Valley of Virginia Cooperative Milk Producers Assn.

VALLEY OF VIRGINIA COOPERATIVE MILK PRODUCERS ASSN. 785 that the Union ever requested the Respondents to enter into bargaining negotiations and certainly it cannot be assumed that the Union has complied with this condition precedent to a Section 8(a)(5) finding. Again, there is nothing in the record re- motely suggesting that the parties ever held any meetings and there is a total absence of any facts customarily present in refusal to bargain cases. I, therefore, conclude and find that the facts are insufficient to establish a violation of Section 8(a) (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section I, above, occurring in connec- tion with the operations of the Respondents described in section III, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. 5 The Respondents have not engaged in any unfair labor practices in violation of Section 8(a) (5) of the Act. [Recommendations omitted from publication.] The Valley of Virginia Cooperative Milk Producers Association 1 and General Teamsters & Warehousemen Local Union 539, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen & Helpers of America, Petitioner. Case No. 5-RC-2992. May 17, 1960 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 Sidney Smith, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. "The name of the Employer appears as amended at the hearing 127 NLRB No. 95 560940-G1-voi 127 51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organization involved claims to represent certain em- ployees of the Employer. 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 the Act. 4. The Employer is engaged in the processing and distribution of milk and milk byproducts. From 10 to 12 inside employees are em- ployed at the plant where milk is received, processed, and bottled, and approximately 40 inside employees work at the milk products manu- facturing plant. There are also approximately 17 driver-salesmen, who, with the aid of 8 to 10 regular helpers, and 5 to 6 part-time helpers, distribute milk to wholesale and retail stores in and around the Harrisonburg area, and 5 bulk tank drivers who are engaged solely in hauling milk from farms to a reloading station. The only dispute concerns the driver-salesmen and helpers, and the bulk tank drivers, whom the Petitioner would include, and the -Employer would exclude. As noted, the five bulk tank drivers are engaged solely in hauling milk from farms in the vicinity of Harrisonburg to a reloading sta- tion which is geographically proximate to the milk processing plant. From this station, the milk is picked up and delivered to the Em- ployer's customers by contract haulers who are not employees of the Employer. Occasionally, the bulk tank drivers deliver milk directly to the milk processing plant. These drivers are under the immediate supervision of the overall manager of the plant. We find no merit in the Employer's contention that these drivers must be excluded from the unit as "agricultural laborers." The Board has held that a producers cooperative , such as the Employer herein, which owns no land and merely furnishes services to its mem- bers who are the "farmers," is not a "farmer" within the meaning of Section 3 ( f) of the Fair Labor Standards Act.2 Accordingly, as the five bulk tank drivers in the performance of their duties of delivering milk to the reloading station, are not actually working on a farm and as their Employer is not a farmer, we find that they are not "agri- cultural laborers" and are therefore within the coverage of the Act. With respect to the driver-salesmen and their helpers, the record shows that, although they are out on the road all day driving trucks, they appear at the plant to load their trucks in the morning and to return their trucks in the evening. The record is silent as to the de- tails of their duties; we infer, however, that they have the normal duties of their classifications. The supervision and working hours of the driver-salesmen are diverse from those of the plant employees; the driver-salesmen and plant employees do not exchange duties; and, in 2 See Brooksville Cstrus Growers Associataoii, 112 NLRB 707, 708. VALLEY OF VIRGINIA COOPERATIVE MILK PRODUCERS ASSN. 787 general, the two groups have relatively little contact with each other. Unlike the plant employees who are hourly paid, the driver-salesmen are paid a salary plus a commission; all employees, however, share the same benefits. Even though they may be away from the plant most or all of the time and have little contact with plant employees, truckdrivers are included, under established Board practice, in production and main- tenance units unless the parties agree to exclude them or some labor organization seeks to represent them separately.' Board practice with respect to driver-salesmen has, however, been diverse from that of truckdrivers,4 despite the fact that the extent of their contact with plant employees is generally similar to that of truckdrivers with plant employees. In view of this similarity in the relationship of these two types of employees with plant employees, we believe that the unit placement of both types with respect to production and maintenance units should be governed by the same considerations.5 As the work of both types of employees consists, in large part at least, of manual labor directly related to the flow of materials and products into and out of the plant, we conclude that they have sufficient interests in common with the production and maintenance employees to warrant their in- elusion in a production and maintenance unit when, as here, there is no agreement to exclude them and no other labor organization seeks to represent them separately.6 Accordingly, we shall include both the bulk tank drivers and the driver-salesmen and their helpers in the production and maintenance unit herein. Accordingly, we find that the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer's Harrisonburg, Virginia, plants, including laboratory employees, bulk tank drivers, garage mechanics, and the driver-salesmen and their helpers, but excluding office clerical employees, guards, and supervisors within the meaning of the Act. [Text of Direction of Election omitted from publication.] MEMBER BEAN took no part in the consideration of the above De- cision and Direction of Election. 3 E g., Foremost Dairies, Inc, 118 NLRB 1424, 1426 4 E g, Wells Dairies Cooperative, 107 NLRB 1445, 1448, The Faintly Laundry, Inc., et at, 121 NLRB 1619, 1621, but see Albert Lea Cooperative Creanieiy Association, 119 NLRB 817, 820 5 Although there are normally certain differences between the duties of truckdiivers and the duties of driver-salesmen, these differences do not, in our opinion, affect the similarity of their relationships to the production and maintenance employees To the extent that they are inconsistent with our decision herein, Wells Dairies Co- operative, supra, The Faintly Laundry, Inc, supra , and similar cases , are hereby overruled