Detroit Creamery Co.

National Labor Relations Board - Board Decisions

Sep 8, 1944

58 N.L.R.B. 125 (N.L.R.B. 1944)

In the Matter of DETROIT CREAMERY COMPANY, ARCTIC ICE CREAM
PLANT, and UNITED DAIRY WORKERS, LOCAL 83, AFFILIATED WITH THE
UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF
AMERICA, C. 1, O.
Case No. 7-R-1759.-Decided September 8, 1944
Butzel, Eaman , Long, Gust c Bills, by Mr. Rockwell T. Gust, of
Detroit , Mich ., for the Company.
Messrs . Nicholas J. Rothe and Russell Ballard, of Detroit, Mich.,
for the C. 1. 0.
Padway & Goldberg , by Mr . I. E. Goldberg , of Milwaukee, Wis.,
for the A. F. of L.
Mr. Julius Kirle , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Dairy Workers,
Local 83, affiliated with the United Retail, Wholesale and Depart-
ment Store Employees of America, C. I. 0., herein called the C. I. 0.,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Detroit Creamery Company, Arctic
Ice Cream Plant, Detroit, Michigan, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Robert J. Wiener, Trial Examiner. Said
hearing was held at Detroit, Michigan, on July 28, 1944. The Com-
pany, the C. I. 0., and the Milk Drivers and Dairy Employees, Local
Union 155, affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. of L., herein
called the A. F. of L., appeared and participated. All parties were
afforded full opportunity to be heard, to examine and cross- examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. All parties were afforded an oppor-
tunity to file briefs with the Board.
58 N. L. R. B., No. 23.
125
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Detroit Creamery Company, a Michigan corporation, operates a
plant at Detroit, Michigan, known as the Arctic Ice Cream Plant. It
is engaged in the manufacture of ice cream and related products.
During the year 1943, the Company purchased raw materials in ex-
cess of $1,000,000, in value, 28 percent of which was purchased from
sources in States other than Michigan. During the same period, the
Company's sales were in excess of $1,000,000, none of which were
made or delivered to sources in States other than Michigan.
We find that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
United Dairy Workers, Local 83, affiliated with the United Retail,
Wholesale and Department Store Employees of America,-C. I. 0., is
a labor organization admitting to membership employees of the
Company.
Milk Drivers and Dairy Employees, Local Union No. 155, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, A. F. of L., is a labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On March 30, 1944, the C. I. 0., by letter, advised the Company that
its employees desired to become members of the C. I. O. and requested
that the Company not renew its contract with the A. F. of L. The
Company refused to bargain with the C. 1. 0. because of the existence
of a contract with the A. F. of L. dated July 5, 1942 under which
the A. F. of L. was recognized as the exclusive bargaining representa-
tive. The A. F. of L. contends that this contract is a bar to the
instant proceeding. The contract provides that it should continue
in force and effect until July 5, 1943, and from year to year there-
after until terminated by either party by written notice 60 days
prior to the expiration day in any year. The C. I. O. filed a petition
for the determination of representatives on May 1, 1944. Since the
request on March 30, 1944, and the petition for a determination of
representatives filed on May 1, 1944, were prior to the effective date
of the contract's automatic renewal provision, we find that the con-
t ract does not constitute a bar to the instant proceeding.
DETROIT CREAMERY COMPANY 127
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the C. I. 0. and the A. F. of L. each represents
a substantial number of employees in the unit hereinafter found
appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The C. I. 0. seeks a unit comprising all employees of the Arctic
Ice Cream Plant in Detroit, Michigan, excluding clerical employees,
engineering and maintenance employees, and all supervisory em-
ployees with authority to hire', promote, discharge, discipline or other-
wise effect changes in the status of employees or effectively recommend
such action. The Company takes no position with respect to the
appropriate unit except to contend that two assistant superintendents,
one stockroom clerk and one timekeeper are supervisory employees
and should be excluded. The A. F. of L. seeks to include these four
'employees. The C. I. 0. apparently is agreeable to the inclusion
of the two assistant superintendents.
Assistant Superintendents.-The record clearly discloses that these
two employees have the authority to recommend the hire and dis-
charge of employees under their supervision and that such,recommcii-
dations are normally followed by the superintendent. We find that
the assistant superintendents fall within the Board's definition of
supervisory employees. We shall exclude them.
Stockroom Cleric.-The stockroom clerk has charge of the stock-
room. He has one man helping him and occasionally more than one.
The record does not disclose, however, that this employee, has th.3
authority to make effective recommendations with respect to the
status of this helper. This employee, in addition, is in effect a ship-
ping and receiving clerk and does a substantial part of the physical
labor involved in connection with the shipping and receiving. We
find that the stockroom clerk does not possess supervisory authority
within the Board's customary definition. We shall include him.
Timekeeper.-The evidence in the record is uncontradicted that this
employee compiles figures and records on the basis of which the
,IThe Regional Director reported that the C I O. submitted 115 cards, all of which bore
apparently genuine original signatures ; that the names of 97 persons appearing on the
cards were listed on the Company's pay roll of June 10, 1944, which contained the names
of employees in the appropriate unit ; and that 4 of these cards were dated in October 1943,
and the balance in April 1944. The pay roll of June 10, 1944, lists 164 employees in the
alleged appropriate unit.
The A. F. of L submitted an unsigned statement of dues payments for the month of
June 1944 One hundred thirty five names appeared upon the list and all were the names
of persons on the pay roll list of June 10, 1944.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the alleged unit are paid . Since it has been the Board's
practice to exclude such employees from plant=wide units of the kind
here involved , we shall exclude him.
We find that all employees of the Arctic Ice Cream Plant in De-
troit, Michigan , including the stockroom clerk, but excluding clerical
employees , engineering and maintenance employees , the timekeeper,
assistant superintendents , and all or any other supervisory employees
with authority to hire, promote , discharge , discipline , or otherwise
effect changes in the status of employees , or effectively recommend
such action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The A . F. of L . contends , over the objection of the C. I. 0.,'
that certain temporary or seasonal employees should not be permitted
to vote in the election , notwithstanding the fact that these seasonal
employees are presently covered by the Company 's contract with the
A. F. of L. and the Company has and does check off dues to the
A. F. of L with respect to all seasonal employees . The ice cream
season is at its "peak period" during the summer months and during
this period the Company is forced to take on additional employees.'
These seasonal employees are almost, if not entirely , high school boys
and girls , who work for the Company during the summer months.
Although the majority of them are employed after the close of school,
some of them start working part time shortly before school closes and
they leave the Company's employ in the fall . There is no evidence
of any attempt on the part of the Company to recruit the same
employees from year to year ; neither has the Company any policy
of recruiting permanent employees from among these seasonal em-
ployees. Inasmuch as these school boys and girls will terminate
their employment with the Company at the end of the summer season
and since it appears that these temporary employees , hired during
the "peak period," have no reasonable prospect of either permanent
or regular seasonal employment , we are of the opinion that they lack-
that community of interest with the permanent employees which
would entitle them to vote . Accordingly, we find them ineligible to
participate in the election.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of
Election herein , subject to the limitations and additions set forth in
the Direction.
DETROIT CREAMERY COMPANY
0 DIRECTION OF ELECTION
129
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Detroit Creamery
Company, Arctic Ice Cream Plant, Detroit, Michigan, an election by
secret ballot shall be conducted as early as possible, but not later than
thirty (30) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Seventh Region, act-
ing in this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among the employees in the unit found appropriate in Section
IV, above who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during the said pay-roll period because they were ill or on
vacation or temporarily laid off, and including employees of the armed
forces of the United States who present themselves in person at the
polls, but excluding seasonal employees and those employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, to determine whether they
desire to be represented by United Dairy Workers, Local 83, affiliated
with the United Retail, Wholesale and Department Store Employees
of America, C. I. 0., or by Milk Drivers and Dairy Employees Local
Union No. 155, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, A. F. of
L. for the purposes of collective bargaining, or by neither.
809591-45-vol. 68-10