Abbotts Dairies, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1952

97 N.L.R.B. 1064 (N.L.R.B. 1952)

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. All carpenters (Case No. 4-RC-1320).
12. All machinists and apprentices, including the toolroom attend-
ants, toolrooln mechanics, and die inspector working in the machine
shop (Case No. 4-RC-1318).
If a majority in any of the voting groups vote for the Petitioner
they will be taken to have indicated their desire to constitute a separate
appropriate unit, and the Regional Director conducting the elections
directed herein is instructed to issue a certification of representatives
to the Petitioner for each such voting group described above, which
the Board, under such circumstances, finds to be a unit appropriate
for purposes of collective bargaining. In the event that a majority in
any voting group vote for the Intervenor, the Board finds the inclusion
of such employees in the existing unit to be appropriate and the Re-
gional Director will issue a certificate of results of election to such
effect.
Order
IT IS HEREBY ORDERED that the petitions in Cases Nos. 4-RC-1238,
1241, and 1243, be, and they hereby are, dismissed.
[Text of Direction of Elections omitted from publication in this
volume.]
ABBOTTS DAIRIES, INC., BORDENS ICE CREAM Co., BREYER ICE CREAM CO.,
PHILADELPHIA DAIRY PRODUCTS COMPANY, INC., SUPPLEE-WILLS-
JONES Co.,' and LOCAL 835, INTERNATIONAL UNION OF OPERATING
ENGINEERS , AFL, PETITIONER 2
PHILADELPHIA DAIRY PRODUCTS COMPANY, INC., and LOCAL 420, UNITED
ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF TIIB PLUMBING
AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA,
AFL,3 PETITIONER
ABBOTTS DAIRIES, INC., and LOCAL 420, UNITED ASSOCIATION OF JOUR-
NEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING I%,-
DUSTRY OF THE UNITED STATES AND CANADA, AFL, PETITIONER.
Cases Nos. 4-RC-988, 4-RC-10,50, and 4-RC-1041. January 16,
1952
Decision and Order
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a consolidated hearing 4 was held
'. The Employers are referred to herein as Abbotts, Borden, Breyer, Philadelphia, and
Supplee, respectively.
2 Herein referred to as the Engineers.
a Herein referred to as the United.
* The above-captioned cases were consolidated for purposes of hearing by an order of the
Regional Director, dated May 9, 1951.
97 NLRB No. 162.
ABBOTTS DAIRIES, INC. 1065
before Julius Topol, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudical 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 [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employers.5
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the reasons set
forth in paragraph 4, below s
4. The Engineers seeks a unit composed of all employees employed
in the Employers' Philadelphia plants and facilities and in the
branch facilities, who are members of the Firemen.'
The United has filed separate petitions for separate units of "re-
frigeration, installation and service" employees at the Philadelphia
plants of Abbotts and Philadelphia. At the hearing, however, United
stated that if the Board found that such separate units were inappro-
priate, it was willing to represent the employees in those classifica-
tions at all the plants and facilities of the five employers, on a
multi-employer unit basis.
The Employers and Intervenors assert that the only appropriate
unit is a single over-all unit composed of all the employees working
in and "out of" the Employers' Philadelphia plants and facilities,
and branches.8 The appropriateness of such a multiemployer unit,
it is argued, is supported by the long history of joint collective bar-
gaining on a multiemployer basis between the Intervenors and the
five Employers.
5 Intervening in each of the above cases on the basis of current contracts with the
Employers are (1 ) Local 473 , International Brotherhood of Firemen and Oilers, AFL,
herein called the Firemen ; ( 2) Local 463 , Food Drivers Salesmen and Ice Cream Workers
of the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America , AFL, herein called Local 463, Teamsters ; and (3 ) Local 331, Food Driver
Salesmen and Ice Cream Workers of the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , AFL, herein called Local 331, Teamsters.
In view of our findings with respect to the appropriate unit, it becomes unnecessary
to consider the motions of the Employers and Intervenors to dismiss the petitions herein
on the grounds of contract bar or untimeliness of filing.
7 Originally , the Engineers filed a petition (November 6, 1950 ) for a unit of "mainte-
nance" employees at Abbotts only. Subsequently , on January 17, 1951 , the Engineers
filed an amended petition requesting a unit of "all Engineers , Firemen, Oilers, General
Maintenance men and helpers " employed by all five Employers at their Philadelphia plants
and facilities . The final position of the Engineers with respect to its unit request appears
above.
8 This unit excludes clerical , office, sales , advertising , and laboratory employees.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Operations
The Employers herein are engaged in the manufacture and dis-
tribution of ice cream.9 Primarily involved in this proceeding are
the ice cream plants and distribution facilities of Abbotts, Breyer,
Philadelphia and Supplee, and the distribution facilities only of
Borden,- all located in Philadelphia, Pennsylvania." The ice cream
manufactured at the plants is distributed to retail outlets, and to
branches which store and in turn distribute the ice cream to retail
outlets in the area served by the branches.
Bargaining History
The first contracts between the five Employers herein, the Firemen,
and Local 463, Teamsters, were negotiated in 194112 Representatives
of each Employer and of each Union met with the attorney for
the five Employers and the attorney for the Unions. The attorney
for the Employers conducted the negotiations on their behalf while
the representative of Local 463, Teamsters, acted as spokesman for
the Unions. Following the negotiation of an agreement each of
the five Employers executed a separate but identical contract which
was signed jointly by the unions participating in the negotiations.
This bargaining procedure has remained substantially the same during
all the subsequent negotiations,"' and the contracts executed have
covered units which have been overall in scope.
9 Several of the Employers also manufacture and distribute dairy products , however,
such operations are not involved in this proceeding.
10 Borden has plants in other States which ship ice cream to the Philadelphia branch
for distribution to retail outlets in the area.
11 The following branch distribution facilities are also included in this proceeding :
Atlantic City, New Jersey (Philadelphia, Supplee and Abbotts) ; Wildwood , New Jersey
(Abbotts) ; Wilmington -, Delaware ( Philadelphia ) ; and Allentown , Pennsylvania ( Breyer
and Supplee).
12 The negotiations took place near the close of the year ; thus, the contracts were dated
January 1942.
13 A chronological summary of this bargaining history is as follows :
1942-First contract.
1943-Contract of 1942 continued in effect with changes in wage rates.
1944-45-As in 1943, only wage rates were changed and the 1942 contract was
continued in effect.
1946-New contract.
1947-New contract-Local 331, Teamsters , signed for the first time . Employees of
Philadelphia ' s Wilmington Branch and of Supplee ' s Allentown Branch covered by
the joint negotiations . These employees are members of Local 463 , Teamsters.
1948-Supplemental agreement amending 1947 contract was put into effect. The
union-security clause was changed from a closed-shop to a union-shop clause.
Feb. 1948-A union-authorization election was held in the group of production,
maintenance , delivery , refrigeration cabinet, and garage employees , at the five
Employers ' Philadelphia plants. The Atlantic City branches of Abbotts, Phila-
delphia, and Supplee, and the Allentown branch of Supplee, were included in the
voting group . The employees of the Wilmington branch were excluded because
Delaware law did not permit a union shop.
1949-New contract . The negotiations covered for the first time the Allentown
branch of Breyer ; the employees there are members of Local 463 , Teamsters.
1950-Supplemental agreement amending the 1949 contract . Included in the sup-
ABBOTTS DAIRIES, INC. 1067
The 1942 contract was orally accepted by Local 331, Teamsters,
representing the employees in the Atlantic City and Wildwood
branches.14 Thereafter, beginning with the negotiations at the close
of 1942, Local 331, Teamsters, participated in all subsequent nego-
tiations. Although the contracts in effect during the years .1942
through 1946, were applied to the Jersey shore employees, Local 331
did not actually sign the contracts in effect during those years. How-
ever, Local 331 did sign the 1947 contract and all subsequent con-
tracts 111
The contracts of January 1949, provided that a job evaluation of
all hourly rated jobs at the Employers' plants would be started and
completed within a year. All five Employers and the three inter-
vening unions participated in this undertaking. A committee of
employer and union representatives, during the course of about 100
meetings held over a period of 1 year, evaluated all the hourly rated
jobs in the Employers' plants covered by the 1949 contracts. The
committee is currently active and continues to study problems arising
out of the evaluation. Approximately 700 jobs existing in these
plants were described and evaluated and then consolidated into some-
what less than 200 job titles. The agreements of January 1950 and
January 1951, contain the schedule of these job titles, which, for wage
purposes, have been arranged in 14 wage classifications. Each of the
Employers, irrespective of whether particular job titles were utilized
in its plants, agreed to the inclusion of the schedule in its contract.
The above facts, particularly the participation of each of the
Employers through its representative in the joint negotiations and
the uniform adoption by the participants of the agreement resulting
from such negotiations, in our opinion, present clear evidence that each
Employer unequivocally intended to be bound in collective bargaining
by group rather than by individual action.16 This intent is empha-
sized by the further fact that the parties adopted the results of the
job evaluation study and used it as basis for their wage negotiations
in, 1950 and 1951. That there is no formal organization among the
Employers or that the results of the joint negotiation have been incor-
porated in separate uniform contracts instead of in a single agreement
signed by all parties, does not preclude the establishment of a multi-
employer unit 17
plement was the result of the job evaluation undertaken by the Employers and
Intervenors . The evaluation established approximately 200 job classifications and
the 1950 negotiations fixed wage scales for these jobs.
1951-The present contract amending the 1949 contract and extending its term to
January 25, 1953 Wage scales for the job classifications were revised.
14 See footnote 10, supra.
16 See footnote 13, supra.
'- Associated Shoe Industries of Southeastern Massachusetts , Inc, 81 NLRB 224.
Bunker Hill and Sullivan Mining and Concentration Company, 89 NLRB 243.
17 Balaban & Katz, 87 NLRB 1071.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cases Nos. 4-RC-1030, 1041
We conclude that the bargaining pattern outlined above establishes
a controlling history of multiemployer bargaining and that any unit
less comprehensive in scope, such as the two units sought as its
initial request by the United, limited to employees of Abbotts and
Philadelphia, respectively, is inappropriate.
We also find that the alternative unit requested by the United,
although multiemployer in scope, is inappropriate for the following
reasons:
In seeking to sever the employees in the refrigeration cabinet
departments from the present over-all units, the United contends that
these employees constitute a craft and, therefore, are entitled to sever-
ance. In the alternative, the United states that "even if this type of
work is not termed a strict craft, still it is of such a craft nature and
type as to entitle these employees to separate representation, if they
desire it." It is further contended that these employees are entitled
to separate treatment and departmental severance because they
constitute a distinct unit and department in each plant.
In Abbott Dairies, (Cardani Division),- the Board had before it
the similar question of whether the employees engaged in the installa-
tion, maintenance, and servicing of portable refrigerator units com-
prised "a sufficiently distinct and identifiable craft group to justify
their severance from the historical production, maintenance, transpor-
tation unit." The Board there concluded that the skills possessed by
these employees did not constitute them a recognized craft group,
and denied severance. The record in this case contains substantially
the same facts as were present in the earlier Abbott Dairies case.
Upon the entire record herein, we conclude that the refrigeration
cabinet employees do not constitute a craft such as would entitle
them to severance from the over-all unit.
We likewise find without merit the alternative contentions of the
United that these employees are entitled to separate representation
because of the craft-like nature of their work and their strict depart-
mental organization. The Employers, as a consequence of the sea-
sonal nature of the work, follow the policy of the transfer between
departments based upon availability of work in one and a surplus
of men in another. The record indicates that during the busy sum-
mer seasons, refrigeration cabinet utility men are temporarily trans-
ferred to production work, whereas in the slack season, production
employees are assigned work in the cabinet department. The system
followed by the Employers of permitting plant-wide bidding for
Is 97 NLRB No. 2.
ABBOTTS DAIRIES, INC. 1069
available jobs serves further to demonstrate the mobility of the Em-
ployers' work forces and to furnish evidence of the nonrigidity of
departmental lines.
Accordingly, as we have found that none of the units petitioned
for by the United is appropriate, we shall dismiss its petitions.
Case No. 4-RC-988
The Engineers, in requesting a unit composed of employees of the
Employers who are members of the Firemen, apparently accept the
Employers' position that the appropriate unit should be coextensive
with all the plants and facilities which were covered by the January
1949 and January 1951 contracts. Although maintaining that they
do not seek to disturb the unified bargaining, the Engineers state that
they wish to have themselves substituted for the Firemen as one of
the Unions in the unified bargaining. In requesting this substitution,
the Engineers contend that the Intervenors, though purporting to
represent the employees as "one" union, in reality are distinct unions
each representing a separate unit of employees, the Firemen repre-
senting maintenance employees, and the Teamsters representing the
production and delivery employees.
We cannot agree with this contention of the Engineers. The record
shows that both unions have members among employees who perform
maintenance work, and, similarly, both unions have members among
production employees. The seasonal nature of the ice cream industry
often requires, during the peak season, the temporary transfer of
maintenance employees to production work, and, during slack seasons,
the assignment of maintenance work to production employees. These
transfers are made without regard to the particular union affiliation
of the employees involved.
Examining closely the unit sought by the Engineers, we find that
as to certain job classifications, it would include those employees who
are members of the Firemen while excluding those employees in the
very same job classification who are members of the Teamsters.
Though the Engineers contend that their requested unit comprises
the maintenance employees of the Employer, the record shows that,
as delineated by the Engineers, the unit would exclude entirely many
employees in maintenance job categories solely upon the basis of their
nonmembership in the Firemen. In substance, the Engineers pro-
poses that we find a unit appropriate based solely on extent of or-
ganization. We are forbidden by Section 9 (c) (5) of the Act to do
this.'-' We find that the unit requested by the Engineers is not ap-
propriate, accordingly, we shall dismiss the petition.
19 Hall-Neal Furnace Company, 96 NLRB 212.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the basis of the entire record in the proceeding, the National
Labor Relations Board hereby orders that the petitions in Cases
Nos. 4-RC-988, 4-RC-1030, and 4-RC-1041 be, and they hereby are,
dismissed.
HERFF JONES COMPANY and INTERNATIONAL UNION, UNITED AuTo-
MOBILE , AIRCRAFT AND 'AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO, PETITIONER. Case No. 35-RC-563. January 16,
1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Robert Volger, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial 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-mem-
ber panel [Chairman Herzog and Members Houston and Styles].
Upon the entire record in this case, the Board finds:
1. Employer 1 is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent employees
of the Employer.2
3. No 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, for the following
reasons:
The Independent has represented the employees here involved for
many years. Its latest contract with the Employer was executed on
August 3, 1950, effective from July 1, 1950, to June 30, 1955, and sub-
ject to reopening on June 30, 1952, or yearly thereafter upon 90 days'
notice. This contract was amended on August 15, 1951, by deleting
a provision for the payment by the Employer to "all members of the
Union" for 1 holiday at Christmas, and providing instead for the
payment for 6 holidays to "all employees."
The Employer and the Independent assert that their current con-
tract is a bar to this proceeding. The Petitioner and the AFL con-
I The name of the Employer appears in the caption as amended at the hearing.
2 Permission to intervene was granted to Independent Jewelry Workers Union, herein
called the Independent , on the basis of its contractual interest, and International Jewelry
Workers Union, AFL, herein called the AFL, upon its showing of a sufficient interest in
the proceeding . Retail , Wholesale and Department Store Union , CIO, which also Inter-
vened, was permitted to withdraw its intervention without objection.
97 NLRB No. 165.