Foremost Dairies, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1948

80 N.L.R.B. 764 (N.L.R.B. 1948)

In the Matter of FOREMOST DAIRIES, INC., EMPLOYER and AMALGAM-
ATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA,
A. F. L., PETITIONER
Case No. 1O-RC-192.----Decided November 23,1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing of-
ficer of the National Labor Relations Board. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. At the hearing, the hearing officer reserved for
ruling by the Board the motion of the Employer to dismiss the pe-
tition on the ground that the unit sought by the Petitioner was inap-
propriate. For reasons stated in paragraph 4, infra, the Employer's
motion is hereby denied.
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 Petitioner claims to represent 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.
4. The Petitioner seeks a unit of all production and maintenance
employees at the Employer's Fayetteville, Tennessee, plant, exclud-
ing office, clerical, managerial, and professional employees, guards,
truck drivers, truck drivers' helpers, refrigeration service men, utility
men, and all supervisors as defined in the Act." The Employer con-
*Chairman Herzog and Members Houston and Murdock.
1 The unit description appears as amended, without objection, at the hearing.
80 N. L. R. B., No. 118.
764
FOREMOST DAIRIES, INC. 765
tends that the only appropriate unit is one comprising all its employ-
ees at the Fayetteville plant and at the wholesale warehouse in
Florence, Alabama, including the truck drivers, truck drivers' help-
ers, utility men, and refrigeration service men.
The Employer is engaged in the manufacture and distribution of
ice cream and water ice novelties at its Fayetteville, Tennessee, plant.
The wholesale warehouse in Florence, Alabama, serves as a distribu-
tion point for the products manufactured at the Fayetteville plant.
The two plants are approximately 90 miles apart. Although the em-
ployees at both plants are carried on a single pay roll which is pre-
pared in the Fayetteville plant, interchange or transfer of employees
between the plant and the warehouse is infrequent. Although the
Employer's over-all operations are in charge of a single manager,
whose headquarters are at the Fayetteville plant, the Employer has
a separate sales manager in charge at each plant, and the hiring is
done locally for each plant. There has been no history of collective
bargaining with respect to any of the Employer's employees.
In view of the foregoing, and upon the entire record in the case,
we are persuaded that a unit confined to the employees of the Em-
ployer's Fayetteville, Tennessee, plant is appropriate 2
The Petitioner seeks to exclude and the Employer to include the
following categories of employees at the Fayetteville plant :
The truck drivers perform the usual duties of such employees, haul-
ing materials to and from the Employer's plant. Unlike the produc-
tion and maintenance employees, they are paid on a salary basis and
have working hours, set by themselves, which are highly irregular.
In view of the fact that the duties and interests of the truck drivers
differ substantially from those of the production and maintenance
employees, we shall exclude them.'
The truck drivers' helpers assist the drivers in the performance
of their duties. When not required to act as drivers' helpers, these
employees work at various jobs inside the plant. We are of the
opinion that the duties and interests of the drivers' helpers are more
closely related to those of the truck drivers than to those of the pro-
duction and maintenance employees. Accordingly, we shall exclude
them.
The utility man performs various duties. He works as a processor
and as a truck drivers' helper, assists in the office and clerical work,
' See Matter of Seminole Manufacturing Company, 74 N. L. R. B. 1090; Matter of
Burgess Battery Company, 76 N. L. R. B. 820; Matter of Oklahoma Coca-Cola Bottling
Company, 78 N. L. R. B. 854; Matter of Century-American Corporation, 79 N L. R. B.
43; Matter of The Clark Th,ead Company, 79 N. L It. B 542
3 Matter of Farmers Produce Company, 72 N. L It. B 714; Matter of Arrow Linen
Service, Inc, 73 N. L. It. B. 868; Matter of Liggett & Myers Tobacco Company, 74 N. L.
R. B. 513; Matter of Concrete Pipe & Products Company , Incorporated, 74 N. L. R. B. 905.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and serves as an outside contact man. As the conditions of his em-
ployment are quite different from those of the production and mainte-
nance employees, and as many of his duties are the same as those
performed by employees who are excluded from the unit, we shall also
exclude the utility man from the unit.
The refrigeration service men spend a substantial part of their time
away from the plant repairing and maintaining refrigeration systems
at the premises of the Employer's customers. They assist in main-
taining refrigeration at the Employer's plant only on rare occasions.
Because their work requires them to be away from the plant the major
part of their time, we do not believe that the service men have sufficient
interests in common with the inside employees to be included in the
same unit. We shall therefore exclude them.4
We find that all production and maintenance employees at the
Employer's plant in Fayetteville, Tennessee, excluding office, clerical,
managerial, and professional employees, guards, truck drivers, truck
drivers' helpers, refrigeration service men, utility men, and all super-
visors, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
5. The Employer is engaged in operations of a seasonal nature.
Although there is no dispute as to the inclusion of seasonal employees
in the unit, the parties were in disagreement at the hearing with
regard to their voting eligibility, the Petitioner urging that they be
permitted to vote, and the Employer opposing it. They comprise
about half the total working force during the busy season. It appears
that the Employer's busy season, which extends from April to October,
has ended, and will not resume until April 1949. There is a large
turn-over from year to year. We find it unnecessary to pass upon
the voting eligibility of the seasonal employees who are no longer in
the employ of the Employer. Under the circumstances, we are of the
opinion that the purposes of the Act can best be effectuated by direct-
ing an immediate election, and by restricting, in accordance with our
usual policy, voting eligibility to those employees in the appropriate
unit who were employed during the pay-roll period immediately
preceding the date of the election.
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
4 We regard the testimony to the effect that production units at similar plants in the
area include outside men as too general in nature to have controlling weight. See Matter
of D. 0 . Frost Co., 72 N. L. R. B. 900.
FOREMOST DAIRIES, INC. 767
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Tenth Region, and subject to
Sections 203.61 and 203.62 of National Labor Relations 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 rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be-represented, for purposes of collective bar-
gaining , by Amalgamated Meat Cutters and Butcher Workmen of
North America, A. F. L.