Great Northern Icing Co.

-In the Matter of GRE IT NORTHERN ICING COMPANY, EMPLOYER and UNITED PACKINGHOUSE WORKERS OF AMERICA, LOCAL UNION No. 321, CIO, PETITIONER In the Matter of A. T. MILLER AND ESTATE OF ADDISON MILLER, D/B/A ADDISON MILLER COMPANY, EMPLOYER and UNITED PACKINGHOUSE WORKERS OF AMERICA, LOCAL UNION No. 321, C%IO, PETITIONER ,Cases Nos. 19-R-1681 and 19-R-18.55, respectively.Decided August 26,1946 Mr. M. J. Schiffer, of St. Paul, Minn., for the Employers. Mr. R. E. Engelking, of Spokane, Wash., for the Petitioner. Mr. A. Sundin, of Spokane, Wash., for the Intervenor. Mr. Bernard Dunau, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed, a consolidated hearing in this case was held at Spokane, Washington, on June 11, 1946, before Daniel R. Dimick, Trial Examiner. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations -Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS Great Northern Icing Company, a Minnesota corporation with prin- cipal offices in St. Paul, Minnesota, licensed to do business in the State of Washington, owns and operates an ice manufacturing plant at Hillyard, Washington. Pursuant to a contract with Western Fruit .Express Company, it ices and re-ices refrigerator cars ( reefers) en route on the tracks of the Great Northern Railway Company and spotted at its Hillyard platform for servicing. The refrigerator cars carry fresh fruit, vegetables, meat and other perishable commodities, and a portion of the cars are engaged in interstate journeys, During 70 N. L. R. B., No. 51. 682 GREAT NORTHERN ICING COMPANY 683 the year 1945, the Great Northern Icing Company purchased oil, ammonia, and tools, valued at about $1,000, some of which presumably originated at points outside the State of Washington. During the same period of time, it received about $70,000 from the Western Fruit Express Company in payment for its services. Addison Miller Company, a partnership with principal offices ins St. Paul, Minnesota, is engaged in a general contracting business which consists in operating boarding camps for railroads and industrial, enterprises in the State of Washington and in building small bridges and structures. Among its activities is the operation of an ice manu- facturing plant at Yardley, Washington, pursuant to a contract with the Northern Pacific Railway Company, the owner of the plant and property. The Addison Miller Company is,solely responsible for the• labor, materials, insurance, and similar items needed in the operation, of the Yardley plant where it manufactures ice used by it to ice and re- ice refrigerator cars carrying such perishable commodities as fresh fruit, vegetables, and meat. Refrigerator cars en route on the tracks of the Northern Pacific Railway Company are spotted by the Railway Company at the Yardley plant platform for servicing. A portion of these cars are engaged in interstate journeys. During the year 1945, the Addison Miller Company purchased oil, ammonia and tools, valued- at about $1,000, from local outlets, some of which presumably had extra State origin. During the same period of time, it received from the Northern Pacific Railway Company about $90,000 in payment for its- services. We find that the Employers are engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. International Union of Operating Engineers, Local Union 83, herein called the Intervenor, is a labor organization affiliated with the Amer- ican Federation of Labor, claiming to represent employees of the Em- ployer. III. THE .QUESTION CONCERNING REPRESENTATION The Employers refuse to recognize the Petitioner as the exclusive bargaining representative of employees of the Employers until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 1684 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THIE APPROPRIATE UNIT ; THE DETERMINATION OF REPRESENTATIVES The Petitioner seeks a single unit comprised of all the production and maintenance employees at the Hillyard plant of the Great Northern Icing Company and at the Yardley plant of the Addison Miller Company, with the exception of the chief engineer (plant superintendent), the day foreman, and the office and clerical employees. The Intervenor desires a single unit composed solely of the assistant engineers at both the Yardley and Hillyard plants. The Employers urge separate units at the Yardley and Hillyard plants, consisting in ,each instance of the production and maintenance employees, with the exception of the chief engineer (plant superintendent), all foremen, and office and clerical employees. They also assert that the assistant engineers constitute appropriate units separate from the production .and maintenance units. The stock of the Great Northern Icing Company is held by A. T. Miller Estate of Addison Miller, and Estate of George Faltico. The partners of the Addison Miller Company are A. T. Miller and the Estate of Addison Miller. The same individual serves as secretary and vice president of the corporation and as general manager of the partnership, and the same individual serves both Employers in the dual capacity of general superintendent and chief engineer. Both -Employers occupy the same physical space in their principal offices at St. Paul, Minnesota, and use the same clerical staff in their common administrative office in Spokane, Washington. The accounting and management functions of the two Employers are combined and cen- tralized. The operations performed at the Yardley and Hillyard plants are strikingly similar. They are separated by a distance of about 5 to 6 miles. There is some interchangeability of employees between the two plants. The labor-relations policy pertaining to the employees at both plants is formulated by the same individuals, and a division of the bargaining unit to conform to the separate legal entities would result in a duplication of effort in the negotiation` and administration of a collective agreement. It has been frequently -decided that legal separateness of employees does not compel a cor- responding separation in the appropriate unit where other facts indicate that for collective bargaining purposes a more inclusive unit is desirable., Contrary to the contention of the Employers, we find, that the partnership and the corporation constitute a single employer within the meaning of Section 2 (2) of the Act, and that the Yardley and Hillyard plants comprise a single appropriate unit. ' See Matter of Arnolt Motor Company, 68 N. L. R. B. 868 ; Matter of Standard Slag Com- pany, 63 N. L. R. B.'313; Matter of Salmon Cowan, Site, et al., 59 N. L. R. B. 312; Matter of (iettyabu)g Furnsture Co et at, 25 N. L. R B. 1109 GREAT NORTHERN ICING COMPANY 685 A description of the activities at one plant is equally applicable to the operations of the other. The work at the plants may be divided into two parts, that which pertains to the manufacture and storage of ice, and that which pertains to the delivery of the ice to the refrigerator cars. Water is-placed in cans, immersed in brine, and frozen. After freezing, the ice is pulled or harvested, and stored. The ice is then withdrawn from storage as required, and is run to the icing dock or platform by chains and elevators. The icing dock is at a slightly higher elevation than the roofs of the refrigerator cars which are spotted at the platform for servicing. The ice is broken at the dock, and placed in the bunkers of the cars. Most of the cars require re- icing, having been initially iced at other points in their journey. The plants operate 7 days per week throughout the year in 3 shifts per clay. The day shift begins at 7 a. In. and ends at 4 p. in.'; the swing shift begins at 1 p. in. and ends at 10 p. In.; and the night shift begins at 10 p. in. and ends at 7 a. in. There is thus a 3-hour overlap of the day and swing shifts. The work at the plants is seasonal. For 5 to 6 months during the winter, the plants produce no ice. During this period a skeleton crew of 3 men is maintained, 1 foreman and 2 engineers, of whom 1 is assigned to each shift. Three months may go by without the need of icing a car. The icing machines are run periodically to prevent deterioration. Normal operations are resumed about April 1 in order to store ice for the peak season beginning about July 1. During this period, about 12 to 14 men are employed at each plant. A single shift complement comprises a foreman, an assistant engineer, an ice puller, and a car icer who acts also as a storage man. During the peak season beginning July 1 and ending about September 15, the Yardley plant employs about 50 to 60 people, exclusive of the operating crew, and the Hillyard plant employs about 30 people exclu- sive of the operating crew. The manufacture of the ice is handled by an operating crew com- posed of the assistant engineer and tine ice puller or harvester. The assistant engineer is primarily concerned with setting the valves of the ammonia system and with the general maintenance of the refrig- eration unit. The ice puller performs the manual work of placing the water in the cans and removing the cans after freezing. The speed with which he does his work is regulated by the assistant engineer with a view towards obtaining maximum production which is depend- ent in part on the efficiency with which ice is pulled. The ice puller also stores ice, and he is frequently assisted by the engineer in this job. The employees who ice the refrigerator cars are also engaged in storing ice, and are designated as storage men and car icers. All em- ployees work under the general direction of the foreman assigned to their shift. There is evidently a considerable amount of overlapping 686 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD in the jobs done by the various classifications of employees, as well as a good deal of transfer between jobs. The Intervenor had a collective agreement covering the assistant engineers of the Great Northern Icing Company entered into on April 1, 1942, for a period of-1 year and extended by letter for an additional year. During the war the Intervenor was unable to provide the Em- ployer with assistant engineers, although before the war the Inter- venor was the Employer's source of engineers at the Hillyard plant. There has been no collective agreement covering any employees at the, Yardley plant, and the Employer has not procured engineers for work at that plant through the Intervenor. Inasmuch as the work of the assistant engineers is an integral part of the production process, and their interests are closely related to those of the remainder of the production force, they may appropriately be included in the produc- tion and maintenance unit. However, since they are an identifiable group, and the history of separate representation indicates the feasi- bility of a unit of assistant engineers, they may also comprise a sep- arate appropriate unit," and we shall conduct a self-determination election among them to ascertain their desires. We shall also conduct an election among the production and maintenance employees. We shall defer a finding of the appropriate unit or units, pending the out- come of the elections. There remains for consideration the supervisory status of the fore- men. The Employer contends that each foreman has sufficient su- pervisory authority to warrant exclusion from the rank and file unit. The Petitioner, on the other hand, would exclude-only the day fore- man, and would include the swing shift and night shift foremen (also, known as dock foremen). The foremen at all times work hand in hand with the car icers and the storage men in the performance of the manual labor incident to their jobs, and at the same time coordi- nate and direct their work. So far as it is realistic to segregate their productive work from their supervisory functions, the foremen dur- ing the peak season spend 30 percent of their time in production and 70 percent in supervision, and during the period of normal operations, their time is equally divided between production and supervision. - During the winter months, working alone, the foreman is simply a production worker. The day foreman is the person through whom the plant superintendent transmits his instructions to the remaining foremen and to the employees. The plant superintendent, never- Our earlier cases in which we found inappropriate units of operating engineers in re- frigeration plants are distinguished from this case in part by differences in duties, responsibilities, and mode of operation, but particularly by the history of separate repre- sentation yvhich the present record discloses. Cf. Matter of Paragon Packing Company, 64 N L. R. B. 12, 52 N. L. R. B. 538; platter of Columbia River Packers Association, Inc., 64 N. L R. B. 9, 52 N L R. B. 535; Matter of New England Fish Company of Oregon, 52 N. L. R. B 552; Matter of Union Fisherman's Co-op Packing Co, 52 N. L. R. B. 541. GREAT NORTHERN ICING COMPANY 687 theless, frequently gives his orders directly to the dock foremen or to the assistant engineers. During the time that the day shift and the swing shift overlap, presumably the day foreman is in charge. There is no difference m the wages paid to the day foremen and to the dock foremen. The Petitioner admits to membership as rank and file ,employees all '`working foremen," whom it defines as those who spend .30 percent or more of their time in production in conformity with its understanding of the provisions of the Fair Labor Standards Act pertaining to executive employees. However, the uncontradicted tes- timony of the plant superintendent (chief engineer) and a night-shift foremen attributed to each of the foremen the authority to hire and -discharge. We find, in reliance on that testmony, that all the fore- anen, including the dock foremen, are vested with supervisory author- ity, and we shall exclude them from the unit of production alid main- tenance employees. We shall direct that separate elections be conducted among the employees in the voting groups described below, who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction. As previously stated, we shall defer a find- ing of appropriate unit or units pending the outcome of the elections: 1. All production and maintenance employees at the Hillyard plant of the Great Northern Icing Company and at the Yardley plant of the Addison Miller Company, excluding chief engineer (plant super- intendent), assistant engineers, all foremen, and office and clerical em- ployees, and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action; and 2. All assistant engineers at the Hillyard plant of the Great North- ern Icing Company and at the Yardley plant of the Addison Miller Company. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Great Northern Icing Com- pany, Hillyard, Washington, and the Addison Miller Company, Yard- ley, Washington, separate elections 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 Nineteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of National Labor Relations Board Rules and Regulations-Series 3, as amended, among the employees in the two voting groups described in Section IV, above, who were employed 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the pay-roll period immediately preceding the date of this Direction, including employees who chcl 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 em- ployees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not the employees nn voting group 1 desire to be represented by United Packinghouse Workers of America, Local Union No. 321, CIO, for the purposes of collective bargaining, and to determine whether employees in voting group 2 desire to be represented by United Packinghouse Workers of America, Local Union No. 321, CIO, or by International Union of Operating Engineers, Local Union 83, AFL, for the purposes of collective bargaining, or by neither. CIIAIR31AN HERZOG took no part in the consideration of the above Decision and Direction of Elections.