Inter-Mountain Dairymen, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1963

143 N.L.R.B. 782 (N.L.R.B. 1963)

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grocery, produce, meat, and check-out. The food department manager
exercises direct control over these employees, through section man-
agers who supervise employees in these sections. As noted above,
the entire food department of Fields' store is separately partitioned
from the general merchandise department by high display shelves and
the department has its own separate entrances and checkout stands.
Chelmsford stocks and prices all of its own merchandise. Its em-
ployees punch timeclocks located in the food department.
In view of all the evidence that Chelmsford operates a separate
and distinct food department in Fields' discount store and is an em-
ployer of the employees in that department, the lack of any con-
trolling bargaining history, and the fact that the Intervenor does not
now seek an election in any other unit, we find that the following
employees constitute a separate appropriate unit for collective-
bargaining purposes : 3
All regular full-time and part-time employees employed by Chelms-
ford Food Discounters, Inc., in the food department of the Chelms-
ford, Massachusetts, store of F. F. Fields of Chelmsford, Inc., but
excluding office clerical employees, professional employees, guards,,
and department managers, and all other supervisors 4 as defined in the
Act.
[Text of Direction of Election omitted from publication.]
3 United Stores of America, 138 NLRB 383 ; Frostco Super Save Stores , Inc, 138 NLRB
125. See also Duane's Miami Corporation , 119 NLRB 1331 ; The Sperry and Hutchinson
Company, 117 NLRB 1762.
4The question was contested as to whether two employees ( Strock and Testa ), assigned'
to supervise sections within the food department , were supervisors. As these employees
responsibly direct the employees in their respective sections , we find that they are super-
visors within the meaning of the Act , and exclude them from the unit found appropriate
herein. Frankel is included in the unit in accordance with the parties ' agreement.
Inter-Mountain Dairymen, Inc.' and International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, Milk Drivers and Dairy Employees Local Union No. 537,
Petitioner . Case No. 27-RC-2358. July 23, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, hearings were held before hearing officers
F. T. Frisbey and W. Bruce Gillis, Jr.' The hearing officers' rulings
I The Employer's name appears as amended at the hearing
2 The original hearing in this case was held on January 22 , 1963. The Board there-
after remanded the proceeding for a further hearing, which was held on April 23, 1963.
After receiving due notice thereof, the Employer participated fully in the hearing held on
April 23, 1963, and all relevant issues of this case were heard at that time
143 NLRB No. 87.
INTER-MOUNTAIN DAIRYMEN, INC. 783
made at the hearings are free from prejudicial error and are hereby
affirmed.
Pursuant to Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Mem-
bers Leedom, Fanning, and Brown].
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 organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Sec-
tions9(c) (1) and 2(6) and (7) of the Act.
Inter-Mountain Dairymen, Inc., is a Colorado corporation engaged
in the cooperative transporting and marketing of milk and milk
products for its producer-members, with its main office at Colorado
Springs, Colorado. Eastern Colorado Dairymens Association and
Western Colorado Milk Producers Association were cooperative as-
sociations of milk producers. On March 26, 1963, they consolidated
their operations into a single cooperative, Inter-Mountain Dairymen,
Inc., which is the Employer in this case.' At the further hearing,
the Employer moved to dismiss the petition because Eastern, the em-
ployer named in the Union's petition, no longer exists due to the
merger.' The Union thereupon amended its petition to name Inter-
Mountain as the Employer herein.
It appears that Inter-Mountain has taken over the operations of
both Eastern and Western, including all of their assets, liabilities, and
contract obligations. Dwight Hull, formerly the manager of Eastern,
has become the manager of Inter-Mountain. He has authority over
what were formerly Eastern and Western, but are now denominated
`.eastern division" and "western division" of Inter-Mountain. These
divisions are separated by the Continental Divide. Except for the
corporate consolidation, there has been no change in the operations of
the two enterprises since the petition was filed. Colorado Springs,
formerly the main office for Eastern, is now the principal headquarters
of Inter-Mountain; and Grand Junction, formerly Western's main
office, currently serves as a branch office of Inter-Mountain. Essen-
tially the same employees were retained at each location, and they
have the same supervision as they had before the consolidation. Their
work has not changed, salaried drivers are still hired locally by the
'Herein referred to as Eastern, Western, and Inter-Mountain, respectively.
4 The Employer also questioned the adequacy of the Petitioner's showing of interest
because of the consolidation of Eastern and Western which, in turn, brought about an
increase in the work force of Inter-Mountain. We do not agree that a new showing of
interest should be required of the Petitioner, since we are administratively satisfied that
it made an adequate showing in the unit hereinafter found appropriate. See J & W Coal
Company, 136 NLRB 393.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors in each area,' and the merger has brought no significant
interchange of employees between the eastern and western divisions.
On this record, we find that Inter-Mountain has replaced Eastern as
the Employer of the employees whom the Petitioner seeks herein. As
a change in the corporate structure of the Employer during the course
of representation proceedings is not, by itself, sufficient to warrant
such dismissal, the motion of Inter-Mountain to dismiss the petition
is hereby denied.6
4. The Petitioner seeks a unit limited to the salaried drivers and
helpers in the Employer's eastern division which, at the time of the
hearing, consisted of employees located at its Colorado Springs and
Burlington, Colorado, offices. It would exclude the owner-drivers
and fieldmen in the eastern division as well as all employees operating
out of the western division. The Employer contends that the ap-
propriate unit should include all truckdrivers and helpers, both sal-
aried and owner-drivers, as well as the fieldmen in both divisions of
the Employer. In the alternative, the Employer would agree to a
statewide unit limited to salaried drivers and fieldmen.? No union is
seeking to represent a more comprehensive unit as sought by the Em-
ployer, and there is no bargaining history for any employees of the
Employer or its predecessors.
Assuming without deciding that the' units requested by the Em-
ployer might be appropriate for collective bargaining, this does not
mean that they are the only appropriate ones 8 Rather, we must also
evaluate the appropriateness of the unit sought by the Petitioner.
The record clearly establishes the appropriateness of a unit limited
to the Employer's eastern division under Section 9 (b) of the Act.
As previously indicated, functionally the eastern and western divisions
of the Employer operate virtually the same as before the merger.
Although Hull is ultimately responsible for Inter-Mountain's ac-
tivities, each division is largely autonomous in its daily operations.
Little, if any, interchange of drivers or fieldmen takes place between
the divisions, and there is a substantial geographic separation between
the trucking routes centralized in the Grand Junction area and those
near Colorado Springs. The facts show that the consolidation has
not significantly integrated the Employer's eastern and western divi-
sions, and, accordingly, we find appropriate the Petitioner's requested
unit limited to Inter-Mountain's eastern division.
The Petitioner would exclude the owner-drivers from the unit on
the ground that they are independent contractors. The Employer
I Within the eastern division of Inter -Mountain is a small office at Burlington , Colorado.
This office, located 10 miles from the Kansas border , was formerly part of Eastern, and
continues to serve producer-members operating in Kansas.
O New Laxton Coal Company, 134 NLRB 927, 929
7 The parties 'stipulated that laboratory testers should be excluded from any unit, and,
accordingly , we shall exclude them.
8 Cf P. Ballantine & Sons, 141 NLRB 1103.
INTER-MOUNTAIN DAIRYMEN, INC. 785
urges their inclusion. The relationship of the owner-drivers, or
contract drivers, with the Employer is controlled by an agreement
under which the Employer utilizes their equipment and services.'
The contract is effective for 1 year, with an option to renew annually,
and may be terminated by either party upon 60 days' written notice.
Under its terms the owner-driver is required to devote himself ex-
clusively to Inter-Mountain.
Both the owner-drivers and the salaried drivers are assigned specific
areas and producer-members whose milk they are to haul. Each
owner-driver's contract contains an "exhibit," which sets forth the par-
ticular producer-members to whom he is allocated, and the owner-
driver may not change routes or producer-members without approval
of the Employer. Neither the owner-drivers nor the salaried drivers
are required to work set hours or travel specific routes, but, because
of spoilage and other factors, producer-members' milk must be picked
up every other day. None of the drivers, whether owners or salaried,
punch a timeclock. All are under the control and direction of the
Employer's dispatcher and have their work and equipment regularly
inspected by the Employer's fieldmen. When the occasion demands,
the Employer issues written instructions to the owner-drivers which
require them to conform to certain techniques and procedures in their
daily work performance.
The record reveals that the Employer puts considerable emphasis on
the proper testing of the producer-members' milk before it is pumped
into the truck tanks at the farms. Both the owner-drivers and the
salaried drivers are licensed by the Department of Agriculture to con-
duct tests and sampling of the milk, and the Employer requires all
the drivers to conform strictly to its testing standards in order to in-
sure that the milk is of proper quality.10 If the milk is unacceptable
to the driver, it is left on the farm. Occasionally, a producer-member
complains about a driver's testing technique, and, regardless of
whether the driver is salaried or on contract, the Employer sends one
of its fieldmen to doublecheck the driver's performance.
The owner-drivers' compensation is determined by three factors,
also set forth in each contract : (1) the total volume of milk in their
given area; (2) the mileage hauled between the farms and the proc-
essing plants; and (3) the volume of milk of the individual producer-
member actually hauled from the dairy farm. The owner-drivers
receive certain flat rates for milk hauled additional distances. Deter-
0 The Employer stated that it supplies the tanks for some owner -drivers . In these in-
stances, such owner- drivers' rates of pay are reduced accordingly
10 It appears that, from time to time , all drivers attend Department of Agriculture
"schools " where they are kept up to date on testing and sampling developments Gener-
ally, before the milk is hauled from the farm , the driver must be sure that it is cooled to
40° He then tests the milk by taste to determine whether it has a weed or wheat
taste which would warrant its rejection and samples are taken , one to remain at the dairy
and the other to be brought to the Employer 's laboratory
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gents, cleaning compounds, and parts for dairy machines are brought
to the farms from the Employer's office by both types of drivers, and
the owner-drivers receive no additional compensation for this service.
If an owner-driver's equipment were to break down, a salaried driver
would be substituted for him on the route or the owner-driver would
use some of the Employer's spare equipment until his was repaired.
They do not receive the vacation and fringe benefits accorded the sal-
aried drivers.ll The owner-drivers obtain their own P.U.C. permits
and licenses, have their own names painted on their trucks, and are
responsible for the maintenance and insurance of their equipment.
Each owner-driver hires and pays any replacement driver on his
truck, but the Employer may veto the selection of any substitute if
in its judgment he is not qualified.
On the entire record of this case, we conclude that the owner-drivers
are employees of the Employer and not independent contractors. We
have long held that whether an individual is an independent con-
tractor or an employee under the Act is determined by the applica-
tion of the "right of control" test.12 If the person for whom the
services are performed reserves the right to control not only the end
to be achieved but also the means by which the result is to be attained,
an employer-employee relationship exists. A weighing of the facts
of each case resolves this question, and no one factor is determinative.
There are several particularly significant matters which persuade
us that this Employer has retained such control over the owner-
drivers that their independence is minimal. Thus, we note the require-
ment that they haul the Employer's milk exclusively, the determina-
tion by the Employer of the quota of producer-members and the route
assignments, the licensing of all drivers in the same manner for milk
testing, the regular inspection of all drivers' testing and sampling
performances by the Employer's fieldmen, the establishment of regu-
lations applicable to both types of drivers, and the Employer's right
to determine the qualifications of any substitute selected by an owner-
driver. We do not view as inconsistent with the employer-employee
relationship the fact that the owner-drivers have their own names on
their trucks. By the very nature of the Employer's business, the
advantage of having its name on every truck hauling its milk is
minimal. The Employer, a dairy cooperative association represent-
ing the sum total of its members, is primarily engaged in having the
products of its members brought to processing plants, and it would
seem to have little need to advertise to the public.
u Upon request , Hull stated that the Employer would advance money to an owner-
driver. If the owner-driver gives written authorization , the Employer will also deduct
specified amounts from his monthly compensation
19 Albert Lea Cooperative Creamery Association , 119 NLRB 817 , 821, 822; National
Van Lines , 117 NLRB 1213, 1219.
NELLO L. TEER COMPANY 787
On all the facts, we find that the owner-drivers retain little entre-
preneurial independence in the operation of their vehicles. There-
fore, we shall include them in the unit.
The Employer further contends that the fieldmen should be in-
cluded in the drivers' unit. The Petitioner requests their exclusion.
It appears that the fieldmen's primary function is to inspect various
equipment on the farms, make sure standards of cleanliness are ob-
served, and check up on the drivers' testing techniques. If the field-
men find an unsatisfactory health condition on a farm, they report this
both to Inter-Mountain and to the processing plant to which the
producer normally sends his milk. The fieldmen use either Employer
pickup trucks or their own cars to get from farm to farm. They do
no hauling of milk, and are never used as substitutes for any of the
drivers. On these facts, we find that driving a truck is only an
incidental aspect of the fieldmen's duties. Their basic activities do
not indicate a sufficient community of interest with the truckdrivers,
and we shall, therefore, exclude them from the unit.
Accordingly, in view of all the foregoing, we find that the follow-
ing employees of the Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act : All salaried and owner or contract drivers employed by
the Employer at its Colorado Springs, Colorado, and Burlington,
Colorado, offices, but excluding fieldmen, laboratory testers, and all
supervisors as defined in the Act.l3
[Text of Direction of Election omitted from publication.]
1s As the appropriate unft is larger than the unit sought, the Petitioner may withdraw
its petition without prejudice upon notice to the Regional Director within 10 days from
the date of this Decision.
Nello L . Teer Company and International Union of Operating
Engineers , Local 542, AFL-CIO. Case No. 4-CA-2713-3. July
204, 1963
DECISION AND ORDER
On April 15, 1963, Trial Examiner Lloyd Buchanan issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. The Trial Examiner also found that the Respondent had
not engaged in certain other alleged unfair labor practices, and recom-
mended that those allegations of the complaint be dismissed. There-
143 NLRB No. 85.
717-672-64-vol. 143-51