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SILVERCUP BAKERS, INC. v. STRAUSS

September 15, 1965

Silvercup Bakers, Inc., Plaintiff
v.
John Strauss, as President, or Robert J. Sullivan, as Secretary-Treasurer of Bakery Drivers Union Local 802, International Brotherhood of Teamsters, Defendant


Bartels, D.J.


The opinion of the court was delivered by: BARTELS

BARTELS, D.J..

This is an action by a corporate employer under Section 301(a) of the Labor-Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C.A. ยง 185(a), to compel arbitration by a Union pursuant to a collective bargaining agreement.

 Plaintiff, Silvercup Bakers, Inc. ("Corporation") is engaged in the manufacture of bread, rolls and other baked goods for sale and distribution to various retail outlets and employs throughout its over-all operations approximately 650 employees, including route salesmen. The function of the route salesmen, who are employed on a salary plus commission basis, is to service the retail stores and other outlets on their route by keeping them supplied with bakery products according to need, returning unsold goods, and seeking new outlets for the Corporation's products. Deliveries to customers were originally made by the Corporation's salesmen 6 days a week. In 1951 the employees' work week was reduced to a 5-day week, which necessitated a change in the Corporation's operating procedure. It then became necessary in order to cover 6 operating days, for the Corporation to hire additional drivers who are known in the trade as "swingmen" because they swing from one day to another to make deliveries to customers in substitution for the regular route salesmen on the latter's day off, resulting from a reduction in the work week. The days thus released from the 6-day work week by the substitution of the swingmen, are distributed among the route salesmen on the basis of seniority.

 On May 1, 1961, the Corporation entered into a collective bargaining agreement with the defendant-Union covering approximately 350 of its employees, consisting of 260 route salesmen, 55 swingmen, 25 route riders and 10 trailer drivers. Article 3 of this agreement provides:

 
"The work week for all employees covered by this Agreement shall consist of five (5) days. No employee shall be required or compelled to work the sixth (6th) day except in an emergency. If an employee is called to work on the sixth (6th) day, he shall receive time and one half (1 1/2) of the prevailing Swingman's daily basic rate of pay in addition to his regular weekly salary or salary and commission."

 Article 19 of the agreement provides:

 
"(a) There shall be arbitration for all disputes which may arise between the parties hereto, except that the arbitrator shall have no power to alter, amend, revoke or suspend any of the provisions of this Agreement. (Emphasis supplied)
 
(b) The matter in dispute shall be submitted to an arbitrator who shall be appointed by the New York State Board of Mediation at the request of either party. The decision of such arbitrator shall be final and binding upon the parties hereto.
 
(c) Arbitration shall commence no later than two (2) weeks after the dispute arises."

 Article 24 of the agreement provides:

 
"The Union and Employer recognize the changes that have occurred in retail food stores, i.e., the rapid disappearance of small individual stores and their replacement at an accelerated rate by the large corporate and cooperative food chains, and accordingly it may be necessary to recognize the appropriateness of considering changes in delivery, merchandising and compensation methods.
 
In view of this, the Employer may at any time request a meeting with the Union, for the purpose of negotiating and mutually agreeing on different commission payments or other methods of compensation or delivery methods which may be desirable under such changed conditions.
 
In the event of such request the parties will meet promptly for the purposes outlined above.
 
In the event the parties are unable to agree the dispute shall not be subject to the Arbitration ...

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