Tip Top Creamery Co.

In the Matter of TIP TOP CREAMERY COMPANY and UNITED CANNERY, AGRICULTURAL, PACKING & ALLIED WORKERS OF AMERICA, CIO Case No. R-4864.-Decided March,15,1943 Jurisdiction : dairy products manufacturing and distributing industry. Investigation and Certification of Representatives : existence of question : fail-, ure to reply to petitioner's request for recognition ; contract, the terms'of which were orally agreed upon prior to notice of a rival claim of representation, but were not reduced to writing until after such notice, held no bar ; election necessary. - Unit Appropriate for Collective Bargaining : two-plant unit, comprising produc- tion and garage employees, drivers, and driver salesmen, found appropriate notwithstanding request of the company and one of the labor organizations in- volved for a 12-plant unit. Mr. William G. Karnes, for the Company. Messrs. Herschel Lile and Howard L. McNamara, both of Indian- apolis, Ind., for the Canners. Messrs. John A. Ramsey and J. M. Casey, both of Indianapolis, Ind., for the Teamsters. Mr. David V. Easton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Cannery, Agricultural, Packing & Allied Workers of America, C. I.O., herein called the Canners, alleg- ing that a question affecting commerce had arisen concerning the rep- resentation of employees of Tip Top Creamery Company, Vincennes, Indiana, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Frank M. Kleiler, Trial Examiner. Said hearing was held at Vin- 'cennes, Indiana, on February 11, 1943. The Company, the Canners, and International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local Unions No. '417 and 644, herein col- lectively called the Teamsters, appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-exam- 48 N. L. R. B., No. 13. - 57 58 DEICISIONS OF NATIONAL, LABOR RELATIONiS BOARD ine witnesses, and to introduce evidence bearing on the issues. During the hearing the Company and the Teamsters moved to dismiss the peti- tion of the Canners on the grounds that (a) there was a presently existing contract between the Company and the Teamsters, (b) the unit should be company-wide, and (c) the showing made by the Canners was inadequate. The Trial Examiner referred this motion to the Board for a decision. At the hearing, the Trial Examiner rejected certain exhibits offered in evidence by the Teamsters. Subsequent to the hearing, a motion was made by the Teamsters to reopen the record to permit said exhibits to become a part thereof. For reasons appearing below, the motions of the Company and the Teamsters to dismiss the petition of the Canners and the motion of the Teamsters to reopen the record to permit the inclusion of the above-mentioned exhibits are hereby denied. The Trial Examiner's rulings'made at the hearing are free from preju- dicial error, and are hereby affirmed. The Company, the Canners, and the Teamsters filed briefs which were considered by the Board. Upon the entire record in the case, the-Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Tip Top Creamery Company, an Indiana corporation with executive offices in Vincennes, Indiana, is engaged in the processing of milk and cream into various dairy products, and in the distribution and sale, both wholesale and retail, of milk, cream, dairy products, and other food products in Vincennes, Indiana, and its vicinity. The Company operates 11 sales branches in Bicknell, Jasper, Paoli, Princeton, Sul- livan, and Washington, all in the State of Indiana, and Carmi, Flora, Lawrenceville, Olney, and Mount Carmel, all in the State of Illinois. In addition, the Company operates country sales routes serving com- munities surrounding the sales branches. The Company, ,as of the pay-roll date immediately preceding the date of the hearing herein, employed 263 persons, of which approximately 165 are employed at Vincennes. All of the processed or manufactured products sold by the sales branches are processed or manufactured at the Company's plant at Vincennes, Indiana; these products are transported to the various sales branches. The Company admits that it is engaged in commerce with- in the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED United Cannery, Agricultural, Packing & Allied Workers of Amer- ica,-is a labor organization affiliated with the Congress of Industrial TIP TOP CREAMERY COMPANY 59_ Organizations, admitting to membership employees of the Company. International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers.of America, Locals 417 and 644, are labor organiza- tions affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On March 24, 1941, the Company and the Teamsters entered into a "union-shop" contract covering all the classifications of employees contained in the unit hereinafter found appropriate, engaged at the Flora, Illinois, and Vincennes, Indiana, plants. Said contract pro vided that it was to "remain in ... effect .. from the 11th day of February 1941, to the 10th day of February 1943. Thereafter, this agreement shall be construed as the working agreement from year to year, providing neither party notifies the other party in writing to change this agreement at least thirty •(30) days prior to expiration ...." On September 14, 1942, the Company and the Teamsters orally agreed to modify the above-mentioned contract with respect to wage provisions and commenced negotiations. In the course of these nego- tiations, which covered several months, both parties agreed upon sub- stantial changes other than wages. The Canners, by letter dated September 1, 1942, notified the Com- pany of its majority claims concerning the Vincennes, Indiana, plant, and requested recognition. The Company did not reply, but con- tinued the negotiations with the Teamsters. On September 24, 1942, ,the Canners filed a' petition with the Regional Office of the Board.' Upon advices by the Regional Office that the contract of_ March 24, 1941, constituted a bar to any proceeding at that time, the petition was withdrawn. On October 21, 1942, the Company was notified by the Regional Director that the petition was withdrawn. Meanwhile nego- tiations between the Company and the Teamsters had been and still were continuing: On December 29, 1942, the negotiating parties verbally agreed, subject to ratification by the employees involved, upon a new contract on all points'save wages. With regard to wages, the Company made a proposal to the Teamsters, apparently covering all employees in the classifications included within existing contracts 2 with the understanding that if this 'were unsatisfactory, the question of wages was to be 'submitted to arbitration. On December 31, 1942, the Company received a letter from the Canners again notifying it of its claims. The Company did not reply. On January 4, 1943, the em- ployees ratified the oral agreement reached on December 29, and at the same time notified their representatives that they wished to have 1 Case No XI-R-655., 2 As will be noted hereafter, there were several contracts between the Company and the Teamsters, covering different sales branches of the Company , all modeled on the contract of March 24, 1941. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the question of wages submitted to arbitration. 'The Company was notified of these actions by a letter from t representative of the Team- sters on January 5, 1943. The following day. (January 6), the Com- pany received notification that the petition in the instant case had been filed. On January 13, 1943, the contract orally agreed upon December 29, was executed and made effective as of January 1. On the same date, a joint request for arbitration of the wage question was made by the contracting parties, and an arbitration agreement executed by them. On February 3, 1943, the Company received a notice of hearing. in the instant proceeding. The Company and the Teamsters contend that the contract executed January 13, 1943, but effective as of January 1, and orally agreed upon December 29, 1942, constitutes a bar to this proceeding. We do not agree with this contention. We have recently held that a collective bargaining agreement which has not been reduced to writing and signed before the assertion of a rival union's claim does not constitute a bar to a determination of representatives.3 In the instant case the oral agreement was reached on December 29, but the written contract was not executed until January 13, 1943; the Canners gave notice of its claim by a letter which was received by the Company December 31, 1942. Since the Canners asserted its claim prior to the execution of the new contract it does not constitute a bar to a present determination of representatives. A statement of the Regional Director, introduced in evidence at the hearing, indicates that the Canners represents a substantial number of employees in the unit hereinafter found appropriate.4 We find that a question affecting commerce has arisen concerning the representation of-employees of the Company within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT All parties agree that the unit should consist of production and garage employees, driver salesmen, and drivers. All parties stipulated that the superintendents or foremen, watchmen, office workers, and any officers and other persons' connected with the management of the Company should be excluded. 31n Matter of Eicor, Inc. and District No. 8, International Association of Machinists, A. F. of L., 46 N. L. R. B. 1035, the Board stated in support of this holding , "expe- rience has indicated that a true stability of labor relations is not attained until collective agreements have been reduced to writing and signed." See also Matter of Joseph P. Cattie, Brother, Inc. and International Union, Mine, Mill and'Smelter Workers, C. I. 0., 47 N L R B-81. 4 The Regional Director reported that the Canners submitted 44 designation cards bear- ing apparently genuine signatures , and containing names of persons appearing on the Company's pay roll of January 22, 1943 Said pay roll contained 128 employees within, the appropriate unit. The Teamsters were not requested to submit evidence of their interest inasmuch as it had a contract with the Company covering employees in the appropriate unit. TIP TOP CREAMERY COMPANY 61. The parties are not. in agreement with regard to the scope of the unit. The Canners, in its original petition, sought to include employees at the Vincennes plant only. During the hearing, it amended its petition to include the Flora sales branch also. The Company and the Teamsters contend that the Vincennes plant together with the 11 sales branches constitute an appropriate unit. This contention is based upon past contractual history and upon the similarity of duties and conditions of employment of the employees at all the plants operated by the Company and the interchangeability of personnel between the plants. - Although the record discloses several instances of interchangeability of the Company's employees, it contains no evidence that this is the common procedure. Furthermore, the record discloses that seniority rights apply interchangeably only between the Flora and Vincennes plants. The history of contractual relations between the Company and the Teamsters dates back to 1938, when after a consent election, the two parties executed a contract covering the Vincennes and Flora plants.5 In February 1939, the Teamsters asserted a .,majority claim for the employees at the Carmi plant of the Company. Thereupon the Company executed a contract with the Teamsters covering this plant as a unit. From time to time thereafter, upon presentation of majority claims, the Company executed agreements covering additional plants. At the time of negotiations resulting in the contract executed January 13, 1943, the Teamsters had contracts with the Company covering the Carmi, Washington, Jasper, and Princeton plants separately, and the Vincennes and Flora plants as one unit. The remaining six plants of the Company have never been covered by contract. All the con- tracts were substantially the same, based upon the contract covering Vincennes and Flora. All contracts were between the Company and the Teamsters' Local 417, with the exception of Princeton; with regard to the latter the Company executed a contract with Local 644 of the Teamsters. All contracts, save the Princeton contract, were usually negotiated together. In view of the above, we are of the opinion that although the con- tracts provide for similar teratment to'all employees of the Company, the contracting parties themselves have treated the various plants cov- ered by contract as separate units. Furthermore, although the wage proposals made by the Company in the negotiations resulting in the January 1943 contract were to be extended to' all employees of the Company, the contract, in, fact, was limited to the employees at the Vincennes and Flora plants: We note also, that the employees in six The consent election concerned only the employees of the Vincennes plant. However, the Teamsters submitted proof of its representation of a majority of the employees at the Flora plant and they were included within the contract. 62 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD - of the plants have not been covered by contract.' In view of the fore- going, we find that all production-and garage employees, driver sales- men, and drivers employed at the Company's- plants located at Vincennes, Indiana, and Flora, Illinois, excluding all superintendents and foremen, watchmen, office workers, officers, and other persons con- nected with the management, constitute a unit-appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed, during the pay-' roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series-2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Tip Top Creamery Company, Vincennes, Indiana, an election 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 Eleventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed 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 at the polls, but excluding those employees who have since quit'or been discharged for cause, to-determine whether they desire to be represented by United Cannery, Agricultural, Pack- ing & Allied Workers of America, affiliated with the Congress of In- dustrial Organizations, or by International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, Local 417, affili- ated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. - U The Teamsters offered as exhibits petitions purportedly signed by a majority of the employees at two plants not covered by contract. These exhibits were rejected by the Trial Examiner. His ruling is affirmed since the , petitions were not material to- the question of whether or not the.Flora and Vincennes plants constituted an appropriate unit.