Michigan Producers' Dairy Co.

National Labor Relations Board - Board Decisions

May 16, 1946

68 N.L.R.B. 6 (N.L.R.B. 1946)

In the Matter of MICHIGAN PRODUCERS' DAIRY COMPANY and UNITED
DAIRY WORKERS, LOCAL No 83, C. I. O.
Case No. 7-R-2173.-Decided May 16, 1946
Mr. Donald I. Albaugh, of Detroit, Mich., for the Company.
Mr. Nicholas J. Rothe, of Detroit, Mich., for the C. I. O..
Padway & Goldberg, by Mr. I. E Goldberg, of Milwaukee, Wis., for
the A. F. L.
Mr. Arthur Christopher, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Dairy Workers, Local No. 83,
C. I. 0., herein called the C. I. 0., alleging that a question affecting com-
merce had arisen concerning the representation of employees of Michigan
Producers' Dairy Company, Sebawaing, Michigan, herein called the Com-
pany, the National Labor Relations Board provided for an appropriate
hearing upon due notice before Woodrow J. Sandler, Trial Examiner.
The hearing was held at Detroit, Michigan, on April 1, 1946. The Com-
pany, the C. I. 0., and International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local 486, A. F. of L.,
herein called the A. F. L., appeared and participated. All parties were
afforded full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues. At the hearing,
the A. F. L. moved to dismiss the petition on the ground that (1) the
Company is not engaged in commerce within the meaning of the Act;
(2) an existing contract between the Company and the A. F. L. is a bar
to the instant proceeding; and (3) the C. I. O. had made no demand to
bargain prior to the filing of its petition. The motion was referred to the
Board by the Trial Examiner. For reasons stated hereinafter, the motion
is hereby denied. The Trial Examiner's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. All parties were
afforded opportunity to file briefs with the Board
68 N L. R. B., No. 2.
6
MICHIGAN PRODUCERS' DAIRY COMPANY
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
7
Michigan Producers' Dairy Company is a Michigan corporation with
principal offices in Adrian, Michigan, and plants located at Adrian, Stan-
dish, and Sebawaing, Michigan. The Company is engaged in the manu-
facture and production of sweet cream, non-fat dry milk solids, condensed
skim milk, ice cream mix, and butter. The Company purchases all raw
milk and supplies used in its operations within the State of Michigan.
During 1945 the total sales of its products was in excess of $5,600,000,
of which amount 40 percent represented sales made to customers located
outside the State of Michigan. At its Sebawaing plant, the only one in-
volved in this proceeding, the Company produces sweet cream and non-
fat milk solids, or powdered milk. In 1945, the Company sold in excess of
$530,000 worth of powdered milk, or about 98 percent of the total quan-
tity produced at the Sebawaing plant, to concerns engaged in interstate
commerce.
We find, contrary to the contention of the A. F. L., that the Company
is engaged in commerce within the meaning of the National Labor Rela-
tions Act.
II THE ORGANIZATIONS INVOLVED
United Dairy Workers, Local No. 83, is a labor organization, affiliated
with the Congress of Industrial Organizations, admitting to membership
employees of the Company.
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 486, is a labor organization, affiliated with
the American Federation of Labor, admitting to membership employees
of the Company.
III THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the C. I. O. as the
exclusive bargaining representative of certain of the Company's employ-
ees. The Company and the A. F. L. assert that an existing contract con-
stitutes a bar to this proceeding.
On January 1, 1945, the Company and the A. F. L. executed a 1-year
collective bargaining contract which contained a provision that it would
be automatically renewed from year to year thereafter, unless either party
gave notice in writing at least 30 days prior to any expiration date of a
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desire to terminate the agreement. On November 27, 1945, more than 30
days prior to the first anniversary date of the contract, the C. I. O. filed
with the Board a petition for investigation and certification of representa-
tives under Section 9 (c) of the Act. Inasmuch as the C. I. O.'s petition
was filed prior to the operative date of the automatic renewal clause, we
find that the contract is not a bar to this proceeding.'
A statement of a Board agent, introduced into evidence at the hearing,
indicates that the C. I. O. represents a substantial number of employees
in the unit hereinafter found appropriate .2
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties are generally agreed that the appropriate unit should con-
sist of all production and maintenance employees of the Company at its
Sebawaing, Michigan, plant, including truck drivers, but excluding office
and clerical employees, and all supervisory employees. However, they are
in disagreement as to the inclusion or exclusion of the plant superin-
tendent; the Company and the A. F. L. would include him, whereas the
C. I. O. would exclude him.
The Company employs as supervisors one plant superintendent and
one plant manager. Under the general supervision of the plant manager,
the plant superintendent is in charge of a group of about eight employees.
In addition to directing the work of these employees, the plant superinten-
dent assists the plant manager in laying out the work for all employees
in the plant and also substitutes for the latter with full authority and
responsibility during the manager's absence from the plant. Although the
plant superintendent spends a substantial part of his time in manual
work, it appears that he has the power effectively to recommend a change
in the status of his subordinates. Accordingly, we find that the plant
superintendent is a supervisor within the Board's customary definition.
We shall, therefore, exclude him from the unit.
' See Matter of E. I. du Pont de Nemours & Co, 64 N. L. R. B . 1517; Matter of Portland
Lumber Mills, 56 N. L. R B 1336; Matter of Mill B, Inc., 40 N L R B 346.
The C. I. O. alleged that it sent a telegram to the Company, in which it requested recog-
nition as exclusive bargaining representative of the Company's production and maintenance
employees, prior to the date on which it filed its petition , whereas the A. F L contended that
a demand to bargain had not been made. Neither the telegram, nor a copy thereof, was produced
as evidence . However, it is unnecessary to make a determination concerning the receipt of the
telegram inasmuch as the C. I. O.'s petition was timely filed
' The Field Examiner reported that the C . I O. submitted 14 cards bearing the names of
employees listed on the Company 's pay roll of January 26, 1946 The A F. L. relies upon
its contract with the Company as evidence of its interest in this proceeding . There are
approximately 24 employees in the appropriate unit.
MICHIGAN PRODUCERS' DAIRY COMPANY 9
We find that all production and maintenance employees of the Com-
pany at its Sebawaing, Michigan, plant, including truck drivers, but ex-
cluding office and clerical employees, the plant superintendent, and all
other supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for 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 employees in
the appropriate unit who were employed during the pay-roll period imme-
diately preceding the date of the Direction of Election herein, subject to
the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and 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 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with Michigan Producers' Dairy
Company, Sebawaing, Michigan, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Seventh Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III, Sec-
tions 10 and 11, of said Rules and Regulations, among employees in the
unit found appropriate in Section IV, above, who were employed during
the pay-roll period immediately preceding the date of this Direction, in-
cluding employees who did not work during said pay-roll period because
they were ill or on vacation or temporarily laid off, and including employ-
ees in the armed forces of the United States who present themselves in
person at the polls, but excluding those employees who have since quit
or been discharged for cause and have not been rehired or reinstated prior
to the date of the election, to determine whether they desire to be repre-
sented by United Dairy Workers, Local No. 83, C. I. 0., or by Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 486, A. F. of L., for the purposes of collec-
tive bargaining , or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.