Beatrice Foods Co.

In the Matter o f BEATRICE FOODS COMPANY, EMPLOYER and TULSA GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 523, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L., PETITIONER Case No. 16-RC-361.-Decided Jame 24,19.49 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Evert P. Rhea, hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed., Subsequent to the hearing the Employer filed a motion to correct several errors in the transcript of the hearing. -A copy of the motion was mailed to the Petitioner. No objections to this motion have been received. Accordingly, the motion is hereby granted and the record corrected in accordance therewith. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with .this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner is a labor organization claiming to represent em- ployees of the Employer. 1 During the course of the hearing , the hearing officer received a telegram from Joplin Local #823 of the Petitioner ' s International requesting that the Employer 's out-of-town employees at Vinita, Afton, and Miami, Oklahoma, be excluded from the unit because the Petitioner was without authority to represent them. It stated that under its grant from the Inteinational Union these employees were under its jurisdiction and it was planning to file a petition to represent them. However , Joplin Local #823 made no appearance at the hearing and submitted no evidence to show that at the time of the hearing it repre- sented any of the employees involved in this proceeding . There is thus no basis for regard- ing this union as a proper intervenor in this proceeding , and it will not be accorded a place on the ballot in the election hereinafter directed . Matter of Laclede Gas Light Company, 81 N L R B 462 ; Matter of Consolidated Vultee Aircraft Corporation , 80 N. L. R. B. 116; Matter of Westvaco Chlorine Products Corporation . 63 N L R B . 763 , Matter of United States Boat Service Corporation, 55 N. L. R. B 671 The contention with respect to the unit placement of the out-of-town employees is identical to that advanced by the Petitioner and is discussed herein. 84 N. L. R B, No. 63. 512 BEATRICE FOODS COMPANY 513 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 theAct.2 4. The appropriate unit : The Petitioner seeks a unit of sales drivers (wholesale and retail), .general plant employees, engineers, truck drivers, and laboratory workers at the Employer's plant in Tulsa, Oklahoma, excluding out- of-town terminal employees, guards, clerical, professional, and all -other employees and supervisors as defined in the Act. The Em- ployer, although agreeing with the general composition of the unit, -contends that the out-of-town terminal employees should be included in the unit. In addition the case presents a question as to whether certain employees whom the Petitioner would exclude as supervisors may properly be so designated. The Employer, a Delaware corporation with headquarters in Chi- cago, Illinois, operates food processing plants and distribution out- lets in approximately 36 States. We are here concerned only with the Tulsa plant and its subsidiary operations. At this plant the -Employer gathers, processes, and distributes milk, and distributes ice cream, processed cheese, frozen foods, and some grocery specialties. Associated with this plant is a milk station at Miami, Oklahoma, a .,cottage cheese manufacturing plant at Pryor, Oklahoma, and whole- -sale and retail sales routes serving the cities of Miami, Afton, Vinita, Claremore, Pryor, Broken Arrow, Collinsville, and Sapulpa, Okla- homa, all within a radius of 100 miles from Tulsa. All of these op- erations are conducted by the Employer as an integrated whole, and -are governed by over-all management and personnel policy established by the general manager in Tulsa. The out-of-town terminal employees whose placement in the unit is in dispute include the employees at the cottage cheese manufactur- ing plant in Pryor and the salesmen whose routes are operated from -terminal points outside of Tulsa. These employees perform duties similar to those of employees in the same classifications in Tulsa, work -the same number of hours, receive the same rate of pay, vacations, sick and insurance benefits, and generally enjoy the same conditions of ,employment as Tulsa employees. The out-of-town salesmen attend sales meetings in Tulsa, are relieved by employees from Tulsa on their .days off, and at times are interchanged with salesmen servicing routes in Tulsa. All hiring, discharging, and promoting of employees is -done in the central office in Tulsa where company policies equally ap- I The Petitioner waived any right to urge any of the acts alleged to be unfair labor prac- tices in Case No 16-CA-46 as a basis for objecting to any election which may be directed in the instant case. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plicable to all employees are formulated. The out-of-town employees receive their pay checks and the trucks they use from Tulsa. The record reveals that the out-of-town terminal employees, including the supervisors, assistant supervisors, and working foremen, whole the Petitioner would exclude from the unit, were included in units covered by collective-bargaining contracts between the Employer and the Pe- titioner for the years 1946 and 1947. No contract was executed for 1948. Apparently the sole basis upon which the Petitioner desires to ex- clude the out-of-town terminal employees from the unit is the fact that these employees are under the jurisdiction of another union. However, to rely on this factor alone would, in effect, make the extent of the Petitioner's organization among the employees involved herein the controlling consideration. This we may not do.3 On the basis of the facts set forth above, and the entire record in this case, we conclude that the out-of-town terminal employees function as an integral part of the Employer's Tulsa operations and that these employees have a substantial community of interest with the employees at Tulsa. Accordingly, we shall include the out-of-town terminal employees in the unit hereinafter found appropriate .4 The Petitioner would also exclude those employees whom the Em- ployer classifies as "Supervisors" and "Assistant Supervisors." Each "Supervisor" has about four assistants and is responsible for a number of sales routes. They are primarily interested in maintaining a high rate of sales. The "Assistant Supervisors" train new salesmen, assist the regular salesmen in increasing sales, and substitute for and relieve regular-route salesmen on their days off and while they are on vacation. "Supervisors" receive $75 a month and "Assistant Supervisors" $50 per month over and above the average earnings of the salesmen under them. However, the record indicates that even with respect to such operating details as the changing of routes, both the "Supervisors" and the "Assistant Supervisors" are constantly directed by the general manager at Tulsa. Neither the "Supervisors" nor the "Assistant Supervisors" have any authority to hire, discharge, or promote em- ployees or effectively to recommend such action. We find, there- fore, that these employees are not supervisors within the meaning of the Act,5 and we shall include them in the unit hereafter found appropriate. 3 Section 9 (c) (5) of the amended Act, provides • "In determining whether a unit is appropriate for the purposes specified in subsection (b) the extent to which the employees have organized shall not be controlling" See Matter of C Pappss Company, Inc, et a,l, 80 N L R B 1272. 4 Matter of National Brands, Inc, 81 N L R B 1168 G Matter of Leopold Adler Company, 82 N L. R B 482; Matter of The Borden Com- pany, Case No. 16-RC-256, supplemental decision of April 7, 1949. BEATRICE FOODS COMPANY 515 The Petitioner also contends that the working foremen in the plant are supervisors. These foremen have four or five employees working under them, and are responsible for carrying the work forward. How- ever, they exercise little if any independent judgment, and have no authority to hire, discharge, promote employees, or effectively to recommend such action. We find that the working foremen are not supervisors within the meaning of the Act, and we shall include them in the unit hereinafter found appropriate. We find, therefore, that all sales drivers (wholesale and retail), general plant employees, engineers, truck drivers, and laboratory workers at the Employer's plant in Tulsa, Oklahoma, including out- of-town terminal employees, working foremen, and those employees designated as "Supervisors" and "Assistant Supervisors," but exclud- ing guards, clerical, professional, and all other employees and super- visors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION 6 As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this hearing was held and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been re- hired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to deter- mine whether or not they desire to be represented for purposes of collective bargaining, by Tulsa General Drivers, Warehousemen and Helpers, Local Union No. 523, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, A. F. L. 6If the petitioner does not wish to participate in an election for the unit herein found appropriate , it may withdraw its petition filed in this proceeding upon notice to that effect given to the Regional Director in writing within ten ( 10) days from the date of the Direc- tion of Election herein See Matter of Eisner Grocery Company, 72 N. L. R B. 721.