Alta-Dena Dairy

National Labor Relations Board - Board Decisions

Feb 3, 1965

150 N.L.R.B. 1537 (N.L.R.B. 1965)

ALTA-DENA DAIRY 1537
(b) Notify said Regional Director , in writing , within 20 days from the date of
this Decision and Recommended Order, what steps the Respondent has taken to
comply herewith.2
It is further recommended that the complaint be dismissed as to all allegations not
specifically found herein to have been in violation of the Act.
2In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days
from the date ' of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain , or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the Act by granting them, or threatening
to withdraw, economic benefits, or by changing the terms or conditions of their
employment, provided, however, that nothing in these recommendations requires
us to vary or abandon any economic benefit or any term or condition of employ-
ment which has heretofore been established.
WE WILL NOT in any like or related manner interfere with , restrain, or coerce
our employees in the exercise of their right to self-organization , to form, join,
or assist Retail Store Employees Union, Local 444, Retail Clerks International
Association, AFL-CIO, or any other labor organization , to bargain collectively
through representatives of their own choosing , to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion , or to refrain from any or all such activities , except to the extent that such
right is affected by^the provisos in Section 8(a) (3) of the Act.
U-TELL CORPORATION,
Employe,.
i •
Dated------------------- By-------------------------------------------
(Repieseiitafive) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or com-
pliance with its provisions.
Alta-Dena Dairy and Dairy Employees , Plant & Clerical, Local
93, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, Petitioner . Case No. 21-RC-
8882. February 3, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9-(c) of the National
Labor Relations Act, a hearing was held before a Hearing Officer
of the National Labor Relations Board. The Hearing Officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed: Thereafter, a brief was filed by the Employer
herein.
150 NLRB No. 142.
1538 " DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the National
Labor Relations Act, the Board has delegated its powers in con-
nection ' with this case to a three-member panel [Members Fanning,
Brown, and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce -within the meaning
of the Act and it will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The labor organization involved claims to. represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of certain employees of the Employer within' the meaning
of Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The Petitioner seeks to represent all of the employees of the
Employer except those employed in the cash-and-carry stores, the
ice cream plant, and in the classifications which the Employer
would exclude if an election were directed.
The Employer, a partnership owned by three brothers, is engaged
in producing, processing, and selling milk and related dairy
products in the Los Angeles area. In the conduct of this business,
the Employer operates three dairy farms-one at the City of
Industry (herein called Industry), one at Monrovia, and one at
Chino. At the Industry and Monrovia sites, the Employer has
milk processing plants where the Employer's own milk is processed
and bottled. In addition to these two plants, the Employer operates
a small ice cream making plant in Los Angeles, a filling or service
station at Hawthorne which services and maintains the Employer's
trucks in that area and also sells gas and oil to the public, and 12
cash-and-carry stores where the Employer's products are sold
directly to the public. It appears that the Employer also maintains
docks at Hawthorne and Culver City where certain of the Em-
ployer's retail drivers pick up milk and other products for delivery
to customers.
As indicated, Chino is a pure dairy farm operation. The milk
produced here is transported to Industry or Monrovia for proc-
essing at one of the plants. At Industry, which seems to be the
largest of the operations, the Employer employs 1 10 to 12 milk
plant processing employees, 6 or 7 maintenance employees who
service all of the Employer's machinery-farm equipment, plant
machinery, and trucks, about 30 retail route drivers, 7 wholesale
route drivers, and 3 vending employees. The processing of the
1 Milkers and farmhands are employed at all three farms. These individuals, however,
the parties have agreed to exclude and are not in issue here.
ALTA-DENA DAIRY 1539
milk is, of course , done by plant employees . The processed milk
and other products are loaded on the trucks by the drivers them-
selves, who make their deliveries to homes in the case of retail
drivers; to schools, cafes , rest homes , and a few grocery stores
in the case of wholesale drivers; and to vending machines located
in schools and factories in the case of vending employees . Drivers,
either retail or wholesale , also make the deliveries to the Haw-
thorne and Culver City docks for pickup by other drivers and,
except as noted below , deliveries to the Employer 's cash-and-carry
stores.
Monrovia 's operation is much like that at Industry except that
the only drivers employed there are retail drivers-35 ' in number.
Further, no maintenance employees ( mechanics ) are employed here,
such jobs being done by Industry maintenance employees when
necessary. Monrovia has five or six plant employees.
The number of drivers working out of the Culver City dock is
eight, and some six or seven work out of the Hawthorne dock.
There are four employees at the Hawthorne service station, three
of whom are mechanics and one who sells gas.
As to the 12 cash-and -carry stores , 2 are located at the Industry
site, 1 at Monrovia , 1 in Hawthorne-next to the service station, 1
in Los Angeles-at the ice cream plant , 1 in Culver City, 1 in Pasa-
dena, 1 in Arcadia , 2 in West Covina , 1 in South San Gabriel, and
fin Pico Rivera. Between 10 and 15 cash-and -carry employees, in-
cluding those working part time , are employed at Industry ; approx-
imately 10 at Monrovia ; and the other 9 outlets . have 4 or 5 each.
It appears from the record that the hours worked by the different
classifications of employees vary, as do the methods of compensation.
As to the latter , it appears that some ( production , vending, and
probably maintenance employees ) are salaried , and that others (retail
and wholesale drivers ) are paid on a commission basis with a guar-
anteed salary. The immediate supervision of the different employee
groups is not clearly shown by the record, but it does appear that
each of the various operations is overseen by one of the partner
brothers or a brother of the partners ( there are six or seven brothers
in this operation). As to some of the groups , however, immediate
supervision is established in the record . Each of the three groups
of retail route drivers-Industry , Monrovia , and the Los Angeles
area-has its own 'immediate supervisor, and the maintenance em-
ployees, those at Industry and at the service station , have a common
immediate supervisor . As to interchange , the record shows that
there have been some transfers and these appear .to have been on a
permanent basis, Thus, in the past year , two cash-and -carry em-
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees transferred to retail driving routes and two drivers went'to
cash-and-carry stores. There is also an indication in the record that
a plant or maintenance employee may drive a truck as a ,relief man,
but this happens only rarely. Some conditions or terms of employ-
ment apply uniformly to all employees. Thus, the record shows
that: all personnel records are kept at Industry; hiring is done
chiefly by two of the partners; these same two partners have the
final word on discharges; all employees are furnished uniforms with-
out charge; and for all full-time employees who have worked for a
fixed period of time the Employer has a common pension program,
health and welfare program, and sick leave and vacation plans.
The Employer's basic position is that all employees are "agricul-
tural" employees, and that the petition should be dismissed. The
Employer's alternative position is that the only appropriate unit is
one including all employees except milkers, farmhands, clericals, and
the usual statutory exclusions.
The Petitioner's primary unit request is, as noted, one including all
employees except those employed in the cash-and-carry stores and
the ice cream plant, and those in the classifications whom the-Em-
ployer would exclude?
Contrary to the contention of the Employer, we do not believe that
all of its employees are agricultural laborers within the meaning of
Section 3(f) of the Fair Labor Standards Act. While the Chino
farm is limited to milk production with no processing of the milk,
the Monrovia and Industry farms have milk processing equipment,
including such dairy equipment as short time pasteurizer, butter
churn, holding tanks, bottle washer and filler, and cooling equipment.
It is clear that the Employer not only has a substantial investment
in processing, bottling, and distributing equipment and buildings in
which the Employer conducts an extensive commercial operation, but
that in its operation the milk is changed from its raw or natural state
to a product that is marketed as pasteurized milk, butter, cottage
cheese, ice cream, etc.; increased market value is added to.-the raw
milk as a result of this processing by the plant employees.- , We find
this processing of milk into marketable products to .be a separate
commercial operation, and the employees performing and.maintain-
ing this operation are not agricultural laborers within the meaning
of Section 3(f) of the Fair Labor Standards Act. The Employer's
products are delivered by the truckdrivers to consumers or placed in
the cash-and-carry stores for sale to the public by the employees at
the particular store. Here again the service that is rendered by the
9 The Petitioner made alternative unit requests, but, in view of our finding herein, it
is unnecessary to discuss these requests.
ALTA-DENA DAIRY 1541
truckdrivers and the cash-and-carry store employees is of a nature
which does not qualify those employees as agricultural laborers
within the meaning of Section 3(f) of the Fair Labor Standards
Act. It is equally clear that the mechanics who maintain the equip-
ment and the gas station attendant are not agricultural laborers.
Accordingly, we find the foregoing employees to be employees within
the meaning of Section 2(3) of the National Labor Relations Act,
as amended.
As to the unit, we have concluded that, notwithstanding certain
differences in their terms and conditions of employment, the employ-
ees sought by the Petitioner constitute basically a plantwide unit
which is presumptively appropriate. We find 'also that the drivers
have a sufficient community of interest to warrant their inclusion
in such a unit.-
As noted, the service station employees service the employer's
trucks in the area and sell gas and oil to the public. As they appear
to have interests similar to the maintenance employees, including a
common immediate supervisor, we shall include them in the unit as
requested:by Petitioner.
With regard to the cash-and-carry store employees whom, in agree-
ment with the Petitioner, we shall exclude, we find that the very
nature of their work gives them interests different from those of
plant and driver employees .3 As to the ice cream plant employees,
we find that their geographical separation from other unit employees
and their proximity to the excluded cash-and-carry employees work-
ing at the store located at the plant, justify their exclusion as re-
quested by Petitioner.4
We find that the following employees constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Sec-
tion 9(b) of the Act: All production and maintenance employees,
including wholesale, retail, and vending machine drivers and service
station employees, employed at the Employer's facilities at Monrovia,
City of Industry, and Hawthorne, California, excluding cash-and-
carry store employees, ice cream plant employees, milkers and farm-
hands, office clerical employees, guards, professional, employees, and
supervisors as defined in the Act.'
[Text of Direction of Election omitted from publication.]
S See E. H. Koester Bakery Co., Inc., 136 NLRB 1006 ; Gunzenhauser Bakery, Inc.,
137 NLRB 1613
* Member Jenkins would include the ice cream plant employees in the unit In his
view, no rational basis exists for excluding these production employees from the unit
which includes other production employees. He would point out that while these em-
ployees may be geographically separated from the milk processing plants, included in
the unit are two groups of production employees which are likewise geographically
separated from each other.