Central Dairy Products Co.

National Labor Relations Board - Board Decisions

Nov 23, 1955

114 N.L.R.B. 1189 (N.L.R.B. 1955)

CENTRAL DAIRY' PRODUCTS CO. 1189
Central Dairy Products Co., Steffen's Branch 1 and United Pack-
inghouse Workers of America , CIO, Petitioner . Case No. 16-
RC-1617. November 23,1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John F. Funke, hearing
officer. The hearing officer's'rulings made at the hearing are free from
prejudicial error and are hereby affirmed for the reasons indicated
below.
Upon the entire record in this case, we find :
The Petitioner seeks to represent a unit of all production and
maintenance employees at the Employer's manufacturing and proc-
essing plant in Oklahoma City, Oklahoma. The Employer moved at
the hearing to dismiss the petition on the ground that its operations
are local in character and do not meet any of the Board's minimum
standards for the assertion of jurisdiction. The Petitioner contended
at the hearing that the hearing officer improperly rejected competent
evidence showing that the Employer's operations do meet the Board's
standards and therefore an election should be directed.
The Employer, a Delaware corporation, is engaged in the manu-
facture, processing, sale, and distribution of ice cream, milk, and milk
products, and the operation of a cold storage facility. All of the
Employer's operations and sales are within the State of Oklahoma.
Its sales are valued at about $3,000,000 annually. The Employer con-
tends and introduced evidence to show that its direct inflow is con-
siderably less, than $500,000. The Petitioner contends, on the basis
of offers of proof rejected by the hearing officer, that the Employer's
direct inflow exceeds $900,000.
Since reorganization in 1936, the Employer has been managed by
Southwest Management Company, hereafter called Management.
Management was created for the sole purpose of administering Cen-
tral and two affiliated companies which also were reorganized at that
time. The two other companies are Southwest Ice and Dairy Prod-
ucts, a manufacturer and distributor of ice, ice cream, and other dairy
items, hereafter called Products, and Southwest Service Company,
a manufacturer and distributor of ice, hereafter called Service. The
corporate officers of the Employer, Management, Products, and
Service are identical. Management's stock is owned 35 percent by
the Employer, 50 percent by Products, and 15 percent by Service.
However, the Employer, Products, and Service themselves now are
separately owned, with overlapping in common stockholdings of less
I The name of the Employer appears in the caption as amended at the hearing.
114 NLRB No. 182.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than 5 percent. The annual gross volume of business of Products and
Service, all of which is intrastate, is valued at about $1,249,000 and
$250,000 each. In addition to various Oklahoma operations, Products
and Service operate five ice plants in Kansas, each of which has only
intrastate sales. The record is devoid of evidence which would show
centralized control of labor relations among these corporations with
respect to the h i ring and'discharging of employees, setting wage rates,
and establishment of vacations and other employment benefits.
Similarly, there is no indication of interchange of employees among
the corporations. Under these circumstances, the facts that the 4
corporations have the same officers and that 3 of the corporations are
managed by a fourth are not sufficient evidence to establish that the 4
corporations constitute a single employer within the meaning of the
Act or that the Employer is a part of a single integrated enterprise?
On the foregoing facts, the Employer's operations also fall short
of the Board's jurisdictional standards when considered alone .3 The
Petitioner's offers to prove that the Employer's separate direct inflow
exceeded $500,000 were properly rejected by the hearing officer. This
proffered evidence consisted of tallies based on spot checks over short
periods. The Petitioner's members counted the Employer's use of cer-
tain goods in daily production. Also, they recorded the Employer's
receipt of shipments of certain goods from out of State. Tallies for
the short periods were projected over the whole year and then con-
verted from figures showing numbers of items, such as so many thou-
sand quart cartons, to dollar values on the basis of prices quoted to
the union by a local wholesaler.
The Employer objected to admission of this evidence inter alia on
the ground that the short periods used were not shown to be typical
of the whole year, that some of the employees involved in tallying
were not available as witnesses and hence their contributions were
hearsay, and that prices used for conversion of amounts of goods to
dollar values were not shown to be the prices the Employer in fact
paid for such goods. We agree that this evidence is too vague to
have probative value, particularly in face of the specific evidence
from its own records offered by the Employer. Therefore we have
concluded that the hearing officer's rejections of the Petitioner's offers
of proof were not prejudicial error and we have affirmed those rulings.
On'these facts and the record as a whole we find that the Board's
jurisdictional standards have not been met. Accordingly, as we con-
clude that it will not effectuate the policies of the Act to assert juris-
diction over the Employer in this case, we shall dismiss the petition.
[The Board dismissed the petition.]
9 Ork2n "The Rat Ian," Incorporated, 112 NLRB 762; Dan Dee Central Ohio Corpora-
tion , 106 NLRB 1303.
Jonesboro Grain Drying Cooperative, 110 NLRB 481.
CESSNA AIRCRAFT COMPANY 1191
CHAIRMAN LEEDOM, dissenting :
The evidence offered by the Petitioner is, in my opinion, material,
relevant, and for the most part competent, and should have been re-
ceived for whatever probative value it might have in determining the
'extent of the Employer's interstate purchases. I also believe that the
hearing officer erred when he rejected the offer of Employer's counsel
to produce at the hearing the full record of the Employer's monthly
purchases during the last fiscal year. Accordingly, I would remand
for the purpose of receiving the additional evidence offered by both
parties on interstate purchases and also any other available evidence
on the relationship of this Employer to the other three corporations
as respects employee interchange, labor and personnel policy, all of
which bear importantly on the jurisdictional issue.
MEMBER MuRDOCK took no part in the consideration of the above
Decision and Order.
(Cessna Aircraft Company and National Independent Union
Council , United Tool & Die Makers of America, Local No. 252,
Petitioner. Case No. 17-RC-2041. November 23, 1955
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 Harry Irwig, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
,dicial'error-and are heteby^affirmed:'
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 labor organizations involved claim to represent certain em-
ployees of the Employer 2
3. The petitioner seeks to represent the tool and die department
employees at the Employer's Pawnee and Prospect plants at Wichita,
' At the hearing, the hearing officer refused to allow Local Lodge No. 744 of District
Lodge No. 70, International Association of Machinists, AFL (which was permitted to inter-
vene on the basis of its contractual interest ), to litigate the matter of the Petitioner's
compliance with filing requirements of the Act . In view of the Board 's well -settled rule
that compliance is a matter for the Board ' s administrative determination and is not
litigable in a representation hearing, the hearing officer's ruling was proper. However,
the Board will permit parties to a representation proceeding to cause to be instituted an
administrative investigation of those compliance matters which the Board may properly
decide in a collateral proceeding . Coca - Cola Bottling Company of Louisville , Inc., 108
NLRB 490 The Board is administratively satisfied that at all times pertinent herein the
Petitioner has been and now is in compliance with the filing requirements of Section
9 (f), (g), and (h) of the Act.
s The record discloses and we find that the Petitioner is a labor organization within
the meaning of the Act Knor Corporation, 104 NLRB 789.
114 NLRB No. 181.