Model Dairy

National Labor Relations Board - Board DecisionsFeb 12, 1947

72 N.L.R.B. 544 (N.L.R.B. 1947)

In the Matter of R. W. KIRCHNER, D/B/A MODEL DAIRY, EMPLOYER and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICUL- TURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), PETITIONER Case No. 8-R-2315.Decided February 12, 1947 Bowman, Hanna c6 Middleton, by Mr. Martin Hanna, of Bowling Green, Ohio, for the Employer. Mr. Walter Madraykowsici, of Toledo, Ohio, for the Petitioner. Mr. Leonard J. Mandl, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Bowling Green, Ohio, on November 1, 1946, before Thomas E. Shroyer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER R. W. Kirchner, doing business as Model Dairy, is engaged at Bowling Green, Ohio, in the business of buying milk from farmers in the surrounding communities within the State of Ohio, and of sell- ing the milk either in its raw or processed state or as converted at the plant into milk products such as cottage cheese, butter, and milk powder. During 1945, the Employer's sales amounted to more than $900,000, of which approximately 50 percent of the butter sales and 75 percent of the milk and other milk products sales were made to the U. S. Government. These sales were made pursuant to a Government set-aside order requiring milk producers to sell a designated portion of their products to the Government. This order was terminated on August 1, 1916. During the first 6 months of 1946, the Employer's sales amounted to more than $400,000, of which about $63,000 repre- sented shipments to points outside the State. About 10 percent of this 72 N. L. R. B, No. 103. 544 MODEL DAIRY 545 latter sum represented Government set-aside sales. At the time of the hearing there was a shortage of milk in many large cities through- out the United States, as a result of which the Employer sold a large portion of the milk to a broker who, it appears, sold this milk to cus- tomers outside the State of Ohio. This milk was cooled at the Em- ployer's plant and then pumped into tank cars for shipment. There is testimony that, absent the shortage, this milk would have been con- verted into butter, and that 85 to 90 percent of the Employer's total sales of milk and milk products would have been made to customers within the State, while the balance would apparently have been made to brokers within the State and the products would have been trans- shipped by them to other States. The Employer contends that, even if it were engaged in interstate operations at the time of the hearing, such operations were merely of a temporary or transitory nature. We are of the opinion that, during all of 1945 and the portion of 1946 up to and including the time of the hearing, the Employer was engaged in commerce within the meaning of the Act and that the mere contingency that its operations may change at some future date is not sufficient reason to divest the Board of jurisdiction at this time. We find, therefore, that the Employer is engaged in commerce within the meaning of the National Labor Relations Act.' H. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations , claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner 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 Employer, within the meaning of Section 9 ( c) and Section 2 (6) and ( 7) of the Act. IV. THE APPROPRIATE UNIT Petitioner seeks a unit of all employees of the Employer , including the maintenance engineer and the tester , but excluding the engineer- fireman, office employees , and supervisory personnel. The Employer agrees generally as to the appropriateness of the requested unit; it would , however, exclude the maintenance engineer and the tester. 'Matter of Oscar Ewing, Inc., 64 N. L R B 310. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The maintenance engineer: No reason was given by the Employer for desiring his exclusion. It is, however, apparent that he is a main- tenance employee, and as such, his interests are closely related to those of other employees in the unit. We shall, therefore, include him in the appropriate unit.' The tester: This individual conducts tests at various plants in the area, including that of the Employer. He operates his own laboratory. At the Employer's' plant he uses the Employer's equipment, but at smaller operations he uses his own equipment. He is paid on a monthly basis and the amount of time lie spends at the Employer's plant does not control his compensation. The number of days spent by him each month at the Employer's operations depends upon the amount of products on hand to be tested. It is evident from the foregoing that the tester has no community of interest with the other employees in the unit, and that his status is akin to that of an independent con- tractor. We shall, therefore, exclude him from the appropriate unit.a We find that all employees of the Employer, including the main- tenance engineer, but excluding the engineer-fireman, tester, office employees, and all or any other supervisory employees i with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with R. W. Kirchner, d/b/a Model Dairy, Bowling Green, Ohio, 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 Eighth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sactions 203.55 and 203.56, of National Labor Relations Board Rules and Regula- tions-Series 4, among the employees in the unit found appropriate in Section IV, above, who were emplcyed 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 2 Matter of Armour & Company, 65 N L R B 353 Matter of Zones Freight Agency, 65 N L It B 799 The parties agree, and we find, that the field nian is a supervisory employee within our customary definition MODEL DAIRY 547 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 or not they desire to be represented by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), for the purposes of collective bargaining.