The Borden Co.

National Labor Relations Board - Board Decisions

Jan 21, 1953

102 N.L.R.B. 460 (N.L.R.B. 1953)

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIxIE DAIRIES DIVISION' OF THE BORDEN COMPANY and INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS , LOCAL UNION No. 895, AFL, PETITIONER. Case No.
10-RC-0075. January 21,1953
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Gilbert Cohen, hear-
ing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Murdock and
Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act 2
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit comprising all wholesale and retail
milk routemen, ice cream routemen, and milk route helpers. The
Employer contends that the appropriate unit should include, in addi-
tion to those employees whom the Petitioner seeks, the milk route
reliefmen, other drivers, and production and maintenance employees.
The Employer would exclude the wholesale and retail milk routemen,
contending that they are supervisors within the meaning of the Act,
and the milk route helpers on the basis that they are casual employees.
The record discloses that there are 13 wholesale milk routemen,
9 retail milk routemen, 10 ice cream routemen, and 4 relief milk route-
men.3 All of these routemen perform the major portion of their
work away from the plant and apart from the other employees; are
separately supervised; are paid on a commission basis, whereas other
employees are paid weekly salaries or hourly wages; and are never
interchanged with other employees from other departments. Each
routeman, with the exception of the relief milk routemen, covers a
1 The name of the Employer appears as amended at the hearing.
2 The Employer contends that the Board should not assert jurisdiction because Dixie
Dairies Division is managed locally and sells all its products within the State of Georgia.
We find, however, that as the Employer is a wholly owned subsidiary , and operated as
an integral part of a multistate enterprise , it will effectuate the policies of the Act to assert
jurisdiction in this case . The Borden Company, Southern Division, 91 NLRB 628.
3 'The relief milk routemen substitute for the wholesale milk routemen in their absence
or on their days off.
102 NLRB No. 53.
D. M. STEWARD MANUFACTURING COMPANY 461
specific territory established by the milk superintendent or the sales
manager, using the Employer's trucks and equipment in making sales
and deliveries.4
From the foregoing it would appear that the routemen comprise
a homogeneous group and that a unit made up of these employees
is, prima facie, an appropriate unit .5 The Employer contends, how-
ever, that the wholesale and retail milk routemen are supervisors and
should therefore be excluded from the units The helpers, who are
high school students and work intermittently part time, assist the milk
routemen,in carrying out their duties and responsibilities as regards
the services the routemen perform for the Employer. The direction
by the milk routemen of the simple activities of their helpers is routine
in character and, in our opinion, does not exceed that of a skilled
craftsman with respect to a helper working under his direction.
Under the circumstances, we are of the opinion that the milk route-
men are not supervisors of other employees within the meaning and
intendment of the Act.1
We find that all wholesale and retail milk routemen, relief milk
routemen, milk route helpers, and ice cream routemen employed at.
the Employer's Macon, Georgia, and Albany, Georgia, plants, ex-
cluding all. clerical and professional employees, watchmen or guards,
and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
[Text of Direction of Election 8 omitted from publication in this.
volume.]
4 From these facts it is evident that the routemen are not independent contractors.
Rockford Coca -Cola Bottling Co., S1 NLRB 579 ; Puerto Rico Dairy, Inc., 99 NLRB 1013.
5 Carnation Company of Texas, 78 NLRB 519; Rockford Coca-Cola Bottling Company,
supra ; Terre Haute Coca -Cola Bottling Company, 100 NLRB 435.
8 The Petitioner contends that the reliefinen are supervisors . However, the record fails
to support this contention . The ice cream routemen do not have helpers, although they
are authorized to have them on the same basis as the milk ro itemen.
1 Atlantic Coca-Cola Bottling Company, 83 NLRB 187 ; United States Gypsum Company,
81 NLRB 182 , 184; cf . Roanoke Coca -Cola Bottling Works, Inc ., 72 NLRB 733.
8 Because the turnover of milk route helpers is approximately 251 percent every 30 days,
and because very few helpers have remained in the Employer 's employ for more than 3.
months , we find that they do not possess sufficient interest to participate in the voting.
D. M. STEWARD MANUFACTURING COMPANY and INTERNATIONAL UNION,
UNITED AUTOMOBILE WORKERS OF AMERICA, AFL, PETITIONER. CaBe
No. 10-RC-2119. January '1, 1953
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Frank E. Hamilton,
102 NLRB No. 44.