Foremost Dairies, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1949

86 N.L.R.B. 585 (N.L.R.B. 1949)

In the Matter of FOREMOST DAIRIES, INC., EMPLOYER and AMALGAMATED
MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL,
PETITIONER
Case No. 10-RC-655.-Decided October 18, 19.19
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before William J.
Rains, hearing officer. The hearing officer's rulings made at the hear-
ing 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-member panel [Chairman Herzog and Members
Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. Foremost Dairies, Inc., a corporation with its principal executive
office in Jacksonville, Florida, and with plants located in several
southern States, is engaged in the business of purchasing, processing,
and distributing dairy products. We are here concerned only with the
Employer's operations in Columbia, Tennessee.'
During the 12-month period ending June 15, 1949, the Employer's
predecessor purchased for use at the Columbia plant, raw materials,
consisting of milk, cream, and cheese supplies valued in excess of
$1,000,000, of which approximately 10 percent was shipped from
points outside the State of Tennessee. During the same period the
Employer's predecessor processed and sold finished dairy products
valued at approximately $1,000,000, of which approximately 50 percent
was sold and shipped to points outside the State.
We find, contrary to the Employer's contention, that its activities
affect commerce within the meaning of the National Labor Relations
Act.2
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
The Employer purchased this plant on June 15 , 1949, from the Tuell Dairy Company.
z Matter of Enid Cooperative Creamery Association, 79 N. L . R. B. 444.
86 N. L. R. B., No. 81.
585
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 appropriate unit :
The Petitioner seeks a unit of all production and maintenance em
ployees at the Employer's plant at Columbia, Tennessee, including
truck drivers,3 but excluding office, clerical, professional and man-
agerial employees, salesmen, field men,4 guards, and supervisors as
defined in the Act. The Employer is in general agreement with the
unit, except that it would include the procurement or field men.
The Employer's plant consists of two separate buildings, one for
the receipt, processing, and sale of milk and cream, designated as the
Grade A side, and the other for the processing and sale of cheese,
designated as the Grade B side. These operations constitute two
separate departments. The unit sought by the Petitioner includes
employees in both departments.
All the Employer's employees work the same shift and sub-
stantially the same number of hours. They are interchanged between
departments as the work requires, have a common pay day and pay-
roll period, and are eligible for participation in a group-insurance
policy. They are all under the direct supervision of the general man-
ager who is the only supervisor in the plant with the authority to
hire and discharge. We find that a single unit of production and
maintenance employees at the Employer's Columbia, Tennessee, plant
is appropriate.
Procurement vnen. There are two procurement or field men in the
plant. As noted above, the Petitioner would exclude and the Em-
ployer would include these employees. They are charged with the
duty of inspecting dairy barns, equipment, and herds of the Em-
ployer's suppliers to see that the proper quality of milk is delivered
and that the equipment used meets minimum requirements. They
also supervise the installation of new dairy equipment by suppliers
and condemn any equipment which does not meet the required stand-
ards. Most of their time is spent in these functions far removed from
the plant. We find that the duties and interests of the procurement
men differ from those of the production and maintenance employees
and we shall, therefore, exclude them from the unit.'
Alleged supervisors. The parties further disagree as to the super-
visory status of several employees. The Petitioner contends that Joe
Hill, Maynard Jones, Corlice Lovell, and Edward Johnson are super-
8 As amended at the hearing.
* Classified by the Employer as procurement men.
5 Member Murdock , however, does not feel that the duties and interests of these two
procurement men are so divergent from those included in the unit that they should be
excluded from the unit and left unrepresented . He would have included them.
FOREMOST DAIRIES, INC. 5877
visors and should be excluded from the unit. The Employer took the-
position at the hearing that Edward Johnson was the only employee-
in this group who should be excluded. In its brief, however, the-
Employer contends that Corlice Lovell is the only one who should be-
excluded as a supervisor.
Joe Hill is the pasteurizer in the bottling room in the Grade A
department. He operates a pasteurizer machine and separator, keeps
records and makes reports on the gallonage of milk processed. He-
receives a slightly higher wage rate because of his cumulative service-
with the Employer. However, he exercises no supervision over any
other job or employee. We find that Joe Hill is not a supervisor-
within the meaning of the Act.
Maynard Jones is one of two maintenance employees in the Grade'
A department. He is responsible for the maintenance and repair of
the milk processing equipment throughout the plant whereas the
other maintenance employee is primarily responsible for the upkeep
of the delivery trucks. The two maintenance employees receive the-
same rate of pay and on occasions work together. They do not in-
struct or supervise any employees and work directly under the general
manager. We find that Maynard Jones is not a supervisor within the-
meaning of the Act.
Corlice Lovell is the pasteurizer in the Grade B department. He has.
an assistant and about eight employees under him. He instructs, and
directs the operations of the other employees in the department, keeps.
records and makes reports on the work of the department, receives a.
higher wage rate than the other employees in the department and can-
effectively recommend the discharge of employees. We find that Cor--
lice Lovell is a supervisor within the meaning of the Act.
Edward Johnson, foreman of the cheese room in the Grade B depart-
ment, is responsible for the quality of the Employer's product and is-
the highest paid employee in the department. He prepares reports.
on the operations of the department, instructs and generally oversees-
the work of 8 to 10 employees. He designates their working hours to.
accommodate rush or slow periods of operations and can effectively-
recommend wage increases. We find that Edward Johnson is a super-
visor within the meaning of the Act.
Accordingly, we find that all production and maintenance employees
at the Employer's plant in Columbia, Tennessee, including truck,
drivers but excluding office, clerical, professional and managerial em-
ployees, salesmen, procurement men, guards, and all supervisors as
defined in the Act,6 constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.-
6 As noted above , this includes Corlice Lovell and Edward Johnson.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The determination of representatives :
The Employer urges the Board to refrain from directing an election
at this time. In its brief, the Employer states that it is planning to
make changes in the plant to fit in with the needs of its 25 or 30 other
plants; that many of its present employees are seasonal ; 7 and that an
election at this time would deprive future permanent employees of the
right to select a bargaining representative of their own choosing.
However, the Employer has not decided what the permanent operation
will consist of and just which group of employees will be needed in
-the permanent operation. The Employer testified at the hearing,
however, that the future job descriptions would not be different from
the existing ones . As the plant is currently in operation and the
present employees are representative of the contemplated working
force, we see no reason for departing from our usual policy of directing
an immediate 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
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
.Relations Board Rules and Regulations, 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 bargain-
ing, by Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL.
9 These seasonal employees are temporary workers hired for the summer season only.
They perform duties similar to the regular employees under the same working conditions.
Under these circumstances these seasonal employees are entitled to vote in the election
hereinafter directed . Matter of Stokely Foods, Inc., 83 N. L. R . B. 795.
8 Matter of Gibbs Corporation , 81 N. L. It. B. 1029 ; Matter of American Enka Corpora-
tion ( Lowland ), 80 N. L . It. B. 298; Matter of Reynolds Spring Company, 78 N. L. R. B.
632; Matter of Western Electric Company , 76 N. L. It. B. 400.