Pure Seal Dairy Co.

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from a decline in sales of•comptometers. Thus the record shows that the production of comptometers has dropped from a level in 1941 of nearly 2,000 units a month to a level in 1958 of a little better than 325 units monthly, and that there has been a considerable further drop since 1958. The Niles facility, as noted, represents a consolidation of the oper- ations of three of the Employer's subsidiaries, and is located about 10 miles from the Chicago plant. It is often referred to as an office rather than a plant, since about two-thirds of its floor space is devoted to offices and laboratories. It is under immediate supervision separate from that at the Chicago, plant. The Niles facility is engaged pri- marily in research and development work, mostly in the field of Gov- ernment contracts. It also assembles the electrowriter, an electronic device used in connection with communication equipment, the parts for which are purchased, in part, from the Employer's Chicago plant. Its sole item of manufacture is the Thermodot, an electronic protective device. There have been no transfers between the two installations except for a few supervisory employees and nonbargaining unit per- sonnel, and very little, if any, employee interchange. While each in- stallation employs assemblers and shipping and receiving clerks, job classifications are in most respects dissimilar. Thus, the above facts show that the Niles plant is a separate oper- ation from the one in Chicago, both physically and with respect to its production and supervision; that the extent of transfer to the Niles, plant of either production processes or employees in the certified unit has been insubstantial; and that there is little, if any, employee inter- change between the two plants. Under these circumstances, it is clear, and we so find, that the Niles plant is not an accretion to the one at Chicago.3 Consequently, its employees do not come within the scope of our Chicago plant certification. We shall, therefore, deny the Pe- titioner's motion to amend certification. [The Board denied the Petitioner's motion to amend certification.]' "Illinois Malleable Iron Company and Appleton Electric Company, 120 NLRB 451, 453- 454; United States Rubber Company, 109 NLRB 1293, 1294. Pure Seal Dairy Company 1 and United Dairy Workers, Local No. 383, Retail, Wholesale, and Department Store Union,, AFL-CIO. Case No. 7-RC-4964. January 8, 1962 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 Charles Fine, hearing officer. 1 The name of the Employer appears as amended at the hearing. 1135 NLRB No. 12. PURE SEAL DAIRY COMPANY 77 The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. 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 McCulloch and Members Rodgers and Leedom] 2 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 Pure Seal Dairy Employees' Club, herein called the Club, contend that their existing collective-bargaining agreement covering the unit here sought is a bar to the petition. The Employer and the Club entered into the contract in February 1960, effective from July 1, 1959, to July 31, 1964. The contract pro- vides, however, that as to a certain segment of the unit (the route- men), the contract may be reopened for negotiation at the end of its second year, and is automatically reinstated from year to year if no notice to reopen is given. But as to the remaining segment of the unit (the plant employees), no similar provision exists which would reduce the fixed 5-year term of the contract.' The Petitioner filed its petition on July 13, 1961. As the term of the contract began to run from its effective date of July 1, 1959,5 the petition was filed subsequent to the second anniversary date. The Board has held that a valid contract having a fixed term or duration shall constitute a bar for as much of its term as does not exceed 2 years, and that any contract having a fixed term in excess of 2 years shall be treated, for the purposes of contract bar, as a contract for a fixed term of 2 years.6 As the petition in this case was filed more than 2 years after the effective date of the contract, we find that it is not barred 2 The Employer moved to dismiss the petition on the ground that Petitioner had not made a showing of interest . The sufficiency of a petitioner 's showing of interest is an administrative matter not subject to litigation . 0. D. Jennings & Company, 68 NLRB 516. We are administratively satisfied that the Petitioner 's showing of interest is adequate. Accordingly , the Employer 's motion to dismiss the petition is denied. The Employer also contended that the petition was untimely filed. Inasmuch as the present petition was a new petition and was timely filed, the filing date of the earlier petition is of no consequence and the Employer 's contention lacks merit. J Pure Seal Dairy Employees' Club intervened on the basis of its contract with the Employer. General Drivers Union , Local No. 332, affiliated with the International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Ind, intervened without objection . However, it expressed no desire to be placed on the ballot and made no showing of interest among the employees of the Employer. 4 Without passing on whether the term of the contract as to the routemen may be regarded as in effect a provision for a 2 -year contract automatically renewable for three successive 1-year periods , we nevertheless find that, because these provisions cover only a portion of the established appropriate unit, the contract as a whole does not constitute a bar to an election in such unit. Benjamin Franklin Paint & Varnish Co ., a Division of United Wallpaper, Inc., 124 NLRB 54. e Pacific Coast Association of Pulp and Paper Manufacturers , 121 NLRB 990. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, by that contract.' We further find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) of the Act. 4. The parties stipulated as to the appropriateness of a unit of routemen and plant employees, except that the Petitioner would also include some 16 or 17 distributors who were formerly employed by the Employer as routemen and who, it contends, work within the 'Flint area and pick up the dairy goods themselves at the Employer's docks. The record shows that there are 14 additional distributors whom the Petitioner would exclude. We consider the distinctions drawn by Petitioner-between the two groups of distributors to be both arbitrary and inconsistent. The status of both groups is substantially similar. Several of the dis- tributors whom Petitioner would include have routes outside of the Flint area, one being as far away as 33 miles. On the other hand, several of the distributors whom Petitioner would exclude pick up, their dairy goods daily at the Employer's plant. Finally, it is clear that all 31 distributors, whether former employees or not, have the same working conditions. Accordingly, we shall consider all the dis- tributors as a single, indivisible group. The distributors deliver the Employer's products to both retail and wholesale customers. The Employer sets the price at which the dis- tributors purchase dairy goods from it and the distributors then set their own price to their customers. Their compensation, therefore, is the difference between what they pay for dairy goods and what they receive from sales. However, in some instances involving "house, accounts" (that is, sales to cooperatives or chain stores) the distribu- tors do not set the price but are paid a commission based upon the amount of dairy goods they deliver. In support of its contention that the first but not the second group of distributors are employees, the Petitioner cites the fact that each distributor in the first group must purchase all his dairy goods from the Employer; he must paint the Employer's name on the truck in accordance with the latter's specifications, keep the truck in clean con- dition, and buy the amount of liability insurance directed by the Employer; the Employer draws up the route, may terminate the dis- tributorship at any time, and retains the right to solicit customers and to deal with any new house accounts in the distributor's territory. On the other hand, each distributor must provide his own truck, and generally speaking is free to work the route as he wishes. He must himself pay the cost of license fees, liability insurance, and whatever maintenance work is needed. He may garage the truck where he pleases and use it for any other purpose. He is not required to wear a raiform,,y gd^m is y ofOo ^ltsuh^mso fz hg °a^suz H^tr sof ree^v °:^ is- .^a ax,rx East T P, c g aC^ 3 , 1^ ^ ^ gSu4 \o tco"s3a3^t^saA 3ea00 oftlwn4 " MILLWRIGHTS & MACHINERY ERECTORS LOCAL 2471 79, tribute products which are not manufactured by the Employer,` hires- his own help, and can extend credit to his customer without the- Employer first' passing on this arrangement. The Employer gives- him neither a bonus nor a vacation, makes no tax deductions for him, carries no workman's compensation or other insurance on his behalf, and does not train or supervise him on the route. It is well established that in determining the status of persons- alleged to be independent contractors, the Act requires the application. of the "right to control" test.' Where the person for whom the serv- ices are performed retains the right to control the manner and means by which the result is to be accomplished, the relationship is one of employment. On the other hand, where control is reserved only as to the result sought, the relationship is that of independent contractor. The resolution of this question depends upon the facts of each case and no one factor is determinative.9 We find, from the above facts and from the record as a whole, that the distributors involved herein retain sufficient independence of action as to the manner and means of accomplishing their work to, constitute independent contractors, and that they are not employees. of the Employer within the meaning of the Act.10 Accordingly, we exclude them from the unit. We find that the following employees of the Employer constitute a unit appropriate for the purposes of' collective bargaining within the meaning of Section 9 (b) of the A( All retail and wholesale salesmen and plant production employees at the Employer's Flint, Michigan, plant, including swingmen, utility- men, garage mechanics, and maintenance men, but excluding official clerical employees, distributors, sales supervisors, laboratory super- visors, plant manager, and other supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] "Squirt-Nesbstt Bottling Corp., 130 NLRB 24; Golden Age Dayton Corporation, 124- NLRB 916 0 C J. Patterson, d/b/a Seri,-U8 Bakers of Oklahoma, 121 NLRB 84. 10 Golden Age Dayton Corporation, 124 NLRB 916, 919, Hugh Major Truck Service, 124- NLRB 1887; Cement Transport Inc., 111 NLRB 175; Nehs Bottling Co., Inc., 101 NLRB 68.. Millwrights and Machinery Erectors Local Union No. 2471,. United Brotherhood of Carpenters and Joiners of America. and L. G. Dutton, Wendell Ash, John Nabors, Kenneth E. Carney, and Monroe Turpin, Charging Parties and' Otis Ele- vator Company, Party to the Agreement. Cases Nos. 15-CB- 498-1,15-CB-498-3,15-CB-498-5,15-CB-498-7, and 15-CB-498-9. January 9, 196. DECISION AND ORDER On June 21, 1961, Trial Examiner Sidney Lindner issued his Inter- f 1 !+ r r d rd a. tt,^^ ur hrt. rriedti^^Re^ic^r#^=ln <bhe°^,lid^€^ ^t^;itl^^ pi c^c^bc4tiib, finding ^I^iat th^i^^e„ 135 NLRB No. 19.