Philadelphia Dairy Products Co., Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1941

36 N.L.R.B. 737 (N.L.R.B. 1941)

In the Matter of PHILADELPh IA DAIRY PRODUCTS Co., INC., and LocAL
INDUSTRIAL UNION No. 1119, CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. R-0898-Decided November 7, 1941
Jurisdiction : ice cream manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
quest for recognition of petitioning union denied by Company because of
subsisting closed-shop contract with other union; held, both original contract
about to expire and extension agreed subsequent to filing of petition ineffectual
as bar to present investigation; seasonal employees employed during last
two preceding seasons eligible to vote ; elections necessary.
Unit Appropriate for Collective Bargaining : since either a single,unit or two,
units feasible, election ordered to determine whether power and maintenance
employees, including watchmen, desire to be included in separate unit or in.
plant-wide unit with production, transportation, and shipping employees ;
request.of A. F. of L. for separate units of (a) production employees and (b)
transportation and shipping employees denied where both groups are eligible,
to same A. F. of L. union, have been organized both by A. F. of L. union and
C. I. 0. without distinction as to duties, and where separation contrary to^
past bargaining history ; incision in production, transportation, and shipping
unit of printers because of bargaining history ; of restaurant employees as
desired by parties,; exclusion from either unit of employees above rank of
working foremen ; of office and clerical employees because of bargaining
history and separate character of duties, and likewise of registered nurse,
and trained laboratory workers.
Mr. Thomas Raeburn White and Mr. Richard C. Bull, of Phila-
delphia; Pa., for the Company.
Mr. M. H. Goldstein, of Philadelphia, Pa., for the C. I. O.
Mr. Edward Davis, Mr. Louis H. Wilderman, and Mr. Frank E.
Casey, of Philadelphia, Pa., for the Teamsters and the Firemen &
Oilers.
Mr. Charles W. Sweeney and Mr. John R. Fiedler, of Philadel-
phia, Pa., for the Association.
Mr. Armin Uhler, of counsel to the Board.
36 N. L. R. B., No. 155.
73,7
42 31 IS -42-vol. 36--48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 17, 1941, Local Industrial Union No. 1119, Congress of
Industrial Organizations,' herein called the C. I. 0., filed with the
Regional Director for the Fourth Region (Philadelphia, Pennsyl-
vania) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Philadelphia
Dairy Products Co., Inc., Philadelphia, Pennsylvania, herein called
the Company, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On July 21, 1941, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act, and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On July 24, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the C. I. 0.,
and upon International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Driver Salesmen's Union, Local
463, affiliated with the American Federation of Labor, herein called
the Teamsters, and International Brotherhood of Firemen, Oilers,
Powerhouse Operators, Ice Plant Employees and Maintenance Men,
Local 473, affiliated with the American Federation of Labor, herein
called the Firemen & Oilers, and Aristocrat Employees Protective
Association, herein called the Association, labor organizations claim-
ing to represent employees directly affected by the investigation.
Pursuant to notice, a hearing was held on August 18 and 19, 1941, at
Philadelphia, Pennsylvania, before Jerome I. Macht, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. On August
28, 1941, the Board granted a motion to reopen the hearing, filed
by the Teamsters on August 21, 1941.. On August 29, 1941, the said
Regional Director issued a notice of hearing which was served upon
the above-named parties and a further hearing was held on Septem-
ber 8, 1941, at Philadelphia, Pennsylvania, before the above-named
Trial Examiner. The Company, the C.. I. 0., the Teamsters, the
1 A motion of 'Local Industrial Union to correct the petition and other formal papers by
adding "No. 1119" to the name of the Union was granted at the hearing of this case.
PHILADELPHIA DAIRY PRODUCTS CO., INC. 739
Firemen & Oilers, and the, Association were represented by counsel
and participated in both hearings. Full opportunity to be heard,
to examine and cross-examine witnesses, and.to introduce evidence
bearing on the issues was afforded all parties. During the course
of the hearing, the C. I. O. moved to exclude the Association from
participation in the hearing on the ground that it had ceased to
exist. The Trial;Examiner denied the motion without prejudice to
its being renewed before the Board.2 During the-course of the hear-
ing the C. I. O. further moved to amend the allegation in its petition
concerning the appropriate unit. The Trial Examiner granted the
motion over objections of the Firemen & Oilers and the Association.
During the course'of the hearing the Trial Examiner made rulings
on other motions and on objections to 'the admission of evidence.
The Board has reviewed all the rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On September 20 and 22, respectively, the Company and the Team-
sters filed briefs which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OFi THE COMPANY
Philadelphia Dairy Products Co., Inc., is a Pennsylvania corpora-
tion, with its main plant and offices at Philadelphia, Pennsylvania.
The Company is engaged in the manufacture, sale, and distribution
of ice cream and various dairy products. The Company's dairy
business is entirely separate from its ice-cream plant. In connection
with the latter, the Company maintains distribution stations, of
which six are located in Pennsylvania, two in Delaware, and four in
New Jersey. This proceeding concerns exclusively the Company's
ice-cream business.
The principal materials used by the Company in its ice-cream
business are milk, cream, butter, and condensed milk, valued in
excess of $500,000 per year. The Company secures two-thirds of
these materials in Pennsylvania and one-third in equal proportions
from Wisconsin and New York. The Company also uses in its ice-
cream business flavoring materials and sugar valued at approximately
$500,000 per year, three-fourths of which it secures from New York
and Georgia, and one-fourth in Pennsylvania. The Company man-
2 Although no renewal of the motion has been brought to the Board's attention, we find
that the record fails to establish the dissolution of the Association. The motion is therefo-e
denied.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ufactures approximately 18,000,000 quarts of ice cream per year,
valued at approximately $5,000,000. Approximately two-thirds of
this amount is delivered to customers in Pennsylvania, while approx-
imately one-third is shopped in equal proportions to New Jersey
and Delaware.
The Company concedes that it is engaged in commerce within the
meaning of the Act.
IT. THE ORGANIZATIONS INVOLVED
Local Industrial Union No. 1119 is a labor organization affiliated
with the Congress of Industrial Organizations; International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Driver Salesmen's Union, Local No. 463, and International
Brotherhood of Firemen, Oilers and Powerhouse Operators, Ice Plant
Employees and Maintenance Men, Local 473, are labor organizations
affiliated with the American Federation of Labor; Aristocrat Em-
ployees Protective Association is an independent labor organization;
all admit to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated April 9, 1941, a representative of the C. I. O. first
communicated to the Company a claim of majority representation
among certain employees in the Company's ice-cream plant and re-
quested a conference for the purpose of bargaining negotiations. On
April 16, 1941, the Company's president suggested a meeting with the
C. I. O. representative, although he declined to enter upon negotia-
tions because of a closed-shop contract with the Association. The
following day the C. I. O. invoked the Board's jurisdiction for the
determination of the alleged question of representation.
On November 19, 1937, the Company and the Association entered
into a collective bargaining contract covering all of the Company's
employees in,its ice-cream plant except those ina supervisory capacity.
The contract contains a preferential hiring clause 3 and provides for
automatic renewal from year to year beginning November 1, 1938,
unless terminated on thirty (30) days' notice prior to the annual
expiration date. On February 25, 1938, and on December 21, 1939,
amendments in the form of employee classifications and wage sched-
ules were executed by the parties. As amended, the contract would
expire on November 1, 1941. However, the Company and the Associa-
tion, on April 29, 1941, modified the terms of the contract and
] In Article III the Company agrees "that all new employees shall, withln' 30 days from
the' start of their employment become members of the Association."
PHILADELPHIA DAIRY PRODUCTS CO., INC. 141
extended its duration to November 1, 1942 4 The Company's presi-
dent testified that this action was taken, notwithstanding the filing
of the petition by the C. 1. 0. on April 17, 1941, because of the presenta-
tion of a petition in which the membership of the Association signi-
fied its desire for continued representation by the Association for
bargaining purposes.
The Association and the Teamsters contend that the contract is
a bar to a present determination of representatives 6 The contract
without the modification agreed upon on April 29, 1941, would expire
on November 1, 1941, and therefore would not constitute a bar to a
determination of representatives at this time.7 The modification and
extension of the contract were agreed upon subsequent to the filing
of the petition by the C. I. O. and consequently it is ineffectual as a
bar to this investigation .8
Statements prepared by the Regional Director and introduced in
evidence disclose that the C. I. 0., the Teamsters, and the Firemen &
Oilers have been designated by substantial numbers of employees in
the units each alleges to be appropriate.9
We find that a question has arisen concerning the representation
of employees of the Company.
. 4 This extension of the contract was voted at a meeting of the Association on April 28,
1941, and was adopted on the condition that the Company grant a wage increase, the
details of which are set out in a wage schedule attached to the agreement signed by the
parties on April 29, 1941. There is considerable conflict in the testimony as to the regu-
larity of this meeting. The decision we have reached makes it unnecessary to determine the
validity of the action taken.
'This petition was not introduced in evidence.
6 The Association and the Teamsters have taken the alternative position that the Asso-
ciation's contract with the Company had been assigned to the Teamsters by action taken
at a meeting of the Association on May 22, 1941. The record shows that only about 50
members were present at this meeting. In view of the decision which we have reached it
is not Necessary for us to determine the validity of the attempted assignment.
7 Matter of McLouth Steel Corporation and Local 174, International Union, United Auto-
mobile Workers of America, affiliated with the Congress of Industrial Organizations, 30
N. L. R. B., No. 142.
8 Matter of Malden Electric Company and Brotherhood pf Utility Workers of New England,
Inc., 33 N. L. R. B., No. 16.
O The Regional Director's statements show that : (1) The C. I. O. submitted 210 mem-
bership application cards of which 10 are duplicates, the remaining 200 cards bearing
apparently genuine signatures; 117 of the 200 signatures correspond to the names on the -
Company's April 16, 1941, pay roll. (2) The Teamsters submitted 179 membership appli-
cation cards of which 7 are duplicates and 169 bear apparently genuine signatures ;
145 of the signatures correspond to names on the Company's April 16, 1941, pay roll. (3)
The Firemen & Oilers submitted 30 authorization cards, all of which bear what appear to be
genuine signatures corresponding to names appearing on the Company's April 16, 1941,.pay-
roll. On April 16 there were from 200 to 260 employees in the units alternatively claimed
by the C. I. 0., 200 employees sought to be represented in one or two units by the Teamsters,,
and 38 employees in the unit requested by the Firemen & Oilers.
The Association relies entirely upon its contract and has submitted no other evidence
of membership whatever.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in' connection with the operations of the Company
described in Section I, above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Company and the Association desire a plant-wide unit com-
prising all employees heretofore covered by the contract between the
Company and the Association. However, the Company does not object
to the exclusion of office and clerical employees.
The C. I. O. contends for a plant-wide unit embracing those of the
Company's departments which are composed of production, mainte-
nance, and delivery employees, excluding office and clerical employees.,-,,
The Teamsters and Firemen & Oilers, on the other hand, propose
the establishment of three separate units. One of these units is to
include transportation and shipping employees.11 A second unit is. to
embrace power and maintenance employees for which the Firemen
& Oilers seeks recognition as exclusive bargaining agent. The third
unit, which the Teamsters also seeks to represent, would include the
remaining groups, collectively referred to by the Teamsters as pro-
duction employees. Office and clerical employees are to be excluded
from each of these units.
100n the basis of the classifications appearing on the Company ' s pay roll of April 16,
1941, the unit suggested by the 'C . I. O. would include the following departments :
Production and Production Delivery De- Miscellaneous
partment-men Power Department
Production Department-girls Delivery Department
Hardening Room Stores and Receiving Long Distance Delivery
Stores Garage
Stores Restaurant Department
Cabinet Department
Construction or Maintenance Depart-
ment
On July 3, 1937, the C . I. O. and the Teamsters entered into an agreement whereby the
C. I. O. was to refrain from organizing employees in "the truck industry" and "Industries
where trucking is the predominating factor" in the city of Philadelphia . In the event that
this agreement should be held to preclude the C . I. O. from organizing certain employees,
the C. I. O . proposed to exclude from the above described unit "drivers [but] not garage
employees ," it being the apparent intention to exclude transportation and shipping em-
ployees , including those in the Delivery and Long Distance Delivery Departments, and
possibly employees in the Cabinet Department who drive trucks.
11 At the hearing the Teamsters claimed for this group delivery drivers, platform men,
garage men , long-distance drivers, and employees in the Cabinet Department . The record
shows that employees in the Cabinet Department drive trucks when transporting refrigerator
cabinets to and from stores where ice cream manufactured by the Company is sold.
PHILADELPHIA DAIRY PRODUCTS CO., INC. 743
The feasibility of a single unit as contended for by the Company,
the C. I. 0., and the Association is demonstrated by the highly
integrated character of the Company's ice-cream plant. The evi-
dence in the record convincingly shows that the perishable nature
of the product, the seasonally conditioned demand, and the methods
of marketing peculiar to the ice-cream business result in a close func-
tional coherence of the several departments. However, a question
arises in respect to the power and maintenance group claimed as a sep'-
arate unit by the Firemen & Oilers. This group is largely composed
of skilled laborers.'2 These employees are not eligible to membership
in the Teamsters. The record does not disclose that any of these em-
ployees are members of the C. I. 0., nor is there any evidence apart
from the contract that they are members of the Association. Out of
38 employees in this group 11 30 have applied for membership in the
Firemen & Oilers. These employees could function either as a sep-
arate unit or as part of a single industrial unit. We shall direct an
election to be held among power and maintenance employees 'to
determine whether they wish to be represented by the Firemen &
Oilers, the C. I. 0., the Association, or by none of these organizations.
On the results of this election will depend the appropriate unit. If
these employees select a representative other than the representative
selected by the employees in the plant-wide industrial unit, they will
constitute a separate unit. If they choose the same representative as
the employees in the plant-wide industrial unit they will be merged
in a single unit with those employees.14
The Teamsters, as heretofore indicated, would divide the remain-
ing employees into two separate units, one composed of transporta-
tion and shipping employees, the other of production employees.
Employees in either of the two proposed units are eligible to mem-
bership in the Teamsters and have been organized by the Teamsters,
simultaneously and indiscriminately. Recently the C. I. O. has
likewise organized these employees without distinction as to their
duties. In view of the integration of the functions of these groups
of employees, their past bargaining history, and their recent organi-
L The employees sought to be included in this unit are listed on the Company 's pay roll
as Construction , Miscellaneous , and Power employees , who, under the wage schedule attached
to the contract of the Association , correspond to the employees specified under Maintenance
and Engineering.
13 The Regional Director ' s statement ( footnote 9, supra) shows only 32 employees in this
unit . The record, however, discloses 38 employees in the unit claimed by the Firemen &
Oilers.
14 According to the record one of the seven miscellaneous employees on the April 16,
1941, pay roll is a watchman . This employee is claimed by the Firemen & Oilers as a
maintenance man. The C. I. 0. desires to exclude watchmen from the unit. Watchmen
have had representation as maintenance employees under the contract , and their exclusion
has not been requested by the Company , the Firemen & Oilers, or the Association. We find
that watchmen are maintenance employees and we shall include them in the power and
maintenance voting unit.
'744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zation both by the, Teamsters and the C. I. 0., we are of the opinion
that they should not be separated for the purposes of collective
bargaining.
The only remaining question concerns the proposed exclusion of
certain employees from the unit or units herein. The parties are in
agreement that supervisory employees should be excluded. The.
C. I. O. specifically requests that working foremen shall not be
treated as supervisory. The other parties did not state their posi-
tions in this respect. We shall exclude from the respective unit or
units all employees above the rank of working foremen.15
The exclusion of office and clerical employees is desired by the
C. I. 0., the Teamsters, and the Firemen & Oilers. The Company
does not object to their exclusion. The Association, on the other
hand, requests that they be included for the reason that it has repre-
sented them under the contract. It is true that the contract purports
to cover all of the Company's employees excepting only those in a
supervisory capacity. Nevertheless, the separate character of the
,duties of office and clerical employees has been recognized even by
the Association in that it has failed to establish their wages under
its contract with the Company. The record contains no conclusive
evidence that any of these employees are members of or desire to be
represented by the unions involved in this proceeding. We shall
exclude office and clerical employees 16 from the units herein, in
-accordance with our usual practice.17 We shall likewise exclude the
nurse in the dispensary 18 and the trained laboratory workers 19 from
the units herein.
Employees in the printing department, engaged in printing adver-
tising matter and office staionery, are sough to be excluded by the
'C. I. O. These employees have not only been covered by the original
contract with the Association, but the wages of printers and assistant
printers have been specifically established in subsequent supplemental
wage agreements. We shall include' them in the unit comprising
production, transportation, and shipping employees.
$ The record shows that the duties of the personnel man, the only employee in the
Employment Department , are strictly supervisory . We shall exclude him from the unit.
18 Employees in the General Office , Sales Office , Advertising Department , Order Depart-
ment , and Purchasing Department appearing on the Company's April 16 , 1941 , pay roll are
considered office and clerical employees . Furthermore , the record shows that on the April
16, 1941, pay roll , two employees in the Cabinet Department , five employees in the . Garage,
and three employees in the Production Department are classified as clerical . They will
likewise be excluded.
17 Matter of Keystone Manufacturing, Company and United Toy and Novelty Workers Local
Industrial Union No. 538 of the C. I. 0., 7 N . L. it. B. 172 , and subsequent cases.
. 18 Matter of F. E. Booth & Company, at al. and Monterey Bay Area Fish Workers Union
No. 23, 10 N. L . R. B. 1491.
10 Matter of Armour & Company and Amalgamated Meat Cutters and Butcher Workmen
of North America, Local Union 413 5 N . L. R. B. 975; Matter of Southern California Gas
Company and Utility Workers Organizing Committee , Local No. 132, 10 N. L. R. B. 1123
at 1139.
PHILADELPHIA DAIRY PRODUCTS CO., INC. 745
We find that all production , transportation , and shipping em-
ployees in the Company 's ice-cream plant, including employees in the
Testaurant 20 and printing departments , but excluding employees
above the rank of foremen ( including the personnel man), office and
clerical employees in all departments , the nurse , and laboratory
workers, may properly constitute a unit appropriate for the pur-
poses of collective bargaining which would insure to the employees
of the Company the full benefit of their right to self-organization
and to collective bargaining and would otherwise effectuate the
policies of the Act . As indicated above, power and maintenance
employees ( including watchmen ), may or may not be included within
such unit , depending on the results of an election we shall order.
We shall , therefore , make no final determination of the appropriate
unit or units pending the election to be conducted among the power
and maintenance employees.
VI. DETERMINATION OF REPRESENTATIVES
The parties have made no requests concerning the pay-roll date to
be used in determining eligibility to vote in the election. However,
the Company and the Teamsters desire that seasonal or temporary
employees be not- permitted to vote. The record shows that because
of the large increase in the volume of business the Company is com-
pelled to employ a. -considerable number of seasonal employees between
the months of May and September each year. On August 10, 1941,
the Company carried on its pay roll 176 seasonal employees in addi-
tion to some 280 permanent.. employees in the' several departments.
In the past the same seasonal employees have been employed by the
Company during successive seasons whenever possible. Wage rates
of seasonal employees have been graduated with reference to time of
service, maximum rates having been granted "after 3 months in third
consecutive season" under the agreement of December 21, 1939, and
"after second anniversary of date of employment and minimum of
6 months' service" under a wage schedule agreed upon during the
current year. Under the circumstances we find that seasonal em-
ployees who have been on the Company's pay roll during both the
1940 and 1941 seasons and whose employment with the Company
totals not less than 6 months,.have interests sufficiently similar to
those of permanent employees to be entitled to participate in the
elections. We shall direct that such seasonal employees, together
with permanent employees employed during the pay-roll period im-
mediately preceding the date of our Direction of Election, shall be
p All the parties apparently agree that employees in the restaurant should be included
in the unit.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eligible to vote in the elections, subject to such limitations and
additions as are set forth in the Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the represeni-
tation of employees in the ice-cream plant of Philadelphia Dairy
Products Co.; Inc., Philadelphia, Pennsylvania, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the National Labor
Relations Act.
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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the-Board to
ascertain representatives for the purposes of collective bargaining with
Philadelphia Dairy Products Co., Inc., Philadelphia, Pennsylvania,
elections 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 Fourth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among all permanent employees in the Company's ice-
cream plant in each of the two groups described below who were
employed during the pay-roll period immediately preceding the date
of this Direction, including employees who did not work during such
pay-roll period because they were ill or on vacation or in the active
military service or training of the United States, or temporarily laid
off, and all seasonal employees who were employed during both the
1940 and 1941 seasons and whose employment with the Company
totals not less than 6 months, but excluding employees above the rank
of working foremen (including the personnel man), office and clerical
employees in all departments, the nurse, and the laboratory workers,
and employees who have since quit or been discharged for cause :
1. All power and maintenance employees, including watchmen, to
determine whether they desire to be represented by Local Industrial
Union No. 1119, affiliated with the Congress of Industrial Organiza-
tions, by International Brotherhood of Firemen, Oilers, Powerhouse
Operators, Ice Plant Employees and Maintenance Men, Local 473.
:affiliated with the American Federation of Labor, or by Aristocrat
PHILADELPHIA DAIRY PRODUCTS CO., INC. 747
Employees Protective Association for the purpose of collective
bargaining, or by none of these organizations; and
2. All production, transportation, and shipping employees in the
Company's ice-cream plant, including employees in the restaurant
and printing departments, to determine whether they desire to be
represented by Local Industrial Union No. 1119, affiliated with the
Congress of Industrial Organizations, by International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Driver Salesmen's Union, Local 463, affiliated with the American
Federation of Labor, or by Aristocrat Employees Protective Asso-
ciation for the purposes of collective bargaining, or by none of these
organizations.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.