Milton Co-Operative Dairy Corp.

National Labor Relations Board - Board Decisions

Jun 11, 1946

68 N.L.R.B. 535 (N.L.R.B. 1946)

In the Matter of MILTON CO-OPERATIVE DAIRY CORP and UNITED RE-
TAIL, WHOLESALE & DEPARTMENT STORE EMPLOYEES OF AMERICA
(CIO), NEW ENGLAND JOINT BOARD
Case No. 1-R-2934.-Decided June 11, 1946
Messrs. A. Pearley Feen and Leon D . Latham, Sr., both of Burlington,
Vt., for the Company.
Mr. Frank J Dumas, of Burlington , Vt., for the C. I. O.
Mr. Leon W. Woodbury, of Barre, Vt., for the A. F. L.
Mr. Warren H. Leland, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Retail, Wholesale & Department
Store Employees of America (CIO), New England Joint Board,
herein called the C. I. 0., alleging that a question affecting commerce
had arisen concerning the representation of employees of Milton Co-
Operative. Dairy Corp., Milton, Vermont, herein called the Company,
the National Labor Relations Board provided for an appropriate hearing
upon due notice before Samuel G. Zack, Trial Examiner. The hearing
was held at Burlington, Vermont, on April 23, 1946. The Company,
the C. I. 0., and International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (AFL), Local 597, herein
called the A. F. L., 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. At the hearing the Com-
pany moved to dismiss the petition. For reasons discussed in Section I,
infra, 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.
b8 N. L. R. B., No. 76.
535
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Milton Co-Operative Dairy Corp., a Vermont corporation with its
principal office in Milton, Vermont, is engaged in the business of proc-
essing and selling milk received from approximately 750 farmers, who
are its members.
During 1945, the Company purchased bags, tin cans, tubs, and other
supplies valued at approximately $20,000, all of which were received
from points located outside the State of Vermont. Also during 1945, the
Company purchased 81,000,000 pounds of milk valued at approximately
$3,000,000. During the same period its total sales were valued at ap-
proximately $4,000,000. During the months of May and June 1945, the
Company sold approximately 400,000 pounds of butter and milk, almost
all of which were shipped to points outside the State of Vermont. Dur-
ing the same months it produced approximately 124,000 pounds of
butter, of which 55 percent was sold to the United States Government,
and the balance to customers in States other than Vermont.
The main plant of the Company is located in Milton, and in addition
it operates six "stations" located at Essex Junction, Fairfax, Georgia,
Swanton, and Alburg, all in the State of Vermont. The milk is delivered
to the Company at its main office or stations, by the farmer-members
and is then weighed and tested for butter content. The farmers are
paid on the basis of the weights and tests. The milk is sent via tank cars
to Boston, Massachusetts, where it is sold. All of the "stations" have
vats in which casein is produced; also each has a large refrigerator,
some of which are mechanical. The bulk of the processing of by-products
is carried on at the main plant at Milton, where powdered milk, casein,
condensed milk, and butter are produced.' The Company also separates
cream from the milk and sends the cream to Boston for sale. The Com-
pany owns a building in Boston, where it maintains an office with two
employees who take care of its interests.
In its motion to dismiss the Company insists that its employees are
agricultural laborers within the meaning of Section 2 (3) of the National
Labor Relations Act, and therefore exempt from the provisions of the
Act. But the Company's employees do not work on farms. They are
commercially engaged in receiving milk from farmers, weighing and
testing it, separating the cream from the milk, and manufacturing or
'Because of the presently existing milk shortages, the processing of by-products has been
discontinued, but it is anticipated that it will be resumed when normal conditions return to
the dairy industry.
MILTON CO-OPERATIVE DAIRY CORP. 537
processing by-products. When the milk leaves the farm and reaches
the Company for processing and marketing, it becomes engulfed in the
first step of industrial activity, and is then in the practical control of a
large selling organization. Employees who are not working at farming,
but specializing in the preparation of farm products for trade or ship-
ment after they have been sent from the farm, are not "agricultural
laborers" excepted from the definition of "employee" in the National
Labor Relations Act.
Accordingly, we find no merit in the Company's contention that
its employees are agricultural laborers, and thus outside the jurisdiction
of the Act.2 And we find that the Company is engaged in commerce
within the meaning of the National Labor Relations Act.
II THE ORGANIZATIONS INVOLVED
United Retail, Wholesale & Department Store Employees of America,
New England Joint Board, is a labor organization affiliated with the
Congress of Industrial Organizations, admitting to membership em-
ployees of the Company.
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 597, 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 its employees until
the C. I 0 has been certified by the Board in an appropriate unit.
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
We find, in accordance with the agreement of the parties, that all pro-
duction and maintenance employees employed by the Company, at its
Milton, Vermont, plant, and stations located at Essex Junction, Fairfax,
Georgia, Swanton, Colchester, and Alburg, all in the State of Vermont,
excluding executives, office and clerical employees, ice harvesters,$ work-
2 See N. L. R. B v Tovrea Packing Co., 111 F (2d) 626 (C. C. A 9), cert . den 311 U. S.
668; Matter of North Whittier Heights Citrus Association v. N. L R. B , 109 F. (2d) 76
(C. C A 9), cert. den 310 U. S 632; Matter of Idaho Potato Growers, Inc., et at v.
N L R B, 144 F (2d) 295 (C. C A. 9), cert den 323 U. S. 769.
3 Persons solely employed as ice harvesters are excluded from the unit, however , individuals
who perform ice harvesting work but are otherwise regularly employed as production and
maintenance employees by the Company are included in the unit insofar as their production
and maintenance duties are concerned.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing foremen, and all 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 appro-
priate 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 employees
in the appropriate unit who were employed during the pay-roll period
immediately 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 representa-
tives for the purposes of collective bargaining with Milton Co-Operative
Dairy Corp., Milton, Vermont, 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 employees
in the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this Direc-
tion, 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 them-
selves 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 represented by United Retail, Wholesale & Department
Store Employees of America (CIO), New England Joint Board, or by
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (AFL), Local 597, 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.