Blue Ribbon Creamery

BLUE RIBBON CREAMERY 201 manager who has unlimited authority in regard to the hire and dis- charge of employees at the Jacksonville plant. While general labor policies are initiated and formulated at the Crawfordsville plant, the local manager of the Jacksonville plant has authority to adjust these policies to local conditions, determine wages of individual employees, and fix the hours of employment of the various shifts at the Jackson- ville plant. All the nonsupervisory and nonoffice employees are paid at the Jacksonville plant and their payroll records are maintained there. In addition to these factors, there is no history of collective bargaining on a two-plant basis 4 and no labor organization is seeking certification on that basis.' In view of all these circumstances we find that the unit sought by the Petitioner confined to the Jacksonville, Florida, plant is-appro- priate. We find, therefore, that a unit composed of all production and main- tenance employees at the Employer's Jacksonville, Florida, plant in- cluding the stock clerk, 'over-the-road truck driver, and two watchmen,° but excluding the foremen, assistant foremen, executive, professional and clerical employees, guards, and supervisors as defined by the Act is an appropriate unit for collective bargaining purposes within the meaning of Section 9,(b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 4 There is evidence that prior to the establishment of the Jacksonville, Florida, plant, the employees of the Crawfordsville, Indiana, plant were represented by the United Steelworkers, CIO, but at the time of the establishment of the Jacksonville plant the latter union had ceased representing the employees of the Crawfordsville plant. c Although the extent of the Petitioner's organization becomes thus partly involved the Board is not precluded from taking this factor into consideration where, as here, it Is not given controlling weight Stow and Davis Furniture Co., cited supra. 6 The manager of the Jacksonville plant testified that the two watchmen devote approxi- mately 50 percent of their time to monitorial duties and the remaining 50 percent to production activities. These watchmen are not uniformed, deputized, or armed Since they do not devote more than 50 percent of their time to monitorial duties, we shall include them in the unit. Wiley Mfg., Inc, 92 NLRB 40. BLUE RIBBON CREAMERY and UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, CIO, PETITIONER. Case No. 15-RC-477. May 2, 1951 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 Robert B. Stark, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 94 NLRB No. 44. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Reynolds]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Employer and Local 891, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein called the Intervenor, assert that their current contract is a bar to this proceeding. The Petitioner denies this assertion, on the ground, among others, that the contract contains an illegal union- security clause. The contract clause reads as follows : The Company shall have the sole and, exclusive right to em- ploy its workers from whatever source it deems advisable. New regular employees and present employees, who are not pres- ently members of the Union, but come within the jurisdiction of the Union after the effective date of this Agreement must make immediate application for membership in the Union, and become a member within thirty (30) days. It is a continuing condition of employment with the Company that employees cov- ered by this Agreement, both present employees and new em- ployees, shall be and remain members in good standing of the Union. Persons losing their membership in the Union shall not be retained in the employ of the Company. Clearly, the contract makes membership in the Intervenor a con- dition of employment. In disregard of the proviso of Section 8 (a) (3) of the Act, however, the contract does not accord to all the em- ployees subject to its coverage the statutory 30-day period allowed for becoming union members after the effective date of the contract. As the clause, by its terms, allows this grace period to new employees and to old employees who were not union members when the contract was executed, it implicitly denies it to those other employees who had joined the union earlier.' Because this union-security clause falls short of the requirements of Section 8 .(a) (3), we must reject the contract bar contention.2 ' We note that the preceding contract between the Employer and the Intervenor also made membership in that union a condition of employment. 2In view of this finding, we deem it unnecessary to pass upon the other contentions attacking the validity of the contract as a bar. _ BLUE RIBBON CREAMERY 203 Accordingly, we find that a question affecting commerce exists concerning the employees of the Employer within the-meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The parties are generally in agreement upon a unit of all pro- duction and maintenance employees at the Employer's main plant at Jackson, Mississippi . They disagree as to route salesmen and helpers stationed at three substations , certain employees at two weigh- ing and cooling stations , and office clerical employees . Principally because all these employees have been excluded from prior collec- tive bargaining agreements, the Petitioner, over the other parties' ob- jection, would exclude them now. The Employer is engaged in processing and distributing milk and milk products. At its main plant in Jackson, Mississippi, it both processes and sells the products; here, it employs production and maintenance employees and retail store employees, shipping clerks, truck drivers, and route salesmen . In addition, the Employer main- tains small installations in five other communities. At these loca- tions it has route salesmen, helpers, and weighers. Three of these substations are used only for distributing and selling the milk; the other two are bulk storage stations where raw milk is weighed and cooled and prepared for shipment to the Jackson plant. The route salesmen, stationed at the substations , and their helpers, do the same work as employees in the same categories working in or out of the main plant . They are supervised by the Jackson plant and enjoy the same wages , vacations, and general conditions and bene- fits as the main plant employees . Similarly, the weighers at the sub- stations are subject to the sane supervision and working conditions as employees at Jackson, and have identical tasks as the weighers located there. On these facts it is clear that the substation employees have essentially the same interests and working conditions as those at the main plant and that the two groups properly belong in the same bargaining unit. r, -or a number of years, the main plant employees have been repre- sented in collective bargaining in the successive contracts between the Employer and the Intervenor. As set forth above, the Petitioner asserts that the substation employees have been excluded from these contracts and therefore may not be included in the unit at present. The Intervenor argues that these employees have been included in past bargaining; in its brief, however, it admits that they have not been covered by the contract. We find it -unnecessary to resolve this dispute among the parties. If, in fact, the employees here in dispute had been excluded from past bargaining, they would at best be entitled to a self-determination election before being added to the established 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit.3 However, as a question concerning representation now exists among the main plant employees, Board policy requires inclusion of the substation employees in the same voting group with the employees of the existing unit.4 Accordingly, we shall include the substation employees in the unit hereinafter found appropriate. At the main plant there are seven office clerical employees. Five of them work on the second floor of the plant, apart from the produc- tion workers. The others, who work on the main floor, are separated from the production employees by a partition. These office clericals perform stenographic and bookkeeping tasks, and act as cashiers and billing clerks. Again, the Intervenor requests the inclusion of these employees on the ground that they have been represented as part of the production and maintenance unit in the past. But the record does not support this assertion. It does appear that the office clericals authorized dues deductions in favor of the Intervenor, but it was not shown that they were included in past contracts, or that the Inter- venor bargained on their behalf. In any event, without regard to any bargaining history among the office employees, it is clear that as office clericals their interests and working conditions are distinctly different from those of the production and maintenance workers. In accordance with established Board policy, we shall therefore ex- clude them from the unit.5 We find that all production and maintenance employees, retail store employees, shipping clerks, truck drivers and helpers, weighers, and route salesmen and helpers, employed in and about the Employer's Jackson, Mississippi, plant and at its Newton, Wesson, Natchez, Green- ville, and Vicksburg, Mississippi, substations, but excluding guards, watchmen, professional employees, office clerical employees, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. Each summer, during the height of the "ice cream season," the Employer hires from two to four temporary employees, generally laborers, who work on an average of about 60 days per year. Al- though these employees were referred to at the hearing as "seasonal," the record shows that the Employer considers them to be temporary employees. No claim was made, and nothing in the record suggests, that these employees can reasonably expect to be rehired from year to year. We construe the request of the Employer and the Intervenor that these employees be excluded from the units as raising an eligi- $ Great Lakes Pipe Line Company, 92 NLRB 583. Waterous Company, 92 NLRB 76. 6 Assoccated Wholesale Grocers, Inc., 92 NLRB 542 ; Columbia Products Company, 92 NLRB No 54. F. B. ROGERS SILVER COMPANY 205 bility issue. As they are temporary employees, we find, in accordance with Board practice, that they do not have a sufficient interest in the selection of a bargaining representative, and that they are, therefore, ineligible to cast ballots in the election directed herein .6 [Text of Direction of Election omitted from publication in this volume.] Vetter Manufacturing Company, 92 NLRB No. 21; of. Comico Products Corporation, 90 NLRB No. 159. F. B. ROGERS SILVER COMPANY and PLAYTHINGS, JEWELRY AND NOVELTY WORKERS INTERNATIONAL UNION, CIO, PETITIONER. Case No. 1-RC-1445. May I, 1951 Supplemental Decision , Order, and Second Direction of Election On May 26, 1950, pursuant to a Decision and Direction of Election issued by the Board on May 2, 1950,1 an election by secret ballot was conducted under the direction and supervision of the Regional Di- rector for the First Region, among the employees of the Employer in the unit found appropriate in said Decision. Upon completion of the election, a tally of ballots was furnished to the parties. The tally showed that of the approximately 146 eligible voters, 141 cast ballots, of which 55 were for the Petitioner, 72 were against the Petitioner, 13 were challenged, and 1 was void. On June 2, 1950, the Petitioner filed objections to the conduct of the election and to conduct affecting the results of the election. There- after, on August 17, 1950, following an investigation, the Regional Di- rector issued his report on objections, in which he reported that sub- stantial and material factual issues had been raised in the course of his investigation, both with respect to the objections of the Petitioner and with respect to certain other matters developed in the course of the investigation. The Regional Director recommended that a hear- ing be held to resolve such issues. On September 1, 1950, the Em- ployer filed exceptions to the Regional Director's report, and requested that the objections of the Petitioner be overruled. On October 10, 1950, the Board, upon consideration of the Regional Director's report and the exceptions thereto, issued an Order in which it : (1) Remanded the proceeding to the Regional Director for the purpose of holding a hearing on the issues raised by the Petitioner's objections; (2) directed that the hearing officer prepare and serve upon the parties a report containing findings of fact, conclusions, and recom- ' Unpublished. 94 NLRB No. 49.