in cases of power failures, floods or unavoidable breakdowns.

8. The Collective Bargaining Agreement contains, in Article 2 thereof, a Union Security Clause which provides as follows:

(a) It shall be a condition of employment that all employees of the Employer covered by this agreement who are members of the Union in good standing on the execution date of this agreement shall remain members in good standing and those who are not members on the execution date of this agreement, shall on the 30th day following said execution date become and remain members in good standing in the Union.

(b) It shall also be a condition of employment that all employees covered by this agreement and hired on or after said execution date shall on the 30th day following the beginning of such employment become and remain members in good standing in the Union.

(c) The Employer agrees to furnish the Union with a list of the names of the employees hired and/or separated once each week, accompanied with the reason for his/her termination.

9. The Collective Bargaining Agreement contains a Seniority Clause in Article 10 thereof, which provides as follows:

1. Subject to the ability of the employee to do the available work, promotions, demotions, layoff, recall and vacancies shall be handled on a seniority basis. The senior employee shall be given a trial period of up to fifteen (15) days to prove his ability.

2. A job is to be considered open to bid only after an employee covered under this contract has definitely left the job through layoff, discharge or resignation, transfer to another shift or department, or transfer to another job by bid or a new job is created.

3. Any job open to bid in accordance with paragraph 2 above shall be posted on the main bulletin board for a period of 72 hours. If no employee bids within the 72 hour period they shall be considered as having waived their right to bid for that job and then the Employer will recall the laid off employee in accordance with their seniority for the unfilled job.

(a) Jobs open for bid shall be first posted in the department.

(b) After all bids are exhausted within the department, then the unfilled job shall be posted on the main plant bulletin board for bidding on a plant wide seniority basis.

(c) Any successful bidder will carry with him his total plant seniority.

4. It is understood that in case of layoffs in excess of seven consecutive calendar days, employees subject to layoff, who after having been considered on a departmental basis are unable to qualify for continued employment in their own department, shall be given the opportunity for continued employment on a plant wide basis. Such employees may displace any employee in the plant with less seniority. It is further understood and agreed that layoffs or transfers continuing for more than seven consecutive calendar days shall subject such jobs to the bidding procedure, for reason that upon restoration such jobs shall be considered as vacancies.

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