Milliken-Tomlinson Co.

National Labor Relations Board - Board Decisions

Dec 7, 1944

59 N.L.R.B. 786 (N.L.R.B. 1944)

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In the Matter of MH.LIKEN-TOMLINSON Co. and TRUCK DRIVERS,
WAREHOUSEMEN & HELPERS LOCAL 340, A . F. of L.
Case No.1-R-X095.-Decided December 7, 1944
Mr. Nathan V. Thompson, of Portland, Me., and Mr. Vernon C.
Stoneman, of Boston, Mass., for the Company.
Mr. Raymond M. Conary and Mr. David Hastings, of Portland,
Me., for the Union.
Mr. Philip Licari, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
, STATEMENT OF THE CASE
Upon a petition duly filed by Truck Drivers, Warehousemen &
Helpers Local 340, A. F. of L., herein called the Union, alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Milliken-Tomlinson Co., Portland, Maine, herein
called the Company, the National Labor Relations Board provided for
an appropriate hearing upon due notice before John W. Coddaire, Jr.,
Trial Examiner. Said hearing was held at Portland, Maine, on
October 28, 1944. The Company and the Union appeared and par-
ticipated. 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. All
parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Milliken-Tomlinson Co., a Maine corporation with its principal
office and place of business in Portland, Maine, is engaged in the
purchase, sale, and distribution of groceries and produce. In con-
nection with its activities, the Company operates several grocery and
produce distributing centers consisting of a main warehouse in Port-
59 N. L. R. B., No. 157.
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MILLIKEN-TOMLINSON CO. 787
land, and branch warehouses in Bangor, Lewiston, and Presque Isle,
all in the State of Maine. Only the Lewiston warehouse is involved
in this proceeding. During the past 6 months, the Company pur-
chased groceries and produce valued at approximately $2,500,000, of
which in excess of 50 percent was shipped from points outside the
State of Maine. During the same period the Company's total sales
were approximately $2,800,000, of which $180,000 worth of groceries
and produce was shipped to points outside the State of Maine.
While the Company admits that its over-all activities affect com-
merce within the meaning of the National Labor Relations Act, it,
nevertheless;contends that its Lewiston warehouse activities, standing
alone, do not affect commerce within the meaning of the Act.
During the past 6 months, the Company's Lewiston warehouse
received groceries and produce valued at approximately $552,000, 20
percent of which was shipped to it by the Company's Portland ware-
house, and 90 percent of which was shipped to it directly by pro-
ducers. Approximately 40 percent of all such groceries and produce
was shipped to the Lewiston warehouse from points outside the
State of Maine. All shipments to the Lewiston warehouse are made
via railroads and trucks. During the same period, the Company's
Lewiston warehouse sold solely within the State of Maine groceries
and produce valued at approximately $600,000. The record discloses
that the Lewiston warehouse is an integral part of the Company's
entire operations.
In view of the foregoing facts, contrary to the Company's conten-
tion, we find that its Lewiston warehouse activities affect commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Truck Drivers, Warehousemen & Helpers Local 340, affiliated with
the American Federation of Labor, is a labor organization admitting
totYnembership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about September 5,1944, the Union advised the Company that
it represented a majority of certain of the Company's employees and
wished to be recognized as their sole bargaining representative. The
Company refused to recognize the Union on the ground that the unit
sought by the Union was inappropriate.
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing, indicates that the Union represents a sub-
stantial number of employees in the unit hereinafter found appro-
priate.)
' The Field Examiner reported that the Union submitted 8 application cards, all of which
bear names of persons appearing on the Company's pay roll of September 16, 1944, which
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
IV. THE APPROPRIATE UNIT
The Union seeks a unit of "all truck drivers, helpers, warehousemen
find regular part-time employees 2 in the Lewiston, Maine, branch of
the Company, except for salesmen, executives, supervisors and main
,office employees." The Company, on the other hand, contends that
all employees working throughout all its warehouses constitute the
appropriate unit.
In connection with its activities, the Company operates one main
warehouse in Portland and 3 branch warehouses in various parts of
the State of Maine. The Company maintains 1 of these branch ware-
houses in Lewiston, Maine, which is 35 miles distant from Portland,
Maine. At its Lewiston warehouse, the Company employs, among
others, 13 employees classified as warehousemen, truck drivers, and
helpers, all of whom are residents of Lewiston and its-vicinity. This
warehouse is in charge of a resident manager who has the power to
hire employees, subject to the approval of the Company's main office,
but he can discharge them at will. Despite the facts that the opera-
tions of all the Company's v arehouses are somewhat interrelated and
the Company's labor policies and conditions of employment are cen-
trally controlled, it appears that the employees of the Lewiston ware-
house comprise a homogeneous group under separate supervision, and
that there is no interchange of employees between the Lewiston ware-
house and the Company's other warehouses except in cases of promo-
tion. Moreover, the Union's recent organizational efforts have been
confined to the employees of the Company's Lewiston warehouse, and
these employees desire to be represented by the Union.3
We find that all the Company's truck drivers, helpers, wareho4se-
man, and regular part-time employees working at its Lewiston, Maine,
warehouse, excluding salesmen, office employees, supervisors, execu-
tives, and all other supervisory employees with authority to hire, pro-
mote, 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 mean-
ing of Section 9 (b)' of the Act.
contained the names of 13 employees in the alleged appropriate unit; and that 5 cards
were dated between August and September 1944, and 3 were undated.
2 The Company employs some school students who work as warehousemen full -time dur-
ing vacation periods and part-time during the rest of the school year.
3 In 1941, after the Union filed a petition for certification with the Board , a consent
election was held among the Company ' s Portland warehouse employees , which the Union
lost Case No. 1-R-571.
MILLIKEN-TOMLINSON CO.
V. THE DETERMINATION OF REPRESENTATIVES
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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 the Direction of Elec-
tion 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 representa-
tives for the purposes of collective bargaining with Milliken-Tom-
linson Co., Portland , Maine, an election by secret ballot shall be con-
ducted 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 First Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III,
Sections 10 and 11, of said Rules and Regulations , among the em-
ployees in the unit found appropriate in Section IV, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction, including employees who did not work during said
pay-roll period, because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls , but excluding
any who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election, to deter-
mine whether or not they desire to be represented by Truck Drivers,
Warehousemen & Helpers Local 340, A. F. of L., for the purposes of
collective bargaining.
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