Federal Ice & Cold Storage Co.

In the Matter of FEDERAL ICE & COLD STORAGE COMPANY and PRODUCE DRIVERS AND EMPLOYEES UNION, LOCAL No. 630 Case No. B-1614.-Decided December 8, 1939 Ice and Cold Storage Industry-Investigation of Representatives: question concerning representation : company refused to bargain with the union , assign- ing as reason doubt as to whether it was subject to the provisions of the Act- Unit Appropriate for Collective Bargaining : truck drivers, production, main- tenance, and cold-storage employees , exclusive of office, clerical, and supervisory employees ; no controversy except with respect to certain truck drivers known as "contractors "; contractors found not to be employees and excluded from unit-Employee Status: contractors : persons who own and operate their own trucks and sell at retail ice purchased from the company , fix their own resale price, carry the risk of loss of their unsold surplus , are free to buy from other producers as well as from the company, determine their own hours of work, and are permitted to remain in business on their accustomed routes even though they entirely cease buying from the company , held not to be employees; restrictions placed on their activities by the company and aid rendered to them by the company, held consistent with buyer-seller relationship-Repre- sentatives: proof of choice: testimony of union president-Certification of Representatives : union certified as collective bargaining representative upon proof of majority representation where company general manager testified that company would be agreeable to certification without recourse to election by secret ballot. Mr. William R. Walsh, for the Board. Mr. A. Lundin, of Los Angeles, Calif., for the Company. Mr. Cecil W. Nolly and Mr. Lee W. Owen, of Los Angeles, Calif., for the Union. Mr. William Stix, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On April 26, 1939, Produce Drivers and Employees Union, Local No. 630, herein called the Union, filed with the Regional Director for the Twenty-first Region, Los Angeles, California, a petition, and on May 9, 1939, an amended petition, alleging that a question affect- ing commerce had arisen concerning the representation of employees 18 N. L. R. B., No. 26. 161 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Federal Ice & Cold Storage Company, Los Angeles, California, herein called the Company, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 2, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations- Series 2, ordered an investigation and authorized the Regional Di- rector to conduct it and to provide for an appropriate hearing upon due notice. On October 23, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union.' Pursuant to the notice, a hearing was held on Novem- ber 9, 1939, at Los Angeles, California, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Board, repre- sented by counsel, and the Company and the Union, each repre- sented by an officer, participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues, was afforded all parties. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Federal Ice & Cold Storage Company, a California corporation, is engaged in the production and sale of ice and in the business of cold storage. Its ice and storage plant is at Los Angeles and it has two stations for the distribution of ice, one in Los Angeles, the other at San Pedro, California. In 1938 the Company produced 43,470 tons of ice, of which 8,715 tons were sold to Pacific Fruit Express, 2,670 tons to fishing boats in the harbor at San Pedro, and 2,463 tons to other firms and indus- tries doing an interstate business. Pacific Fruit Express, a corporation owned jointly by the Southern Pacific and Union Pacific Railroads, is engaged in the business of icing fruit, express cars of the two railroads. During 1938, in con- ducting its business at Los Angeles, it used approximately 80,000 tons of ice, including that purchased from the Company, to ice 3,642 cars of which 3,329 moved in interstate commerce. In the course of their operations the fishing boats which purchase ice from the Company go beyond the 3-mile limit and carry on fishing as far south as the coast of Mexico. Many of the boats are 1 Copies of the notice of hearing were also served upon Central Labor Council (of Los Angeles ) and upon Los Angeles Industrial Union Council . Neither of these organiza- tions appeared at the hearing and there is no showing in the record that any organiza. tion other than the Union purports to represent any of the respondent 's employees. FEDERAL ICE. & COLD STORAGE COMPANY 163 out of the harbor for weeks or months at a time and ice is indispen- sable to the preservation of their catch. The fish brought to harbor by these boats are sent to canneries which sell their produce in inter- state and foreign commerce. In 1938 the Company received 15,267 tons of commodities to be warehoused. Of this amount 2,732 tons originated outside Cali- fornia; and 1,739 tons were shipped from the warehouse in carload lots, practically all such shipments being made to points outside California.2 During the same period an additional 4,787 tons of commodities were delivered from storage to customers who do an interstate business. II. THE LABOR ORGANIZATION INVOLVED Produce Drivers and Employees Union, Local No. 630, is a labor organization affiliated with the International Brotherhood of Team- sters, Chauffeurs, Stablemen, and Helpers, which is affiliated with the American Federation of Labor. III. THE QUESTION. CONCERNING REPRESENTATION The Company has refused the Union's request for recognition as the bargaining agent of its employees, assigning as the reason for its refusal doubt as to whether it was subject to the provisions of the. Act. We find that a question has arisen concerning representa- tion of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and to foreign commerce and tends to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union claims that the truck drivers, production, maintenance, and cold-storage employees of the Company, exclusive of office, cler- ical, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining.3 This contention is not contro- 2 commodities are removed from 'storage, employees of the Company bring them to the Company's loading dock where employees of the shipper load them on cars or trucks. 3 The production , maintenance, and cold -storage employees include workers classified as engineers, tank- and day-storage men, garagemen , checkers, temperature men, maintenance men, warehousemen , and janitor. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD verted by the Company, except with respect to certain truck drivers, known as "contractors," who are alleged by the Union to be em- ployees and by the Company to be mere purchasers of ice from the Company. The contractors, most of whom operate their own trucks, are en- gaged in retail ice distribution. They purchase ice from the Com- pany at a uniform price, but fix their own resale price, and, in so far as the record discloses, do not have the privilege of returning their unsold surplus. The contractors may, and some do, buy ice not only from the Company but from other producers as well. Moreover, they determine their own hours of work, are free to cease buying from the Company at any time, and, when they do so, the Company makes no effort to prevent them from remaining in business on their accustomed routes. The contractors are required to confine their operations to fixed territories 4 and the Company will not sell ice to persons who fail to abide by this requirement. In accordance, furthermore, with a rule of an "Ice Exchange" to which it belongs,5 the Company forbids contractors to sell ice to commercial, although not to domestic, customers of other members of the Exchange.6 In these respects the Company does regulate the activities of the contractors, but the first restriction is one commonly placed on independent dealers by distributors, and the second is quite as consistent with a buyer- seller as with an employer-employee relationship. An employee of the Company, known as the "outside superin- tendent," investigates complaints made by customers of the con- tractors, but, since there is no evidence that the Company exercises any power to discipline the contractors with respect to such com- plaints, these activities of the outside superintendent do not indicate that the contractors are employees. Indeed, since the outside su- perintendent likewise seeks out new business prospects and keeps contractors informed of them, we infer that his work is essentially promotional in nature. Similar in object is the Company's practice 4 From 1924, when the Company's business began , until 1930 , retail distribution was carried on by salaried drivers. At the latter date the Company "turned over" the routes to these drivers without any charge and started to deal with them on the basis described in the text. Some of the original contractors have gone out of business and some of their routes have been acquired by other contractors . The Company sells ice, moreover, to any person who has an established route, irrespective of whether he was formerly a salaried driver in the Company's employ. " Albert Lundin, general manager of the Company , testified that representatives of the contractors who purchase ice from the Company and from other ice manufacturers in Los Angeles participated in establishing this rule . Lee W. Owen, president of the Union , testi- fied that a majority of these contractors "have stated" that they had no part in making the rule. 6 In one instance when a contractor sold ice to a customer of another producer, the Company refused to sell ice to him at the station most convenient for him, thus requiring him to come to the main plant for it. When the contractor abandoned his new customer, the Company permitted him to resume his purchases at the more convenient location. FEDERAL ICE & COLD STORAGE COMPANY 165 of painting its name on contractors' trucks upon request. We are of the opinion that these services amount to no more than aid furnished by a distributor to independent dealers and that, in this respect, they are not different from the opportunity afforded to contractors to rent a truck from the Company 7 or to secure reduced rates on their automobile insurance by purchasing it under the Company's fleet policy. As we have stated above, the contractors purchase ice from whom- ever they please, even to the exclusion of the Company; fix their own hours of work and the resale price of ice; and, apparently carry the risk of loss for ice not disposed of. The relationship of buyer and seller thus indicated 8 is not, we conclude, negatived by the limited control which the Company exercises over the activities of the con- tractors or by the assistance which it renders them. Consequently, we find that the contractors are not employees of the Company. Except with respect to the contractors the Company raised no objection to the unit claimed by the Union to be appropriate. We find, accordingly, that the truck driver, production, maintenance, and cold-storage employees, exclusive of office, clerical, and super- visory employees, employed by the Company constitute a unit ap- propriate for the purposes of collective bargaining and that said unit will insure to employees the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES Albert Lundin, general manager of the Company, testified that, if the Board determined that the operations of the Company brought it within the provisions of the Act, the Company would be agreeable to a certification of representatives by the Board without recourse to an election by'secret ballot. Lee W. Owen, president of the Union, testified that at the time the petition was filed the Union represented all of the production and cold-storage employees, and all but one or two of the truck drivers who are not "contractors." We find that the Union has been designated and selected by the majority of the employees within the appropriate unit as their rep- resentative for the purposes of collective bargaining. It is, there- fore, the exclusive representative of all employees in such unit for the purposes of collective bargaining, and we will so certify. ' The Company maintains 20 trucks , all more than 10 years old , which, it may be in- ferred, are a carry-over from the period when salaried drivers performed the function now fulfilled by contractors . See footnote 4, supra. s The Company does not pay and Social Security tax nor does it carry any workmen's compensation insurance for the contractors. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the above findings of fact and upon the record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Federal Ice & Cold Storage Company, Los Angeles, California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The truck drivers, production, maintenance, and cold-storage employees employed by the Company, exclusive of office, clerical,'and supervisory employees, constitute a unit appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. Produce Drivers and Employees Union, Local No. 630, is the exclusive representative of all the employees in such unit for the pur- poses of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, IT IS HEREBY CERTIFIED that Produce Drivers and Employees Union, Local No. 630, has been designated and selected by a majority of the truck drivers, production, maintenance, and cold-storage employees employed by Federal Ice & Cold Storage Company, Los Angeles, California, exclusive of office, clerical, and supervisory employees, as their representative for the purposes of collective bargaining and that, pursuant to Section 9 (a) of the National Labor Relations Act, Produce Drivers and Employees Union, Local No. 630, is the ex- clusive representative of all such employees for the purposes of col- lective bargaining with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment.