Fairmont Foods Co.

National Labor Relations Board - Board Decisions

Mar 1, 1949

81 N.L.R.B. 1092 (N.L.R.B. 1949)

In the Matter of FAIRMONT FOODS COMPANY,1 EMPLOYER and UNITED
PACKINGHOUSE WORKERS OF AMERICA, CIO, PETITIONER
Case No. 39-RC-22.-Decided March 1, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing officer
of the National Labor Relations Board. 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization named below claims to represent em-
ployees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer, within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks a unit of all production and maintenance
employees at the Employer's two plants in Giddings, Texas, and nine
branch stations located in the area. The Employer contends that a
single bargaining unit covering its plants and branch stations is in-
appropriate and further objects to the inclusion of certain categories
of employees in the requested production and maintenance unit.
The Employer is engaged in slaughtering and distribution of poul-
try, and processing and distribution of eggs, dairy products, and feed.
It operates two plants in Giddings, Texas, which are located 3 blocks
1 The Employer 's name appears as amended at the hearing.
* Reynolds , Murdock, and Gray.
81 N. L. R. B., No. 166.
1092
FAIRMONT FOODS COMPANY 1093
apart. In the smaller plant (the feed mill) it mills feed and operates
a hatchery, and in the larger plant (the poultry and egg plant), it
conducts the balance of its production operations. In addition, the
Employer operates within a radius of 15 to 85 miles from Giddings,
nine branch stations,2 which serve as retail outlets for the plants at
Giddings and which also purchase poultry, eggs, and cream for the
Employer.
At its larger plant in Giddings, the Employer slaughters poultry
and processes eggs. The work is seasonal . The number of employees
at the plant varies between 85 and 245. On the other hand, the jobs
at the feed mill are constant and between 8 and 10 persons are em-
ployed there. Both plants are supervised by a single general manager;
but, each plant has its own foremen. The employees at the feed mill
and the employees at the poultry and egg plant are not generally inter-
changeable . However, during the height of the turkey season, the
feed mill employees, although not required to do so, are permitted to
earn additional compensation by doing extra work at the poultry and
egg plant. There is only one night crew which loads and unloads
trucks at both the poultry and egg plant and the feed mill; and the
night engineer, who also discharges the duties of a night watchman
at the poultry and egg plant, makes three nightly inspections of the
hatchery at the feed mill whenever the hatchery is in operation. Fur-
thermore, the same trucks carry products to and from both plants.
We are of the opinion that the operations of both plants are sufficiently
united and the interests of the employees sufficiently allied to include
into a single bargaining unit the employees at the poultry and egg
plant and the feed mill .3
The functions of the branch stations, however, are dissimilar from
those of the plants at Giddings. The employees at these stations do
not do any production work but sell the Employer's products at re-
tail and in addition purchase poultry, eggs, and cream for the Em-
ployer. Each branch station has a manager and from two to five
helpers. There is no interchange of employees between the branch
stations and the Giddings plants. The managers of the branch sta-
tions apparently hire their helpers and pay them the rate of wage pre-
vailing in the area. In view of the distances separating the branch
stations from the Giddings plants, and the absence of evidence in the
record indicating any substantial community of interest between the
2 On the date of the hearing one of the branch stations , located at Caldwell , Texas, was
closed.
3 See Matter of Enid Co - Operative Creamery Association, 79 N. L . R. B. 444; Matter of
Armour and Company, 69 N. L. R. B. 205.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees at the branch stations and the Giddings plants,4 we find
that the employees at the branch stations should be excluded from any
unit of production and maintenance employees at the Giddings plant .-5
The Employer objects to the inclusion of employees in the following
categories in any unit which we may find appropriate :
Drivers : The Employer employs three delivery and two procure-
ment drivers. Delivery drivers sell and deliver poultry, eggs, and
feed to the Employer's customers , collect money from them, and pick
up and transport live poultry and eggs to the plant. Procurement
drivers purchase live poultry and eggs from farmers and transport
such products to the plant; they also grade and appraise the commodi-
ties purchased; they issue company drafts in exchange for the pur-
chases and, upon their return to the plant, make reports of purchases
made and drafts issued. Both delivery and procurement drivers are
bonded employees and are interchangeable. The drivers perform no
duties at the plants.6 Since it appears that the primary function of
the drivers is buying and selling, which is similar to the principal func-
tion of the employees at the branch stations, we shall exclude them
from the unit .7
Mechanic's Helper: This employee works in the garage. He serv-
ices the Employer's trucks and assists the head mechanic. On infre-
quent occasions he works in the plant, but at such times he remains
under the supervision of the garage foreman . ' In addition he also
makes deliveries. He is bonded as are the regular drivers, has a chauf-
feur's license and when assigned to driving, his duties are the same
as those of the delivery drivers. Since his interests are more closely
allied to those of the drivers than the production and maintenance
employees, we shall exclude him from the unit.8
Hatchery employees: The Employer operates a hatchery which is
located at the feed mill. The hatchery is not in constant operation.
There is one laborer employed at the hatchery who candles eggs, sets
the machines, places eggs in trays for hatching, and keeps the place
clean. He is employed at the hatchery all year regardless of whether
4 See Matter of W. C Nabors Company, 79 N. L. R. B . 40; Matter of Burgess Battery
Company, 76 N. L. R. B. 820; Matter of Farmville Manufacturing Company, 76 N. L. R. B.
237.
6 We shall also exclude from the unit W. G. Mean, the cream tester at the feed mill in
Giddings It appears from the record that his principal activities are to purchase cream
and to sell at retail the Employer ' s products and that his duties are similar to those of
employees at the branch stations
6 There is testimony that drivers sometimes build turkey coops and egg cases at the
plants However, it appears that they do this work because they require the boxes on
their trucks.
7 Matter of Enid Co-operative Creamery Association , 79 N L. It. B 444 ; Matter of Fair-
mont Creamery Co , 73 N L. R. B 792
8Matter of Vancouver Plywood & Veneer Company, 79 N. L It. B. 708; Matter of
Ferguson-Steere Motor Company, 76 N. L. R. B. 1122.
FAIRMONT FOODS COMPANY 1 095
the hatchery is in operation. There is also a hatchery manager who
tests and culls farmers' poultry flocks, purchases and hatches eggs, sells
baby chicks to farmers and assists them in raising poultry. The ac-
tivities of these two employees are limited to the hatchery and related
work. Since we have held that such activities constitute "raising of
poultry," although confined to a commercial hatchery located in a city,
and that employees engaged in such activities are employed as agri-
cultural laborers within the meaning of Section 2 (3) of the National
Labor Relations Act and Title III of the National Labor Relations
Board Appropriations Act of 1949,9 we shall exclude these employees
from the unit.
Night Receiver: This employee is in charge of the night force
which does loading and unloading in the poultry and egg plant and
the feed mill. At night there is no one else present to whom the night
laborers can look for direction. His responsibilities are similar to
those of shift foremen whom we have held are supervisors within the
meaning of the Act 10 and accordingly we shall exclude him from the
unit.
Night Engineer: The Employer contends that this employee is a
guard and should be excluded from the unit. However, it appears
from the record that his principal duties are devoted to maintenance
and janitorial work and that he spends a relatively small amount of
time acting as watchman. Accordingly, we do not find that he is a
guard within the meaning of the Act and shall include him in the
unit.,'
Day Engineer: Fred Wenke, the day engineer , does general main-
tenance work about the plant. In addition, about 6 months of each
year he is in charge of the "killing room" where poultry is killed,
plucked, and processed. He responsibly directs the activities of the
employees who work in the "killing room" and all such employees are
informed when hired that Wenke is their "boss." Furthermore, he has
the authority to discharge other employees and on at least two occa-
sions has exercised such authority. We find that Wenke is a super-
visor within the meaning of the Act and shall exclude him from the
unit.12
We find, therefore, that all production and maintenance employees
at the Employer's poultry and egg plant and feed mill in Giddings,
9 Matter of Lindstrom Hatchery and Poultry Farm, 49 N. L . R. B. 776; See also Miller
Hatcheries, Inc. v . Boyer, 131 F. (2d) 283.
10 Matter of Valaer & Spies Milling Company , 78 N L . R. B. 324; Matter of The American
Sugar Refining Company , 76 N. L. R. B. 1009 ; Matter of Fab-Weld Corporation, 74
N. L. R B 1364
I1 See Matter of Steelweld Equipment Company, Inc., 76 N. L. It. B. 831.
11 Matter of United States Gypsum Company, 79 N. L. R. B. 536; Mat ter of Granite
Textile Mills, Inc., 76 N. L. It. B. 613.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas, including the night engineer, but excluding office clerical em-
ployees, the cream tester, delivery drivers, procurement drivers, the
mechanic's helper, hatchery employees, the night receiver, the day
engineer, and other supervisors 13 as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor Re-
lations Board Rules and Regulations-Series 5, as amended, among
the employees in the unit found appropriate in paragraph numbered
4, above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill,
or on vacation or temporarily laid off, but excluding those employees
who have since quit or been discharged for cause and have not been re-
hired or reinstated prior to the date of the election, and also exclud-
ing employees on strike who are not entitled to reinstatement, to de-
termine whether or not they desire to be represented, for purposes of
collective bargaining, by United Packinghouse Workers of America,
CIO.
is Excluded from the unit is Herbart Itieschnick whom the parties agree is a supervisor.