Wells Dairies Cooperative

National Labor Relations Board - Board Decisions

Sep 21, 1954

109 N.L.R.B. 1450 (N.L.R.B. 1954)

1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WELLS DAIRIES COOPERATIVE and RETAIL, WHOLESALE, AND DEPART-
MENT STORE UNION, CIO, PETITIONER . Case No. 10-RC-2717.
September 21,1954
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 John C. Carey, Jr., hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record 1 in this case, the Board finds :
1. The Employer contends that the Board should decline jurisdic-
tion over this case because (1) its business is an essentially local enter-
prise and (2) the employees sought are agricultural laborers.2
Similar contentions were recently rejected by the Board in a case
involving the same parties.' For reasons there stated, we find that
the employees sought are not agricultural laborers. As the Employer
makes direct out-of-State sales in excess of $50,000 per year, we find
that the Employer is engaged in commerce, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
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 of driver-salesmen and their helpers
at the Employer's Columbus, Georgia, plant.4 The Employer con-
tends that the unit sought is inappropriate because (a) the helpers
i The request by the Employer for oral argument is hereby denied, as the record and
the Employer's brief, in our opinion , adequately present the issues and the positions of
the parties.
2 The Employer also contends that the petition should be dismissed on the grounds that
(1) there is no showing that the Petitioner has complied with the filing requirements of
Section 9 ( f), (g), and (h) of the Act and (2) the Petitioner' s waiver of pending unfair
labor practice charges against the Employer was not placed in evidence at the hearing.
As regards (1), it is the established policy of the Board that matters of compliance with
the filing requirements of the Act may not be litigated by the parties in a representation
or complaint proceeding , but must be presented to the Board for its consideration in a
collateral proceeding . Coca-Cola Bottling Company of Louisville , Inc., 108 NLRB 490.
As regards ( 2), the purpose of the waiver is to preclude the Petitioner from urging the
unfair labor practices alleged in the charges as a' basis for setting aside the election
directed herein As the requirement that such a waiver be filed in a representation case
is therefore solely for the protection of the Board's processes , the question of compliance
with such requirement is a matter for administrative determination , not litigable by the
parties.
3 Wells Daisies Cooperative, 107 NLRB 1445.
It was stipulated at the hearing that evidence regarding these employees adduced in
the prior case concerning the parties ( Wells Dairies Cooperative , supra ), was still applica-
ble and should be considered by the Board in addition to the evidence presented in the
instant case . We hereby take official notice of that proceeding.
109 NLRB No. 204.
WELLS DAIRIES COOPERATIVE 1451
are employees of the driver-salesmen and not of the Employer, and
(b) the driver-salesmen are supervisors.' The Employer also asserts,
as a secondary position, that -the driver-salesmen and helpers at its
Thomaston, Georgia, branch distribution plant should be included in
any unit found appropriate -here.
The Employer employs at its Columbus plant approximately 50
driver-salesmen. Twenty-seven of these each has a single helper and
2 have 2 helpers apiece. A driver-salesman drives a truck in which
he delivers the Employer's products to customers on his route; he also
makes collections and solicits new business. Some driver-salesmen
have retail, and others wholesale, routes. There is no distinction be-
tween the conditions of employment of retail and wholesale driver-
salesmen. The driver-salesmen are divided into six groups, with a
supervisor in charge of each group. The driver-salesmen receive
monthly salaries plus comissions.s
Each driver-salesman is free to hire a helper whenever he feels
that he needs one. Although the driver-salesman may discipline or
discharge his helper, helpers have also been discharged by the super-
visor of driver-salesmen. The driver-salesman determines the num-
ber of hours worked and the rate of pay of his helper.7 The Em-
ployer actually pays the helper, although the amount is deducted
from the driver-salesman's commission. If the amount of the com-
mission owed to a driver-salesman at the end of the month is insuf-
ficient to pay his helper's wages, the Employer makes up the dif-
ference and is not reimbursed by the driver-salesman. Last Decem-
ber, the Employer paid the helpers a Christmas bonus. The Em-
ployer also pays social-security taxes, workmen's compensation, and
unemployment insurance contributions on account of the helpers,
and deducts their income taxes from their wages. In view of the
foregoing, and upon the record as a whole, we find that the helpers
are employees of the Employers and we shall include them in the
unit.
5 The Employer also contends that the Petitioner may not represent the driver- salesmen
and their helpers because, as the Board has previously found that these employees may
not appropriately be included in the unit of production and maintenance employees which
the Petitioner now represents (Wells Dairies Cooperative, supra), the Petitioner "will
achieve by indirection that which the Board has already prohibited." We find no merit in
this contention. The Board's previous decision was based on the lack of a community of
interest between the driver-salesmen and their helpers, on the one hand, and the produc-
tion and maintenance employees, on the other. We do not perceive any valid reason why
the Petitioner may not appropriately represent both groups in separate units.
9 However, three of the drivers and their helpers are paid straight salaries by the
Employer.
7Three driver-salesmen, whose routes cross the Alabama line, are required to pay their
helpers the minimum wage set by Federal law. The Employer contributes to the wages of
such helpers to the extent necessary to meet the Federal standard.
8 O. Z. Hall Motors, Inc., 94 NLRB 1180 at 1181-1182; Shell Oil Company, 90 NLRR
371; Wade & Paxton, 89 NLRB 829 at 831.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As regards the alleged supervisory status of the driver-salesmen, the
record clearly shows that their direction of the helpers is routine
in nature and we are of the opinion that their authority is akin
to that of a skilled craftsman with respect to a single helper under his
direction . Under all the circumstances , including the fact that each
normally has only one helper, we are of the opinion that driver-sales-
men are not supervisors of "employees" within the meaning of the
Act,9 and we shall include them in the unit.
Thomaston, Georgia, branch distribution plant: The Petitioner
does not seek to represent the 4 driver- salesmen and their 4 helpers who
work out of the Thomaston branch distribution plant. As stated
above, the Employer contends that the driver-salesmen and their
helpers should be included in any unit found appropriate here.
In view of the fact that Thomaston is 60 miles from Columbus and
in view of the lack of interchange of employees between the 2 plants,
we find that the Columbus plant constitutes, a separate appropriate
unit. We shall therefore exclude the driver-salesmen and their help-
ers at the Thomaston plant from the unit.
We find that the following employees constitute a unit appropri-
ate for purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act : All driver-salesmen and helpers at the Em-
ployer's Columbus, Georgia, plant, excluding all other employees and
supervisors within the meaning of the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS PETERSON and BEESON took no part in the consideration
of the above Decision and Direction of Election.
9 Atlanta Coca-Cola Bottling Company, 83 NLRB 187, 189.
FORT WORTH STOCKYARDS, A DIVISION OF UNITED STOCKYARDS COR-
PORATION , AND FORT WORTH LIVESTOCK HANDLING COMPANY' and
STOCKYARD WORKERS ASSOCIATION OF AMERICA, PETITIONER., Case
No. 16-RC-1485. September 22,1954
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Lewis B. Ward, hear-
i Although the petition names as the Employer only Fort Worth Stockyards , a Division
of United Stockyards Corporation, the notice of hearing was also sent to Fort Worth
Livestock Handling Company, and a single appearance was filed on behalf of both com-
panies. Fort Worth Livestock Handling Company is a wholly owned subsidiary of United
Stockyards Corporation, and together they operate the facilities involved herein. They
have in the past acted jointly for collective- bargaining purposes . On the Board's own
motion, the formal papers in this proceeding are hereby amended to show the name of
the Employer as listed in the caption above.
109 NLRB No. 198.