Albert Lea Cooperative Creamery Association

National Labor Relations Board - Board Decisions

Dec 13, 1957

119 N.L.R.B. 817 (N.L.R.B. 1957)

ALBERT LEA COOPERATIVE CREAMERY ASSOCIATION 817
that has taken place since the filing of the petition, that the showing
does not meet our requirements as to substantial representation before
we-conduct an election. Accordingly, our direction of an immediate
election herein_ shall be subject to the submission by the Petitioner of
a sufficient- showing of interest among the employees in the unit when
such unit was substantial and representative.4 As already found,
that occurred as of the time of the hearing. In the circumstances, we
deny the motion.
[Text of Direction of Election omitted from publication.]
MEMBER JENKINS took no part in the consideration of the above
Decision and Direction of Election.
4 Cf. Mrs . Tucker's Products, Division of Anderson, Clayton d Company, Inc., 106 NLRB
533 at 535.
Albert Lea Cooperative Creamery Association 1 and General
Drivers, Inside Workers & Helpers, Local Union No. 845, affil-
iated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America ,2 Petitioner
'Albert Lea Cooperative Creamery Association and United Pack-
inghouse Workers of America, APL-CIO, Petitioner. - Cases
Nos. 18-RC-3357 and 18-RC-3369. December 13, 1957
DECISION, ORDER, AND DIRECTION OF ELECTION "
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Clarence A. Meter,
hearing officer. The hearing oiicerrs 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-
member panel [Chairman Leedom and Members Murdock and
Jenkins].
Upon the entire record in this ease, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor orgaiiizations involved- claim to represent certain
employees 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.
1 The name of the Employer appears as corrected at the hearing,
$ The Board having been notified by the AFL-CIO that it deems the Teamsters ' certi-
ficate of affiliation revoked by convention action, the identification of this union is hereby
amended. -
119 NLRB No. 96.
4 7 63 2 1--5 8-voL 119-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Employer is engaged in the processing and retail and whole-
sale distribution of dairy products. It operates 2 plants, one at
Albert Lea, Minnesota, where its butter and milk processing opera-
tions are located, and the other about 9 miles away at Twin Lakes,
Minnesota, where it is engaged in milk drying operations.
United Packinghouse Workers of America,3 the Petitioner in Case
No. 18-RC-3369, seeks a unit of all production and maintenance
employees at both plants,' including all truckdrivers. The employer
agrees that a two-plant unit is appropriate, but disagrees as to the
unit placement of certain employees. General Drivers, Inside Work-
ers & Helpers, Local Union No. 845, the Petitioner in Case No.
18-RC-3357, seeks a unit of all inside employees I at the Twin Lakes
plant only, and does not wish to participate in an election if the Board
finds that only a two-plant unit is appropriate. There is no history
of bargaining at either plant.
At the Albert Lea plant, there are approximately 53 employees
within the unit sought by the UPWA, including butter manufacturing
employees; grade A milk processing employees; laboratory
employees; storage and shipping employees; retail store employees;
and truckdrivers, who are classified as farm can pickup haulers, bulk-
tank pickup haulers, and retail and wholesale salesmen . Each of
these departments is under the supervision of a foreman who has the
authority to hire and fire or effectively recommend such action. The
Twin Lakes plant was established about 2 years ago to house the
Employer's milk-drying operations. This site was selected because
zoning restrictions at Albert Lea prevented expansion of the Albert
Lea plant for that purpose. At the time of the hearing there were
approximately 10 employees at the Twin Lakes plant, including a
foreman, a weighman, a separator man, a pan man, and storage and
warehouse employees e
There is a considerable degree of integration between the Albert
Lea and Twin Lakes plants. Both are under the direct supervision
of the Employer's general manager. Further, while the present Twin
Lakes foreman, who is relatively new in that position, was being
trained, the supervisor of quality control and field service, who is
stationed at Albert Lea, was placed in charge of the Twin Lakes plant.
3 Hereinafter referred to as the UPWA.
d The unit as described in the UPWA' s petition is "production and maintenance and
laboratory employees and trnckdrivers, excluding office, clerical, and supervisory em-
ployees." The UPWVA's specific unit contentions as developed at the hearing are discussed
hereinafter.
5 The unit as described in the petition excludes office clerical employees, salesmen, and
supervisors. However, the record indicates that there are no office clerical employees,
salesmen. or truckdrivers employed at the Twin Lakes plant,
The Twin Lakes operation is seasonal in that production expands during the slimmer
months, and the Employer expected to lay off two employees shortly after the hearing,
However, the increase in the employee complement appears to be slight, and there was na
contention that any election herein should be postponed until the next peak season.
ALBERT LEA COOPERATIVE CREAMERY ASSOCIATION 819
At the time of the hearing, this supervisor was serving in an advisory
capacity to the Twin Lakes foreman, visiting the Twin Lakes plant
each morning to check on the operation. There is only one business
office, located at Albert Lea, at which all permanent production rec-
ords are kept,' and all payroll,' accounting, purchasing, and sales
functions are handled. Personnel functions are centered at Albert
Lea, all recommendations for hiring and firing of personnel being
passed upon by the general manager.' The foreman of the Twin
Lakes plant has a desk at the Albert Lea plant for his files and papers
pertaining to the operation at Twin Lakes. In the course of opera-
tions, it is normal for various Albert Lea employees to work in both
locations 10 Fieldmen stationed at Albert Lea and laboratory
employees from the Employer's only laboratory, which is located at
Albert Lea, go to Twin Lakes for sampling; maintenance employees
from Albert Lea go to Twin Lakes in the event of major breakdowns;
production employees and farm can pickup haulers may be sent to
Twin Lakes to assist in loading during peak production periods; and
the same haulers make deliveries to both plants, all instructions to the
haulers being given from the Albert Lea plant. There is also some
interchange of materials. Although the milk to be processed at each
plant is usually delivered directly to that plant and each plant has its
own weighing room, excess grade A milk is sent from Albert Lea to
Twin Lakes for drying, and the milk delivered to Twin Lakes is
separated and the cream sent to Albert Lea for processing.
On the basis of these facts, particularly the temporary assignment
of Albert Lea employees to assist at Twin Lakes; the integration of
the work of the haulers, fieldmen, and laboratory employees with the
operations of both plants ; and the centralized control of the
Employer's operations, labor relations policy, and management func-
tions, we find that only the two-plant unit sought by the UPWA is
appropriate." We shall, therefore, dismiss the petition in Case No.
18-RC-3357.
R The foreman at the Twin Lakes plant keeps production records which he sends to
Albert Lea daily. Apparently no permanent records of any kind are maintained at Twin
Lakes.
S The Twin Lakes plant employees are paid on an hourly basis, whereas all but 3 or 4
employees at the Albert Lea plant are salaried. The timecards of the Twin Lakes em-
ployees are forwarded to the office at Albert Lea, where the wages are computed'and pay-
roll checks issued. The checks are usually delivered to the Twin Lakes foreman for dis-
tribution but on occasion the head of the payroll section distributes such checks.
6 Application for employment at the Twin Lakes plant is made to the foreman of that
plant, who interviews the applicant and refers the application to the general manager for
decision. Apparently the same procedure may be followed at the Albert Lea plant. It ap-
pears that in case of any serious misconduct, all foremen have the authority to discharge
without prior consultation with the general manager but subject to his later review of the
action.
10 There is one instance of a permanent transfer of an employee from Albert Lea to Twin
Lakes, and one employee was permanently transferred from Twin Lakes to the milk room
at Albert Lea. Twin Lakes employees have not been temporarily assigned to assist at the
Albert Lea plant, since the larger staff at the latter plant makes this unnecessary.
11 See Poultry Producers Association, 114 NLRB 1186.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The UPWA would include and the Employer would exclude all
truckdrivers (farm can and bulk-tank pickup haulers and retail and
wholesale driver-salesmen), the foremen of the milk room bottling
department, the fieldman for the quality control program on manu-
factured milk and cream, one laboratory employee, and the butterfat
tester.
The Employer takes the position that "because of the transition
that is being made and has been. going on for at least a year or 2"
under which all of its haulers and salesmen will be placed on a con-
tract basis and allegedly become independent contractors, all such
trucldrivers should be excluded from the unit. At the time of the
hearing, there were only 2 retail and 1 wholesale salesmen working
under contract." As to the employee salesmen and the haulers, since
a unit determination must depend on the present status of the
employees involved and not on speculation as to possible future
methods of operation, and since no labor organization is seeking to
represent them separately, we shall include the noncontracting retail
and wholesale salesmen and the farm can and bulk tank pickup
haulers in the unit.13
As to the contract salesmen, under the terms of the retail salesman
contract, which is terminable upon 30 days' notice, the Employer
agrees to sell its product to the salesman for delivery on a route or
in an area determined upon and established by the Employer, for
resale at prices to be determined based on market conditions, and to
keep records and do all bookkeeping for the salesman at a fixed fee
per month. The salesman agrees to furnish and maintain a truck and
any other necessary equipment, to carry property damage and public
liability 14 insurance, to settle with the dairy at least monthly, and
to furnish a $1,000 indemnity bond. The contract further provides
that the salesman shall be responsible for all accounts, that he "may
have certain approved charge accounts," and that the Employer will
be of such assistance as it can in handling collections. The wholesale
salesman contract is substantially the same, but the wholesale sales-
man agrees to make daily deliveries to the retail commercial trade
in the territory designated, to obtain signed receipts from customers
"The record does not indicate the total number of drivers in the disputed categories.
The genera ] manager testified that some of the farm can pickup haulers were working
under contract but that he was not certain of the number . However, by a letter from the
Employer's attorney , which by stipulation of the parties we hereby incorporate into the
record of this case, this testimony was corrected to show that none of those haulers were
under contract at that time. The general manager further testified that some 9 months
prior to the hearing the Employer' s Board of Directors had decided that the farm can
pickup routes were to be put under contract as soon as possible where good , reliable
men could be secured to operate the trucks.
13 Plankinton Packing Company ( Division of Swift d Co.), 116 NLRB 1225 ; 'Aluminum
Company of America ( Harvard Plant , Cleveland ), 80 NLRB 1342 . We do not decide
whether in the event these employees are placed on a contract basis they will remain em-
ployees or become independent contractors.
14In • practice, the employer is a party to and pays a percentage of the premium for the
public liability insurance.
ALBERT LEA COOPERATIVE CREAMERY ASSOCIATION 821
for deliveries, and to report deliveries daily to the Employer. Both
retail and wholesale salesmen agree to account daily for any' cash
payments received, and, in the event of termination of the contract
for' any reason, not to compete with the Employer for a period of
6 months,
In practice, contract salesmen finance the purchase of their own
equipment and pay for all maintenance.15 However, these trucks
bear the name of the Employer, are indistinguishable from trucks
driven by employee-salesmen, and are used exclusively in performing
services for the Employer.16 The Employer furnishes the salesmen
with a list of customers and assists them in working up their routes.
Contract and noncontract salesmen are under the same supervision,
and they apparently perform identical duties, the difference being
that the contract salesmen are responsible for collections whereas
employee salesmen are not. However, the Employer bills directly
some wholesale customers of the wholesale contract salesman and
credits the salesman 's account. Contract salesmen are paid solely on
a commission basis," represented by the difference between the selling
price to the customer and the cost of the products to the salesmen,
whereas employee salesmen receive a salary plus commission. How-
ever, contract salesmen follow the same procedure as employee sales-
men in securing the Employer's products for resale, completing the
same type of order form, having their trucks loaded ' in the same
fashion, and making no payment to the Employer in advance of sales
to customers. At the end of each day, contract salesmen are credited
for unsold products remaining on their trucks. The Employer testi-
fied that if a contract salesman were not serving his route satisfac-
torily, the contract right to terminate would probably be exercised.
In the event of a contract salesman's inability to serve his route for
any reason, one of the checkers and sometimes the supervisor sub-
stitutes for him.
The Board has frequently held that in determining the status of per-
sons alleged to be independent contractors, the Act requires the ap-
plication of the "right of control" test.'8 Where the person for whom
the services 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; while, on the other hand, where control is reserved
is Contract salesmen may make their own selection of a garage to service their trucks, but
the Employer has a "fleet" arrangement with several garages and the contract salesmen
actually select one of these garages for repairs.
19 The general manager testified that the trucks of the contract salesmen were not sup-
posed to be used for other purposes, and if they were so used it was without his
.knowledge.
11 Withholding taxes are deducted only if the contract salesman requests it. No social-
security payments are made for them, and the Employer did not know whether they.would
be:covered by workmen's compensation or unemployment compensation. , .: ,
?'$American . Broadcasting Company, a Division of American Broadcasting -Paramount
Theatres, Inc., :et at., 117, NLRB 13; The H. E. Koontz Creamery, Inc., 102 NLRB 1619.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only as to the result sought, the relationship is that of an independent
contractor. The resolution of this question depends on the facts of
each case, and no one factor is determinative. We are satisfied, on
the basis of the entire record, that the contract salesmen are employees
of the Employer. The facts that social-security and withholding
taxes may not be deducted and that the contract salesmen own and
maintain their own equipment are not controlling.19 The Employer's
assistance in building up routes; the limitation on the prices which
the salesmen may charge; the requirement that it approve charge ac-
counts of retail salesmen; the requirement of daily reports and daily
settlement of cash receipts ; the fact that the Employer maintains all
records, although a fee is charged; and the fact that the contract
salesmen's trucks are indistinguishable from those driven by the
noncontract salesmen and may not be used for purposes other than
making the Employer's deliveries are consonant with an employer-
employee relationship, rather than with the independent contractor
status of the disputed salesmen. This indicates that the Employer
exercises a substantial measure of control over the means, as well as
the results, of their work 20 Accordingly, as we find that the contract
salesmen are employees, we shall include them in the unit along with
the employee salesmen .21
The Employer contends that the fieldman for the quality control
program on manufactured milk and cream 22 should be excluded as
a supervisor and as a managerial employee, since he has the power
to make decisions. This employee works largely without supervision.
His duties include visiting the farmer-producers to check their com-
pliance with city, State, and Federal public health laws; making
microscopic tests for bacteria count and reporting the results of the
tests to the producers ; and making recommendations to the producers
to help them eliminate difficulties. The fieldmen are required to be
licensed by the State as graders and testers 21 and anyone with a State
license can refuse to buy dairy products that are unfit for human con-
sumption. It is this authority on which the Employer bases its con-
tentions. As to his alleged supervisory status, the disputed employee
exercises no supervisory authority as defined in Section 2 (11) of the
Act, and is therefore not a supervisor within the meaning of the Act.
As to his alleged managerial status, the Board does not consider the
performance of duties requiring the exercise of judgment to be an in-
1e American Broodca.4tina Company, a Division of American Broadcasting-Paramount
Theatres, Inc., supra ; The H. E. Koontz Creamery, Inc., supra.
20 The H. E. Koontz Creamery, Inc., supra : Burton Beverage Company, 116 NLRB 634,
Royal Crown Bottling, Company of Puerto Rico, 102 NLRB 309.
11 The H. E. Koontz Creamery, Inc., supra.
9' The parties agreed that the supervisor of quality control and field service and the
fieldman for grade A milk and supervision, who perform similar duties, also perform super-
visory functions and should be excluded from the unit.
23 The disputed employee, who recently came to work for the Employer from another
State, was asked at the time he was hired to secure such a license , but the general
manager testified that he did not know whether the employee had done so.
ALUtRT LEA COOPERATIVE CREAMERY ASSOCIATION 823
dication of managerial status per se,24 nor do the lack of close super-
vision and freedom to exercise considerable discretion render an em-
ployee managerial where his decisions must conform to the employ-
er's established policy.25 Since the fieldman for the quality control
program on manufactured milk and cream is clearly not on the policy-
making level of the Employer's organization, we find that he is not a
managerial employee.26 Accordingly, we shall include him in the
unit.
The Employer would exclude as a technical employee the laboratory
tester who makes standard microscopic and plate-count reading tests
for bacteria count.27 This tester is licensed by the State as a grader
and tester but performs routine, standardized tests and has only a high
school education.28 We have frequently held that testers perform-
ing similar functions are not technical employees,29 and since we have
consistently held that testers and inspectors have interests which are
sufficiently allied to those of production and maintenance employees
to warrant their inclusion in the same unit,30 we shall include the
laboratory tester in the unit herein.
The Employer would exclude the butterfat tester as a supervisor
or as a technical employee. This employee works in the butter de-
partment and occasionally helps in other departments. He is the
only person performing the butterfat tests, which appear to be routine,
and has no employees working under him.31 Since the butterfat tester
has no supervisory functions, he is not a supervisor within the mean-
ing of the Act; 32 and since he performs routine tests, he is not a
technical employee 33 Accordingly, we shall include him in the unit.
The UPWA contends that the foreman of the milkroom bottling
department is not a supervisor because he spends the greater portion
of his time on production work, and therefore should be included in
the unit. As previously noted, the Employer seeks the exclusion of
this foreman. Although the general manager was unable to cite spe-
cific instances of the exercise of such authority, apparently this
employee has the authority to hire and fire and recommend such
action.34 In addition, although the foreman fills in for absent pro-
duction employees as needed, the testimony indicates that he is
24 Pastern Corporation, 116 NLRB 329.
w Northwestern Bell Telephone Company, 79 NLRB 549.
3a Northwestern Bell Telephone Company, supra.
er The laboratory tester also tests for butterfat content on occasion.
29 Although the general manager testified that this position requires certain qualifica-
tions, he did not state what they were, and he did not know where the tester presently
employed had secured her training.
20 Prairie Farms Creamery of Bloomington, 116 NLRB 1237; Wells Dairies Cooperative,
307 NLRB 1445; Greenbrier Dairy Products Company, 100 NLRB 432.
00 Prairie Farms Creamery of Bloomington, supra.
91 In the event he needs assistance, the laboratory employees do some of the testing.
30 Vernon Calhoun Packing Company, Inc., 117 NLRB 104.
e3 Greenbrier Dairy Products Company, supra.
3* The Board has held that it is the existence, not the exercise, of such authority that
determines whether an employee has supervisory status. The Eavey Company, 115 NLRB
1779.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsible for the operation of his department and directs the work
of the other six employees in the milkroom bottling department. In
view of these factors, we find that the foreman of the milkroom
bottling department is a supervisor and shall exclude him from the
unit 35
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act : All production and maintenance employees 31
at the Employer's Albert Lea and Twin Lakes, Minnesota, plants,
including all truckdrivers,37 the fieldman for the quality control pro-
gram on manufactured milk and cream, the laboratory tester, and
the butterfat tester, but excluding office clerical employees, retail store
employees,38 the supervisor of quality control and field service, the
fieldman for grade A milk service and supervision, the foreman of
the milkroom bottling department, the supervisor of farm pickup,
the supervisor of the bulk division, 39 and all other supervisors as
defined in the Act.
[The Board dismissed the petition in Case No. 18-RC-3357.]
[Text of Direction of Election omitted from publication.]
35- Pearl Packing Company, 116 NLRB 1489.
30 Since the record does not reveal whether employees laid off at the end of the Twin
Lakes plant ' s peak season have a reasonable expectancy of reemployment , such laid-off em-
ployees may vote subject to challenge , and we will further investigate the facts relating
to their status in the event that their votes become determinative of the results of the
election.
ar As indicated above , this category includes all farm can pickup haulers , all bulk tank
pickup haulers , and all retail and wholesale salesmen.
38 The parties agreed to the exclusion of the two employees who work in the Employer's
retail store.
- 31 Although the UPWA and the Employer agreed that the supervisor of the bulk division
should be included because he spends the greater portion of his time performing non-
supervisory duties, the testimony indicates that he performs functions similar to those of
the supervisor of farm pickup , whom the same parties agreed is a supervisor and should
be excluded . Since the testimony indicates that those functions include the authority
to hire and fire or effectively recommend such action , we find that the supervisor of the
bulk division is a supervisor within the meaning of the Act and exclude him from the
unit , notwithstanding the agreement of the parties . Jones-Dabney Company, Division of
Devoe d. Raynolds Co., 116 NLRB 1556.
Sylvania Electric Products, Inc. and International Union of Elec-
trical , Radio and Machine Workers, AFL-CIO , Petitioner.
Cases Nos. 6-RC-1851 and 6-RC-1852. December 13, 1957
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Direction of Election issued March 22,
1957,1 elections by secret ballot were conducted on April 12, 1957,
s Notreported in printed volumes :of BoardDecisions and Orders.
119 NLRB No. 112.