Land O' Lakes Dairy Co.

In the Matter of LAND O' LAKES DAIRY COMPANY and GENERAL DRIVERS UNION No. 662 , A. F. OF L. - Case No. R-50-113.-Decided April 8, 1943 Jurisdiction : dairy products manufacturing industry ; company's motion that Board should divest itself of jurisdiction because of prior jurisdiction exer- •cised by a State Labor Relations Board, denied. Investigation and Certification of Representatives : existence of question: re- fusal to recognize petitioner until certified by the-Board; election necessary. Unit Appropriate for Collective Bargaining : all monthly paid'production and maintenance employees, including engineers, pen operators, truck drivers, drier operators, clean-up men and helpers, but excluding the manager, the foreman, and the office man; stipulation as to. Messrs. Ralph AS. Lund, of Whitehall, Wis., and. E. G. Vaughan, of St. Paul, Minn., for the Company. Mr. Roy E. Barnes, of Eau Claire, Wis., for the Union. Mr. David V. Easton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon the petition duly filed by General Drivers Union No. 662, A. F. of L., herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Land 0' Lakes Dairy Company, Whitehall, Wisconsin, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Clarence A. Meter, Trial Examiner. Said hearing was held at Whitehall, Wisconsin, on March 23, 1943. The Company and the Union appeared, participated, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. The Company made a motion to -dismiss the petition herein on the ground that proceedings had already been started by the Wisconsin Employment Relations Board, herein called the WERB. ' This motion was referred to the Board. For reasons appearing below, the motion is denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 48 N. L. R. B., No. 123. 1028' LAND O'LAKES DAIRY COMPANY 1029 Upon the entire record in the case, the Board makes the following FINDINGS, OF FACT I. THE BUSINESS OF THE COMPANY Land O'Lakes Dairy Company," a Minnesota corporation licensed to conduct business in Wisconsin, is engaged in the manufacture of powdered skimmed milk and buttermilk. For this purpose it operates two plants, one in Whitehall, Wisconsin, and the other in Milaca, Min- nesota. We are concerned herein with the Company's operations at Whitehall. The Whitehall plant receives its raw products consisting of buttermilk and skimmed milk from 17 member creameries, all lo- cated in Wisconsin. The finished products, amounting to 2,600,000 pounds of powdered skimmed milk and buttermilk between September, 8, 1942, and March 23, 1943, are valued between $360,000 to $370,000, and are destined for the United States Government under Lend Lease control. We find that the Company is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED General Drivers Union No. 662 is a labor organization affiliated with the American Federation of Labor, admitting to membership em- ployees of the Company! III. THE QUESTION CONCERNING REPRESENTATION On January 27, 1943, the Union requested, by letter, recognition from the Company as the sole bargaining representative of its em- ployees. On February 1, 1943, the Company replied that it would not recognize the Union unless and until it was properly certified. There- after, on February 8, the Union proposed a consent election to be held under Board auspices, and forwarded a stipulation to this effect. The Company did not reply to this proposal. On or about March 1, 1943, -the Company filed a representation petition before the WERB which held a hearing thereon on March 16, 1943. The decision of the WERB has not as yet been issued, due to the intervention of the present pro- ceeding. As noted herein, the Company made a motion at the hearing in the instant case to dismiss the petition on the ground that the WERB,had prior jurisdiction. We do not believe that the Board should divest itself of jurisdiction in this proceeding,2 and accord- ' The Company herein is a subsidiary of Land 0' Lakes Creameries, Inc. ' The Supreme Court , in Consolidated Edison Company v. N L R B., 305 U. S. 197 , stated, at page 224 : "The exercise of the federal power to protect interstate and foreign commerce from injury does not depend upon a clash with state action and need not await the exer - cise of state authority " See Matter of Northern States Power Company of Wisconsin and District 50, United Mine Workers of America, C. I. 0, and International Brotherhood of Electr ical Workers, A. F. of L., 37 N L. R B 991 ; Matter of Thompson Products, Inc., and International Union, United Automobile Workers of America, affiliated with the C. 1. 0., 35 N L. It. B. 823; Matter of Waterman-Waterbury Company and United Electrical Radio and Machine Workers of America, Local 1140, C. 1. 0., 38 N. L. R. B. 331. 1 1030 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD ingly we hold that the motion of the Company to dismiss the petition should be, and it hereby is, denied. A statement of the Field Examiner, introduced into evidence at the hearing, indicates that the Union represents a substantial num- ber of employees in the unit hereinafter found appropriate .3 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 In accordance with a stipulation of the parties, we find that all monthly paid 4 production and maintenance employees of the Com- pany, including engineers, pen operators, truck drivers, drier oper- ators, clean-up men and helpers, but excluding the manager, the foreman, and the office man, constitute a unit appropriate" for the purposes 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 eln- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of our Direction of Elec- tion, subject to the limitations and additions set forth therein. 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 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 Land 0' -Lakes Dairy Company, Whitehall, Wisconsin, 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 super- vision of the Regional Director for the Eighteenth Region, acting in this matter as agent for the National Labor Relations Board, and 3 The Field Examiner reported that the Union submitted 25 application cards containing apparently genuine original signatures. Twenty-two signatures contained on these cards are the names of persons appearing upon the Company's most recent pay roll which was submitted by the Company on March 13, 1943, and contains the names of 29 persons within the appropriate unit. 4 It was disclosed at the hearing that the Company employs several hourly paid employees on a temporary basis. These persons are expressly excluded from the unit. LAND O'LAKES DAIRY COMPANY 1031 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 any such 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 any who have since quit or been discharged for cause, to determine whether or not they desire to be represented by General Drivers Union No. 662, affiliated with the American Federation of Labor, for the purposes of collective bar- gaining. 11