Neenah Milk Products Co.

In the Matter of NEENAH MILK PRODUCTS Co. and LOCAL #563, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN & HELPERS OF AMERICA (AFL) Case No. R-34777.-Decided February 25, 194 Jurisdiction : dairy industry. Practice and Procedure : petition dismissed where 'no appropriate unit within the scope of the petition ; single unit combining employees in fluid-milk depart- ment and employees in the condensery held inappropriate. Foster, McLeod cC Foster, by Mr. K. M. McLeod, of Fond du Lac, Wis., for the Company. Padway d Goldberg, by Mr. David Previant, of Milwaukee, Wis., for the A. F. of L. Mr. Silas L. Spengler, of Menasha, Wis., for the Independent. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On November 27, 1941, Local #563, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, affili- ated with the American Federation of Labor, herein called the A. F.'of L., filed with the Regional Director for the Twelfth Region (Milwaukee, Wisconsin) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Neenah Milk Products Co., Neenah, Wisconsin, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 12, 1942, the National Labor Relations Board, herein called the Board, acting pursuant 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. 39 N. L. R. B., No. 32. I - 191 448105-42-vol 39-14 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 14, 1942, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and,the A. F. of L., and upon Independent Workers Union of Neenah Milk Products Company, herein called the Independent, a labor organiza- tion claiming to represent employees directly affected by the inves- tigation; Pursuant to notice, a hearing was held on January 23, 1942, at Neenah, Wisconsin, before Frederick P. Mett, the Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented by counsel and participated in the hearing. 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 Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Exam- iner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT • I. THE BUSINESS OF' THE COMPANY Neenah Milk Products Co. is engaged in the operation of a con- densery and a fluid milk department at Neenah, Wisconsin. The condensery produces powdered milk; condensed milk, ice cream mix, and other milk products. During the period from July 1, 1940, to July 1, 1941, the Company purchased in Wisconsin milk valued at $451,727.05 and cream valued at $237,804.01. During the same period the Company expended $66,957.69 for sugar purchased from Wisconsin dealers and $12,701.95 for miscellaneous materials, including bottles, bottle caps, soaps, machinery, gasoline, and office supplies, more than 80 percent of which were purchased and brought to the Company's plant from points outside Wisconsin. During the same period the Company sold milk and milk products valued at $1,041,414.44. Of this amount $35,146.23 represents sales of milk, butter, etc., on retail routes. The Company's other sales of condensery products amounted to $1,006,268.21, of which the sum of $535,538.42 represents the sale of products shipped to points outside Wisconsin. II. THE ORGANIZATIONS INVOLVED Local #563, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, is a labor organization NEENAH MILK PRODUCTS CO. 193 affiliated with the American Federation of Labor, admitting to mem- bership employees of the Company. Independent Workers Uriion of Neenah Milk -Products Company is an unaffiliated labor organization, admitting to membership employees of the Company. III. THE APPROPRIATE UNIT The Company operates at Neenah, Wisconsin, a plant which com- bines the usual condensery operations with a creamery or fluid-milk department. All milk used by the Company comes to the receiving room of the condensery. A portion of this milk, bought at a premium from certain dairies supervised by the Company's field men, is designed for bottling and retail selling as fluid milk. This milk, all of which is received in the course of a half-hour during the day, is tested and weighed in the receiving room of the con- densery and pumped immediately into the fluid-milk department, a separate room in the plant. In this room it is tested, pasteurized, and bottled, by two employees, after which it is delivered to cus- tomers by the Company's drivers. These two employees and'the drivers constitute the employees in the fluid-milk department. All other milk brought to the receiving room is designed for condensery operations. Such milk is tested and weighed in the re- ceiving room, and then pumped into the condensery rooms, where. it is made into powdered milk, cheese, and other milk products. Condensery employees include the production employees in the condensery, maintenance employees, and certain fringe groups. On October 24, 1939, the Company entered into a closed-shop con- tract with the A. F. of L., covering employees in the fluid-milk de- partment. - This contract was effective until October 31, 1940, and thereafter unless terminated by thirty days' written notice. The contract was not terminated on October 31, 1940, and the parties con- tinued to operate under it thereafter,' until it was terminated by notice of the A. F. of L. on September 23, 1941. On January 3, 1941, the Company and. the A. F. of L. entered into a stipulation for a consent election to be held by the Wisconsin Employment Relations Board, herein called the State Board, among the condensery employees. On January 10, 1941, some condensery employees filed with the State Board a declaration of intention to form an independent union. On January 20, 1941, they became an organized body, the intervenor in this proceeding. On January 17, 1941, the State Board conducted an election among the condensery employees, in which they voted on two ques- ' This contract was amended on July 19, 1941 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, (1) whether or not they clesirecl to be a unit separate and distinct from the employees in the fluid-milk department and (2) whether or not they desired to. be represented by the A. F. of L. Of 21 employees eligible to vote in this election, 12 employees voted for a separate bargaining unit and for the A. F. of L. as bargaining ,representative. The Independent did not participate in this election. On January 23, 1941, the State Board certified the A. F. of L. as bargaining representative of the condensery employees. On Feb- ruary 16, 1941, the Company and the A. F. of L. entered into a con- tract covering the condensery employees, terminating on October 31,. 1941, and renewable thereafter for an additional year if no notice to terminate should be given by either party before that date. On July 16, 1941, the Independent filed with the State Board a petition for determining bargaining representatives for employees in the condensery. On September 3, 1941, the A. F. of L., having been duly notified of an election soon to be held for condensery employees by the State Board, notified the Company by separate letters that it desired to make changes in its present contracts with the Comp tny. In one letter the A. F. of L. stated that it would await the outcome of the election among condensery employees to negotiate the "very minor changes" anticipated in the agreement covering, the fluid-milk em- ployees. In its second letter the A. F. of L. notified the Company that it desired to negotiate certain changes in its agreement covering condensery employees, but would await the outcome of the election before starting negotiations with the Company respecting such em- ployees. On September 29, 1941, the State Board held an election among the Company's condensery employees. On October 20, 1941, the State Board certified the Independent as sole bargaining agent of the Company's condensery employces.2 On November 1, 1941, the Independent and the Company entered into a closed-shop contract covering the condensery employees, terminating November 1, 1942. On November 27, 1941, the A. F. of L. filed the petition in this pro- ceeding, seeking a single unit for the Company's employees, including those in the condensery and those in the fluid-milk department. In December 1941 the A. F. of L. asked the Company to bargain on behalf of all such employees. The Company refused to bargain with the A. F. of L. for the condensery employees, alleging that its con- tract with the Independent constituted a bar to a joint contract cov- ering all its employees. The record thus discloses that the employees have, in the past, bargained with the Company in two clearly defined units. Moreover, The A. F of L filed with the Circuit Court of Dane County, Wisconsin , a petition for review of this certification of representatives . At the time of the hearing the petition was pending before the Court, but no decision had been leached at that time. NEENAH MILK PRODUCTS CO. 195 on January 17, 1941, the newly organized condensery employees, whose work is confined to the preparation of milk products, expressly indicated their desire to constitute themselves a 'separate bargaining unit, distinct from employees in the fluid-milk department, whose work is restricted to the preparation and delivery of fluid milk. The A. F.'of L. thereafter contracted for such employees in a separate bargaining agreement. On September 29, 1941, the A. F. of L. par- ticipated in the election conducted by the State Board among the condensery employees. The record does not disclose that-the A. F. of L. on that occasion raised any objection with respect to the propriety of the bargaining unit." Thereafter, the Company and the Inde- pendent executed their current contract covering one such unit before the A. F. of L. filed the petition herein or notified the Company that it claimed to represent the employees in a single plant unit. Under these circumstances, we find that a single unit including employees in the fluid-milk department and employees in the condensery is not appropriate for the purposes of collective bargaining. IV. THE QUESTION CONCERNING REPRESENTATION Since the bargaining unit sought to be established by the petitioner is not appropriate, as stated in Section III above, we find that no ques- tion has been raised concerning the representation of employees of the Company in an appropriate bargaining unit. On the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF \LAW No question concerning the representation of employees of Neenah Milk Products Co., Neenah, Wisconsin, in a unit appropriate for the purposes of collective bargaining has arisen within the meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives of em- a In its letters of September 3, 1941 , noted above , the A F of L. clearly gave no indicatiop io the Company that it expected to change the bargaining unit. Although a representative of the A. F. of L testified that the A . F. of L. desired its contract for the fluid-milk em- ployees and its contract for the condensery employees to terminate on the same day, antici- pating that thereafter the A F. of L would enter into a single contract for employees in both departments , it does not appear that any such desire for a single unit was expressed until after November 1, 1941, when the Company and the Independent had entered into a contract for the condensery employees 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees of Neenah Milk Products Co., Neenah, Wisconsin, filed by Local #563, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of American (AFL), be, and it hereby is, dismissed. CHAIRMAN MILLIS took no part in the consideration of the above Decision and Order.