Foremost Dairies, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1957

118 N.L.R.B. 1424 (N.L.R.B. 1957)

1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
judge the situation by the Employer's past performance,4 rather than
by the Petitioner's promises; and that the last statement was a mere
personal appeal. The Employer takes the position that these state-
ments were permissible under Section 8 (c) of the Act,' and there-
fore did not constitute unlawful interference with the election.
We find it unnecessary to decide whether the first statement of the
Employer was protected. For, even assuming that it was a prediction,
we see no basis for concluding that the second statement was other
than a clear promise of benefit and therefore not privileged. This is
particularly so when the second statement is viewed against the first.
Thus, in marked contrast to the prediction in the first statement as to
the effect upon steady employment of selection of the Petitioner, is the
second statement, made without reservation, that if the employees
reject the Petitioner the Employer "can promise [them] a year round
job with a year round pay envelope." The juxtaposition of these two
thoughts served to emphasize to the employees the substance of the
second statement, namely, that they would benefit by rejecting the
Petitioner. We find that this promise, made to the assembled em-
ployees on the day before the election, interfered with their freedom
of choice.' We shall, therefore, set aside the election and direct a new
election.
[The Board set aside the election held on May 1, 1957.]
[Text of Direction of Second Election omitted from publication.]
4 The Employer asserts in its exceptions that employees failed to receive year-round
paychecks only in 1941 and 19 5 3, when unions called strikes.
6 This section provides as follows :
The expressing of any views , argument , or opinion , . . . shall not constitute
or be evidence of an unfair labor practice under any of the provisions of this Act, if
such expression contains no threat of reprisal or force or promise of benefit.
6 Cf. Maine Fisheries Corporation, 99 NLRB 604.
Foremost Dairies, Inc. and International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America,
Freight Drivers , Warehousemen , Helpers, Bakery Salesmen
and Dairy Employees Local Union No. 390, AFL-CIO, Peti-
tioner. Case No. 12-RC-147. September °0, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Harrison C. Thomp-
son, Jr., hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
118 NLRB No. 191.
FOREMOST DAIRIES, INC. 1425
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 [Members Rodgers, Bean, and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees 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. At the hearing, the Petitioner amended its unit request to seek
all production, inside maintenance, and shipping department em-
ployees at the Employer's Miami milk processing and ice cream plant,
excluding driver-salesmen, truckdrivers, truckdriver helpers, garage-
men, cabinet service employees, fieldmen, office employees, guards, and
supervisors as defined in the Act.' The Employer contends that the
unit sought is inappropriate and that the only appropriate unit in-
cludes all production and maintenance employees at its Miami plant,
three substations, and several allied outside warehouses, including
driver-salesmen, truckdrivers, cabinet repairmen, and garagemen.
The Employer's Miami operations are divided into ice cream produc-
tion, milk processing, sales, delivery, engineering, and warehouse de-
partments. Each department appears to be headed by a separate
supervisor... The delivery department includes the Employer's driver-
salesmen and truckdrivers as well as shipping and receiving em-
ployees, who take the Employer's products as they ' cone off the
packing lines, stack them in refrigerators, and load the Employer's
trucks. The engineering department encompasses all maintenance
functions of the Employer and includes the inside plant maintenance
employees, garage employees, and cabinet repair employees. There
are approximately 300 employees at the Miami plant.
' In its petition , the Petitioner set forth as the appropriate unit all production employees,
driver-salesmen , truckdrivers , and shipping and receiving employees , excluding all main-
tenance employees . The Employer contends that the substantial amendment of the unit
request was caused by the fact that the Petitioner lacked an adequate showing of interest
in the unit set forth in the petition and amended its request to conform to the extent of its
organization . The Employer urges the Board to dismiss the petition for this reason, cit-
ing Sanitary Farms Dairies, Inc., 107 NLRB 955. However , in that case there was a
bargaining history for an overall unit which lapsed. After a hiatus the petitioner entered
into a series of consent-election agreements from which it repeatedly withdrew before
election and in which the petitioner constantly changed its unit position . Under these
circumstances it was clear that the petition was not based on any other consideration but
extent of organization . In the instant case, we note not only the absence of similar
background but also the fact that the appropriateness of the unit set forth in the petition,
excluding maintenance employees, was subject to serious question . ( See Comfort Slipper
Corporation, 111 NLRB 188.)
Accordingly, and in view of our subsequent unit discussion , we reject the Employer's
contention that the basic unit sought herein is grounded on extent of organization and
therefore inappropriate.
450553-58-vol. 118-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer employs approximately 109 driver-salesmen at the
Miami plant who service milk routes, both wholesale and retail, as
well as wholesale ice cream routes . These employees spend approxi-
mately 2 hours a day at the plant helping to load and unload their
trucks and checking their daily sales and receipts. The remainder of
their time is spent away from the plant on their routes. While some
of the shipping and receiving employees substitute for relief drivers
and act as special delivery drivers, it does not appear that any of the
driver-salesmen ever work in any other capacity. Unlike the other
employees at the plant who are hourly paid, the driver- salesmen re-
ceive a weekly guarantee plus commissions. We find under the cir-
cumstances that the interests and working conditions of the driver-
salesmen are sufficiently different from those of the Employer's other
employees that they may be excluded from a unit of the Employer's
production and maintenance employees?
Apart from the driver-salesmen, the Employer also employs truck-
drivers and helpers in the delivery department who drive over-the-
road transport trucks and make full-load deliveries of the Employer's
products. Although the record contains little description of their
'duties, it does not appear that they have any function other than
driving and they work under the same supervision as the other de-
livery department employees. Accordingly, as no other labor organi-
zation seeks to represent them separately, we find that the truckdrivers
and helpers should be included in the same unit with the Employer's
production and maintenance employees.'
The garage mechanics work at the Miami plant and devote their
time principally to the maintenance and service of the Employer's
trucks. The cabinet repair employees maintain and repair compres-
sors at the Employer's plant as well as refrigeration equipment located
at customers' stores and owned by the Employer and customers.
About 25 percent of their time is spent at the Employer's plant.
Both of these groups of employees are in the same department and
under the same ultimate supervision as the Employer's other main-
tenance employees. We find no adequate reason in the record for
excluding these employees from a unit of the other production and
maintenance employees and therefore will include them .4
Apart from the employees at the Miami plant, the Employer also
employs 28 employees at 3 substations and 7 to 8 employees It several
other warehouse locations who it contends should be included in the
unit. The substations, located at Fort Lauderdale , Riviera Beach,
and Key West, are approximately 28, 66, and 160 miles from Miami
2 Parrot Packing Company, 112 NLRB 1432; Wells Dairies Cooperative, 107 NLRB
1445.
Parrot Packing Company, supra ; Drexel Furniture Company, 116 NLRB 1434. Cf.
Thomas Electronics , Inc., 107 NLRB 614; Holsum Bakers, Inc„ 102 NLRB 1495.
+ Parrot Packing Company, supra; Jackson Jitney Jungle Stores, Inc., 115 NLRB 374.
FOREMOST DAIRIES, INC. 1427
respectively. The substations have no production facilities, but serve
as depots for the Employer's products from which driver-salesmen
covering the territories in the vicinity of the substations obtain the
Employer's products. Most of the employees at the substations are
driver-salesmen. There are also 2 loading employees and a garage
mechanic at Fort Lauderdale, 2 loading employees at Riviera Beach,
and 1 at Key West. Although the record indicates that there is inter-
change of driver-salesmen and trucks between Fort Lauderdale and
Miami, it is silent as to such interchange between Miami and Riviera
Beach or Key West and as to interchange of loading employees be-
tween any of the substations and the main plant. All the products
handled at the substations come from the main plant, and all records
are kept and all management functions are carried on at the Miami
plant. However, each of the substations has a separate immediate.
supervisor. The record indicates that substation employees may be
hired by the substation supervisors with the approval of the Miami
plant, or directly by the Miami plant.
While it would thus appear that a unit including the substation
employees might be appropriate, the facts in the record do not compel
a finding that such a unit is alone appropriate, but support a finding
that a unit of Miami plant employees, excluding the substation em-
ployees, is also appropriate. Accordingly, as there is no history of
bargaining for any of the Employer's employees, as no union seeks
to combine the Miami and substation employees in a single unit, as the
geographical separation of the operations is substantial, as there is
no evidence of interchange or transfer among the classifications in the
unit between the main plant and the substations, and as there is local
supervision of substation employees, we will exclude the substation
employees from the unit.'
The Employer's warehouse facilities, which are for the storage of
dry materials used by the Employer in processing and distributing
its products, are located at Fort Lauderdale, Riviera Beach, and Key
West, as well as at several locations in Miami. Of the warehouses in
Miami, only that at the main plant and one located at Second Avenue
have employees assigned to them. As the employees at the Second
Avenue warehouse are located close to the main plant, appear to have
contact with other main plant employees, and have similar interests
and working conditions, we will include them in the unit. However,
as there is no more evidence in the record to compel the inclusion in
the unit of the warehouse employees at Fort Lauderdale, Riviera
Beach, and Key West than there appears with respect to the sub-
station employees at those locations, we will similarly exclude them
from the unit.
5 Harvey Lumber & Supply Co.. 118 NLRB 737.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remains for consideration the supervisory status of working
foremen whom the Employer would include in the unit and the Peti-
tioner would exclude. Within the engineering department and under
the supervision of its superintendent, there are the garage foreman,
the cabinet repair foreman, and the plant engineering foreman. There
is also 1 working foreman in the milk processing department and 1 in
the ice cream production department. Each works about 90 percent
of his time. They have no authority to hire or discharge employees,
and their recommendations as to hire and discharge are subject to
independent investigation.6 Accordingly, as the record does not indi-
cate that they have any other supervisory authority, we find that they
are not supervisors and include them in the unit.
We find that the following employees of the Employer at its plant
and Second Avenue warehouse in Miami, Florida, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act:7
All production, maintenance, shipping and receiving and ware-
house employees, including truckdrivers, truckdriver helpers, garage
employees, cabinet repair employees, and working foremen, but ex-
cluding driver-salesmen, sales department employees, office clerical
employees, restaurant employees, guards, and supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
9 Although the Employer 's manager testified that the working foreman could fire em-
ployees in an "emergency ," he explained this testimony to mean that the working fore-
man could send employees to the department head who would then determine whether
or not the employees were to continue on the job.
7 The unit found appropriate is larger than that sought by the Petitioner , and neither
the exact size of the unit nor the exact interest of the Petitioner in the unit is clear from
the record before us. Accordingly, we instruct the Regional Director not to proceed with
the election herein directed until he shall have first determined that the Petitioner has
made an adequate showing of interest among the employees in the appropriate unit, who
are eligible to vote in the election. See The Great Atlantic & Pacific Tea Company, 99
NLRB 1500.
In the event the Petitioner does not wish to participate in an election in such a unit,
we shall permit it to withdraw its petition upon notice to the Regional Director within
5 days from the date of issuance of this Direction , and shall thereupon vacate the Direc-
tion of Election.
The Barr Rubber Products Company and United Rubber, Cork,
Linoleum & Plastic Workers of America, AFL-CIO, Petitioner.
Case No. 8-RC-2911. September 20,1957
DECISION AND DIRECTION
On March 26, 1957, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the Eighth
118 NLRB No. 192.