Fairmont Creamery Co.

National Labor Relations Board - Board Decisions

Jul 29, 1942

42 N.L.R.B. 1041 (N.L.R.B. 1942)

In the Matter of FAIRMONT CREAMERY COMPANY and UNITED PACKING-
HOUSE WORKERS LOCAL 73-A, PACKING HOUSE ORGANIZING COMMITTEE
(CIO)
Case No R-4008-Decided July 29, 1942
Jurisdiction : poultry and dairy products producing and distributing industry
Investigation and Certification of Representatives : existence of question ie-
fusal to accord petitioner recognition until certified by the Boaid, election
necessary
Unit . Appropriate for Collective Bargaining : production and maintenance em-
ployees at one of Company's plants, excluding truck drivers, office workers,
and supervisory employees
Mr Charles H Flamsburg, of Lincoln, Nebr, for the Company
Mr Lee 'Miller, of Fargo, N Dak, and Mr Herbert Vogt, of Chi-
cago, 111, for the Union
Miss Melvern R Krelow, of counsel to the Board
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by the United Packinghouse Workers Local
73-A, Packing House Organizing Committee (CIO), herein called
the Union, alleging that a question affecting commerce had arisen
concerning the representation of employees of Fairmont Creamery
Company, Moorehead, Minnesota, herein called the Company, the
National Labor, Relations Board provided for an appropriate, hearing
upon due notice before Harry Brownstein, Trial Examiner Said
hearing was held at Moorehead, Minnesota, on July 2, 1942 The
Company and the Union appeared and participated' All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed
On July 11, 1942, the Company filed' a brief which the Board has
considered. '
' General Diners, Helpers and Inside Workers, A F of L , hereinafter called the
Teamsters, although served with notice, did not appear
42 N L R B, No 192
1041
472814-42-vol 42-66
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Fairmont Creamery Company, a Delaware corporation, having its
principal place of business at Omaha, Nebraska, owns and operates
some 30 plants throughout the country This proceeding involves the
Moorehead, Minnesota, plant, where the Company is engaged in the
production, processing, selling, and distribution of poultry, eggs,
milk, cream and butter, and other poultry and dairy products Dur-
ing the 6 months preceding the hearing, the Company purchased raw
materials for use at its plant, valued at more than $500,000 of which
approximately 10 percent was shipped from points outside the State
of Minnesota During the same period the Company made sales of
its products valued at more than $500,000, of which 90 percent was
shipped to points outside the State of Minnesota
II THE ORGANIZATION INVOLVED
United Packinghouse Workers Local 73-A, Packing House Organiz-
ing Committee is a labor organization affiliated with the Congress of
Industrial Organizations. It admits to membership employees, of
the Company.
III THE QUESTION CONCERNING REPRESENTATION
In the early part of April 1942, the Union requested' recognition
as the exclusive bargaining representative of certain employees at
the Moorehead plant of the Company On April 17, 1942, the Com-
pany refused the Union's request until the Union is certified by the
Board '
A report prepared by the Regional Director and introduced into
evidence'at the hearing indicates that the Union represents a substan-
tial number of employees of the Company in the unit hereinafter
found to be appropriate 2
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 National Labor
Relations Act
IV THE APPROPRIATE UNIT
The Union contends that all production and maintenance employees
of the Company at Moorehead, Minnesota, excluding truck drivers,
2 The Regional Director reported that the Union presented 138 application cards, 135
dated between October 1941 and May 1942 , 3 undated Of the 138 cards submitted, 112
bear the apparently genuine signatures of persons whose names appear on the Company's
pay roll of April 18, 1942 There are approximately 285 employees in the unit
FAIRMONT CREAMERY COMPANY, 1043
office workers, and supervisory employees constitute a unit appropriate
for the purposes of collective bargaining The Company contends that
the truck drivers should,be included in the unit and that the unit
should comprise all production and maintenance employees, exclud-
ing office workers and supervisory employees
The parties disagree as to whether or not certain employees come
within the classification of supervisory employees. The Union claims
that Jack Herman, Harold Bergford, Joey Walter Dahl, and Harold
Norstiuii are in the category of "straw bosses" and should be excluded
from the unit The Union also takes the position that John Stowers
is the assistant chief engineer and a supervisor, and should be ex-
cluded from the unit. The Company contends that these five em-
ployees are known as working foremen, that their jobs aie not com-
monly classified as supervisory, and that they should be included in
the unit.
The parties agreed that the, work of Herman Bergford, Dahl, and
Noistrum is substantially similar, and that all should be included ' or
all excluded They further agreed that the testimony of one with
respect to the nature of his work would apply equally to the work of
all, and that only one of these four employees would be called to
testify
Dahl was called to testify He stated- without contradiction that
he had been appointed a "supervisor" in April 1942; that he is hourly
paid and supervises the grading of eggs and dressed poultry; that
although he has no power to hire or discharge employees in his,de-
partment there are 48 or 50 such employees under his supeivision to
whom he gives orders and instructions concerning their duties, and
that he engages in very little manual labor We find that Dahl, Her-
man, Bergford, and Norstrum are supeivisory employees and we shall
exclude them from the unit.
John Stowers is an operating engineer, and has been employed by
the Company for the past 15 years There are four operating engi-
neers including the chief engineer. They work on 8-hour shifts.
Stowers performs similar work to that of the other operating engineers.
He is designated on the pay roll as an operating engineer but his fellow
employees have given him the title of "assistant chief " The chief
engineer gives Stowers .orders which he transmits to the other em-
ployees However, each operating engineer on a shift is relied upon
by the chief engineer to take care of that shift He has no authority
to lure or discharge. We find that Stowers is not in a supervisory
capacity, and shall include him in the unit.
There remains for disposition the question of the Company's tiuck
drivers The Company employs retail route drivers, county drivers;
wholesale route drivers; poultry drivers, and cream drivers. The
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
retail route drivers deliver milk, butter, and cottage cheese from house
to house, and solicit business. The wholesale route drivers go fiom
store to store and deliver milk, buttes, eggs, poultry, etc The county
drivers principally deliver ice-cream The poultry drivers pick up
poultry from stations, and the cream drivels pick up cream, eggs and
chickens at stations in the country The iecord does not disclose the
number of drivels employed
Some of the drivers are paid on an hourly rate while others are on a
weekly salary with commission. They drive company-owned trucks
and have no helpers They wear uniforms and report to work approx-
imately one hour earlier than the inside employees, load then trucks,
and leave the plant When they return they check•in merchandise not
sold, account for the merchandise sold, and check in their cash col-
lected The route drivers have route books in which they keep their
records, and the other drsveis make out sales tickets of which they
maintain duplicates The drivers are responsible for the route books
and sales tickets They distribute advertising literatui e for the Com-
pany on their routes. They attend sales meetings which are not at-
tended by the inside employees How ever, they are subject to the same
management, and repos t to 'work at the same place as the 'other
employees.
The Union recently acknowledged the jurisdiction of the Teamsters
over the drivers and the record shows that the drivers are not eligible
to membership in the Union and that the Union, as heretofore stated,
does not desire their inclusion in the unit We shall therefore exclude
them 3 1 -
The Company employs approximately 15 persons at a number of
branch stores located 30 or 40 miles outside of Moorehead These enm-
ployees procure from farmers raw materials for the Moorehead plant
to be used in the manufacturing there ' They are paid directly from
Moorehead, some on an hourly basis and others on a weekly salary
basis The Company desires their inclusion in the unit. The Union
makes no contention as to their inclusion or exclusion, and it does not
appear that it has organized them It would appear that the em-
ployees in question are purchasing agents and that they do not come
within the classification of "production and maintenance employees "
'Truck diivers have often been excluded by the Board from units of production and
maintenance employees Matter of Moulton Ladder Manufacturing Company and United
Furniture Workers of America , Local 136-B (CIO), 27 N L R B 40 , Matter of Inland
Steel Company and Steel Workers Organizing Committee, 9 N L R B 783 , Matter of
Century Biscuit Company and United Bakery Workers , 9 N L R B 1257, Matter of Sey-
mour Packing Company and Amalgamated Meat Cutters and Butcher Workmen of North
America , Local No 176, 12 N L R B 1098, Matte of Cudahy Packing Company and Pack-
ing House Workers Union, Local No 5, Amalgamated Meat Cutters & Butcher Workmen
of North America, 4 N L R B 39, Matter of Armour & Company and United Packing
House Workeis Industrial Local Union No 389, affiliated with C 10, 7 N L R B 710,
Matter of Armour & Company and Amalgamated Meat Cutters if Butehe, Workmen of North:
America, Local 235, 10 N L R B 912
FAIRMONT CREAMERY COMPANY 1045'
For this reason and in view of the distance of then respective stations
from the plant herein involved , we shall exclude these employees from
the unit.
We find that all pioduction and maintenance employees of the Com-
pany at its Moorhead , Minnesota , plant, including John Stowers, but
excluding truck drivers , office workers , and supervisory employees (in-
cluding Jack Herman, Harold B'ergford , Joey Walter Dahl; and
Harold Norstrum ), constitute a unit appiopiiate foi the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
V THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning, representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during,the pay-roll
period immediately preceding the date of our Direction of Election
herein, subject to the limitations and additions set forth in the Direc-
t ion
DIRECTION OF ELECTION
By viitue of and pursuant to the power vested in the National
Labor'Relations Board by Section 9 (c) of the National Labor Rela-
tions 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 to ascertain representa-
tives for the purposes of collective bargaining with Faii mont Creamery
Company, Moorhead, Minnesota, an election by seciet ballot shall be
conducted as early as possible but not later than thirty (30) days from
the date of this Diiection, midei the direction and supervision of the
Regional Director for the Eighteenth Region; acting in this matter as
agent foi the National Labor Relations Board, and subject to Article
III; Section 9, of said Rules;.and.Regulations, among, the, employees in
the unit found appropriate in Section IV, above, who wei e employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during said 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 excluding
employees who have since quit or been discharged for cause, to deter-
mine whether or not they desire to be represented by United Packing-
house Workers Local 73-A, Packinghouse Organizing Committee
(CIO), foi the purposes of collective bargaining
MR GERARD D REILLY took no part in the consideration of the above
Decision and Direction of Election.