Crowley's Milk Co., Inc.

National Labor Relations Board - Board Decisions

May 12, 1942

40 N.L.R.B. 1280 (N.L.R.B. 1942)

In the Matter of CROWLEY'S MILK Co., INC., and UNrrED DAIRY
WORKERS ASSOCIATION
Case No. R-3712-Decided May 12, 1942
Jurisdiction : dairy industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to recognize either of competing unions until certified by the Board ;
seasonal employees held ineligible to vote; election necessary.
Unit Appropriate for Collective Bargaining : all employees at Company 's Bing-
hamton, New York, plant, including plant employees, maintenance employees,
and transport and retail drivers, but excluding store, office, and supervisory
employees.
Mr. Lloyd C. Anderson, of Binghamton, N. Y., for the Company.
Mr. Charles P. O'Brien and Mr. Samuel H. Pearis, of Binghamton,
N. Y., for the United.
Mr. Franc D: Morris, of Binghamton, N. Y., for the Teamsters.
Mr. Charles E. Moss, of Binghamton, N. Y., for the Operating
Engineers.,
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Dairy Workers Association,
herein called the United, alleging that a question affecting commerce
had arisen concerning, the representation of employees of Crowley's
Milk Co., Inc., Binghamton, New York, herein called the Company,
the National Labor Relations Board provided for an appropriate
hearing upon due notice before Henry J. Kent, Trial Examiner.
Said hearing was held'at Binghamton, New York, on April 7, 1942.
The Company, the United, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers, Local 693, A. F. L., herein
called the Teamsters, and International Union of Operating Engi-
neers, Local 410, herein called the Operating Engineers, appeared,
participated, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce, evidence bear-
40 N. L. R. B., No. 226.
1280
I
CROWLEY'S MILK CEO., INC. ,1281
ing: on the issues. The Trial Examiner's rulings made at the hearing
nre free from prejudicial errors and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Crowley's Milk Co., Inc., is engaged in processing milk and manu-
facturing milk products at Binghamton, New York. The Company
has plants also at Newburgh, New York, and Paterson, New Jersey,
and operates depots at Albany, New York, Allentown, Pennsylvania,
and Springfield, Massachusetts. The Company's plant at Bingham-
ton, New York, is the only plant involved in this proceeding. During
1941 the Company used at its Binghamton, New York, plant, raw
materials valued in excess of 1 million dollars, of which approximately
20 percent represents shipments to the plant from points outside New
York. During the same period the Company finished at the Bing-
hamton plant products valued in excess of 1 million dollars, of which
approximately 32.7 percent was shipped from the plant to points
outside New York. The Company admits that it • is engaged in
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVLOVED
United Dairy Workers Association is an unaffiliated labor organ-
ization, admitting to membership employees of the Company.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men, and Helpers, Local 693, is a labor organization affiliated with
the American Federation of Labor, admitting to membership em-
ployees of the Company.
International Union of Operating Engineers, Local 410, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In October 1941, the Teamsters and the Operating Engineers ne-
gotiated with the Company concerning the plant and maintenance
employees at the Binghamton plant. On or about October 9 the
Company's employees organized the United. In November the United
asked the Company for recognition as bargaining agent of the Com-
pany's employees. The Company refused to bargain with the United'
or any other labor organization until it should be certified by the
Board.
455771-42-voi 40-S1
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A statement prepared by the Regional Director and introduced in
evidence at the hearing indicates that the United and the Teamsters
each represents a substantial number of employees in the unit herein-
after found to be appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IN. THE APPROPRIATE UNIT
The United and the Teamsters agree, and we find, that store, office,
and supervisory employees should be excluded from the bargaining
unit.
The United would include in the bargaining unit the so-called
plant employees, 'the maintenance employees, and the transport and
retail drivers. The Teamsters contends that the plant employees,
excluding the maintenance employees and the transport and retail
drivers, constitute an appropriate bargaining unit. In the alterna-
tive, the Teamsters suggests a unit composed of plant employees and
the transport and retail drivers, excluding maintenance employees.
The Company operates a fluid-milk department and condensery at
its plant. Milk comes to the plant either directly from producers,
who bring it to the plant, or from five milk stations, from which
milk is brought to the plant by the Company's drivers, called trans-
port drivers. All milk received at the plant is weighed, pasteurized,
bottled, or processed by the so-called plant employees. Some milk
is sold as fluid milk and is distributed to the Company's consumers
by retail drivers. The Company employs maintenance employees,
who keep the machines and plant in repair.
Several production processes occupy 2 or 3 hours each day and
dairy processes vary with the seasons. Plant employees go from
one process to another in the` plant. Process and maintenance em-
ployees are freely interchanged. Normally the Company does not
interchange drivers and plant employees, although it may do sa
'The United submitted to the Regional Director 134 membership cards, 100 of which
were dated in November 1941, 20 in January 1942, and 6 in February 1942 The United
also submitted its membership roster and dues record showing an addition of 52 members,
some of which are clerical employees All these cards and the roster bear names, of
employees in February 1942 At the time of the hearing, according to its secretary,
the United had 174 active members, including 84 plant employees, 7 employees in the
gaiage , 12 in maintenance , 25 trauspoit drivers , 44 retail drivers, and 2 employees in
the farm department.
The Teamsters submitted 72 application cards, of which 47 were dated in Septembei
1941, 12 in October , 1 in November, and 12 were undated The record does not indicate
that these cards were checked against any pay roll of the Company
On its December 24, 1941, pay roll the Company listed 198 employees in 'the unit
hereinafter found to be appropriate On April 1 1942, the Company listed 177 such
employees
CROWLEY'S MILK 'CO., INC. 1283
upon occasion. All employees of the Company, including drivers, are
given a course of instruction in the Company's plant operations to
inform them of the various processes, of which the Company con-
tends each employee is an integral part. All employees of the Com-
pany work a 40-hour week at an hourly rate with time and one-half
for overtime, although drivers and plant employees are paid at
different wage rates. -
The Company has never bargained with any labor organization for
its employees at this plant. Other plants in the State similar to the
Company's in operations are organized on an industrial basis. The
Teamsters represents the employees of the Sheffield Company in an
industrial unit of the scope of that for which the United herein
contend S.2
We find that all employees of the Company at its Binghamton, New
York, plant, including plant employees, maintenance employees, and
transport and retail drivers, but excluding store, office, and super-
visory employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section ,9 (b) of the
National Labor Relations Act.3
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot.
The Company and the Teamsters disagree as to the pay-roll period
for determining the eligibility of employees to vote in the election.
The United desires a current pay-roll period, and the Teamsters
desires a pay-roll period preceding November 24, 1941.
At the end of November 1941, the Company discharged from the
several departments of the plant 22 seasonal employees for whom it
had no further work. In normal years such employees would have
been discharged much earlier in the year. On December 27, 1941,
the Teamsters called a strike of the Company's plant employees.
About 49 of a total of 99 plant employees participated in this strike.
Only 1 striking employee applied thereafter for reinstatement. He
was reinstated by the Company. All other striking employees pro-
cured work elsewhere. The Company has hired 61 new plant em-
'At a conference with the Regional Director in January 1942 the Teamsters, with
the consent of the Operating Engineers, agreed with the United that all employees at
the plant , excluding clerical , supervisory , and store employees , constituted an appropriate
bargaining unit . At that meeting the Teamsters and the United were unable to agree
on an eligibility date
'Although the Operating Engineeis submitted evidence to indicate that it represented
four maintenance employees, it made no contention with respect to the appropriate unit
The unit herein found appropriate for bargaining , on the basis of the present record,
is subject to modification upon petition and further evidence that the Company employs.
powerhouse employees who may properly constitute a, separate unit, apart from other
maintenance and plant employees
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees since the strike, and now employs in all, 21 employees
less than it employed on the date of the strike.
The Company's peak season comes in May and June when the
amount of milk received is doubled. The Company employs addi-
tional employees during this time and during the summer. The rec-
ord does not. disclose what percentage of the Company's seasonal
employees returns to work at the plant for the following season. In
its brief the Company states that few employees return from year to
year. Many employees are students who seek work (hiring the summer
months and who do not desire reemployment. We shall exclude
seasonal employees from voting and -shall determine eligibility to
vote by a current pay roll. Since it does not appear that the Oper-
ating Engineers desires to participate in the election, we shall pro-
vide that the United and the Teamsters only appear on the ballot.
Those eligible to vote in the election shall be regular employees
of the Company in the appropriate unit who were employed during
the pay-roll period immediately preceding the date of this Direction
of Election, subject to the limitations and additions set forth therein.
DIRECTION OF ELECTION
By virtue of andand pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Crowley's Milk Co., Inc., Binghamton, New York, an election
by secret ballot shall be conducted as early as possible, but not later
than thirty (30) days fom the date of this Direction, under the direc-
tion and supervision of the Regional Director for the Third Region,
acting in this matter as agent for the National Labor Relations Board,
and subject to Article III, Section 9 (c) of said Rules and Regula-
tions, among the employees of the Company in the unit found appro-
priate in Section IV above, who were employed during the pay-roll
period immediately preceding the date of this Direction of Election,
including employees who did not work (luring such pay-roll period
because they were ill or on vacation or in the active military service
or training of the United States, or temporarily laid off, but exclud-
ing seasonal employees and employees who have since quit or been
discharged for cause, to determine whether they desire to be repre-
sented by United Dairy Workers Association, or by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers,
Local 693, A. F. L., for the purposes of collective bargaining, or by
neither.