Foremost Dairies, Inc.,

National Labor Relations Board - Board Decisions

Jul 31, 1959

124 N.L.R.B. 293 (N.L.R.B. 1959)

FOREMOST DAIRIES , INC . 293
Having found that the Respondent formed , dominated , and contributed support
to, the Advisory Council , I shall recommend that it completely disestablish the
Advisory Council as the representative of any of its employees for the purpose of
dealing with their employer concerning grievances , labor disputes , wages, rates of
pay, hours of employment , or conditions of employment ; and that the Respondent
refrain from recognizing the said Advisory Council , or any successor thereto, for
any of the purposes defined in Section 2(5) of the Act .5
Upon the basis of the above findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. International Association of Machinists , District Lodge No. 93, AFL-CIO, and
the Advisory Council are, respectively , labor organizations within the meaning of
Section 2(5) of the Act.
2. By forming , dominating , and contributing support to, the Advisory Council,
the Respondent has engaged in and is engaging in unfair labor practices in violation
of Section 8(a)(2) of the Act.
3. By the aforesaid action , and by interrogating its employees concerning their
union activities and threatening and warning them of the consequences of organiza-
tion ; and by interrogating , intimidating , and harassing its employee , Sferrazzo, with
respect to the Board affidavit , the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act,
thereby violating Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices by its discharge of
its employee , Wolfe, or by the granting of wage increases.
[Recommendations omitted from publication.]
51 have found that following the filing of a charge alleging the Advisory Council
to be a company -dominated labor organization , and on Instructions from the east coast
office, the Respondent publicly announced to its employees that the said Advisory Council
was disbanded , and that there is no evidence that it has survived this voluntary dis-
establishment . Nevertheless I am recommending the customary disestablishmeat order.
Such an order is necessary to insure against a reestablishment of the Council or the
formation and recognition of a successor thereto.
Foremost Dairies, Inc. and Truck Drivers, Warehousemen &
Helpers Local Union No. 512, Jacksonville , Florida, affiliated
with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , Petitioner. Case No.
12-RC-585. July 31, 1959
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 Norman A. Cole, hearing
officer. 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 Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
124 NLRB No. 38.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. The Petitioner seeks to represent a unit of wholesale and retail
milk and ice cream driver-route salesmen, production employees,
transport drivers, inside plant engineers, garage employees (except
mechanics), cabinet servicemen, and janitors employed at the Em-
ployer's Jacksonville, Florida, plant, excluding all other employees.
The Employer, contending that the unit sought is inappropriate, as-
serts that the appropriate unit consists of all its employees at the
Jacksonville plant with the usual office clerical and statutory exclu-
sions. There is no history of collective bargaining at this plant.
The petitioner would exclude, and the Employer would include, the
following job classifications :
Route solicitor: This classification was included in the plantwide
unit found appropriate by the Board in Foremost Dairies, Inc, 10-
RC-2843, decided on October 12, 1954.1 The route solicitor assists the
retail driver-route salesmen in obtaining new customers. The route
solicitor and the retail driver-route salesmen are under the same direct
supervision. The interests and working conditions of the route so-
licitors are closely aligned with those of the retail driver-route sales-
men whose inclusion in the unit is not disputed. Accordingly, we shall
include the route solicitors.2
Relief retail route driver-delivery salesman: The two employees
in this classification substitute for retail driver-route salesmen and
also act as retail route solicitors. Both these classifications are in-
cluded in the unit. We shall include the relief retail route driver-
delivery salesman.
Territory representative and salesman: Both classifications are used
to describe employees in the wholesale portion of the sales department
who assist the wholesale driver-route salesmen included in the unit in
developing new business. They have the same relation to wholesale
drivers as route solicitors have to retail drivers. We shall include the
territory representatives and salesmen in the unit as we have the route
solicitors.
Demonstrator and merchandiser: Both of these classifications are
engaged in the promotion of the Employer's products. The mer-
chandiser erects signs and displays in stores and works with the whole-
sale driver.-route salesmen in building up sales volume. The demon-
strator takes samples of the Employer's products into stores for
distribution to retail customers. His purpose is to introduce the Em-
1 Unpublished.
2 See The H. E. Koontz Creamery, Inc., 102 NLRB 1619, 1625.
FOREMOST DAIRIES, INC. 295,
ployer's products to potential retail customers. In the course of* their
work, they assist the driver-route salesmen by checking and refilling-
merchandise cabinets and advising them when additional deliveries
are necessary. Together with the territory representatives, salesmen,.
and wholesale driver-route salesmen, the merchandisers and the dem-
onstrators are supervised by the wholesale sales manager. As the dem-
onstrators and the merchandisers work in close association with the,
wholesale driver-route salesmen in promoting the sale of the Em-
ployer's products, we shall include them in the unit.'
Sales clericals : These employees accept telephone orders and gather.
information for the driver-route salesmen. Such information includes-.
the names and addresses of potential customers. In addition, they
assist the sales manager. The sales clerks are employed in the sales
department's so-called check-in room. This room also serves as the
headquarters of the driver-route salesmen. It appears that the sales-
clerks and the driver-route salesmen are in frequent daily contact in
connection with the relaying of orders, messages, and information..
The sales clerks are in essence plant clericals who work closely with,
the driver-route salesmen. We shall include them.
Plant clericals : The two plant clericals assist, and are supervised-
by, the production superintendent. One of the clericals, Dwight
Marlin , maintains records of ice cream production, requisitions in-
gredients for daily ice cream production, and makes up the ice cream.
mix formulas . The second clerical, Mitchell Green, maintains records
of milk production, consolidates the daily ice cream production reports
into monthly reports, and makes up monthly butterfat reports. In
addition, Mr. Green maintains inventory records of ice cream and.
milk production. The duties of these two employees correspond to
those of the production clerk and the inventory clerk classifications.
included in the unit found appropriate in the 1954 Foremost case..
Accordingly, we shall include the plant clericals.
Sign painter: This classification was included in the unit found.
appropriate by the Board in 1954. There has been no change in the
job since that unit determination. The sign painter primarily paints,,
signs for the plant and advertising signs for dealers. He also paints
the Employer's trucks. We shall include him in the unit.
Laboratory assistants: The Petitioner seeks to exclude these em-
ployees as technical employees. The Employer contends that they are,
nontechnical employees and would include them. The laboratory
department consists of three or four laboratory assistants who test the
Employer's dairy products for fat content and consistency. No college
or other formal training is required for the job. A person of average
intelligence can master its techniques after 1 to 2 months of on-the-job
training. This classification was included in the 1954 Foremost unit-
8 Anheuser-Busch, Inc., 110 NLRB 194, at p. 196.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the laboratory assistants are not technical employees and
include them in the unit.4
Mechanics : The three auto mechanics, together with two body and
paint men, one gas pump man, one lubrication man, one tire man, and
one washman, whom the parties have agreed to include, service and
maintain the Employer's vehicles. They are supervised directly by
the garage foreman. All six classifications were included in the former
unit. The mechanics perform minor repair work on the Employer's
vehicles. Serious repairs are contracted out. All garage employees,
including the mechanics, work in the same area. We shall include
them.
Night watchman: The Petitioner would exclude the night watch-
man upon the ground that he is a guard within the meaning of the Act.
Although he spends the greater portion of his working time checking
the operation of the Employer's refrigerator trucks, and turning lights
on and off, he also checks the security of the plant, locks and unlocks
gates and doors as circumstances require, and has been instructed to
call the police in the event he sees prowlers. We find that the night
watchman is a guard.' We shall exclude him from the unit.
Seasonal employees: During the months from May or April until
about October, the Employer employs from 6 to 16 additional em-
ployees, principally in its ice cream department. Some of these
employees are hired from year to year. They are hired with the
understanding that employment is temporary unless a job opens up
in the regular work force. After 90 days of employment they receive
all the supplemental benefits accorded by the Employer to regular
employees. It appears that the Employer draws its seasonal em-
ployees from the some labor market area from season to season. We
find that all seasonal employees have sufficient interest in employment
conditions to justify their inclusion in the unit and their participa-
tion in the election directed herein.6
Shipping clerk: The Petitioner would exclude the shipping clerk
as a supervisor. The Employer contends that he is not a supervisor.
The shipping clerk, Ben Bryant, is in charge of the 20 to 25 em-
ployees in the shipping department. He responsibly directs the
shipping and storage of milk and makes work assignments. His
recommendations as to personnel changes are generally effective.
Requests for time off are directed to Bryant, who has authority to
grant them. He is authorized to discharge employees for pilferage.
We find that the shipping clerk is a supervisor and exclude him from
the unit.
d Wells Dairies Cooperative, 107 NLRB 1445, at p. 1448.
Tennessee Knitting Mills, Inc., 109 NLRB 628.
Imperial Rice Mills, Inc., 110 NLRB 612, at p. 613.
FOREMOST DAIRIES, INC. 297
Assistant shipping clerks: The Petitioner contends that the Em-
ployer's assistant shipping clerks, Herman M. Pickett and Herbert
Land, are also supervisors and thus are to be excluded from the unit.
The Employer would include them as nonsupervisory employees.
Pickett and Land assist Bryant, the shipping clerk. Neither Pickett
nor Land has the authority effectively to recommend personnel
changes. Pickett works on the morning shift; Land works on the
afternoon shift. Neither Pickett nor Land has authority to grant
time off. They do not exercise responsible direction either when
Bryant is present or in his absence. We find that they are not super-
visors and include them in the unit.
Warehouseman: The Petitioner would exclude the warehouseman,
Robert Ennis, as a supervisor. The Employer would include him.
The warehouse department consists of four men including Ennis.
Ennis does not have authority to make effective recommendations in
connection with the hiring or discharge of employees. He cannot
grant time off without the permission of his immediate supervisor.
Such direction as he exercises is limited to routine task assignments
within the warehouse. We find that the warehouseman, Ennis, is not
a supervisor. We shall include him in the unit.
Milk department foreman: The Employer disputes the Petitioner's
contention that M. A. Whitley, the milk department foreman, is a
supervisor. Whitley operates the pasteurizer and watches the flow of
milk through the prebottling process. There are about 23 employees
in the milk processing department. However, Whitley does not have
authority to responsibly direct the work of any of them. He does not
have authority to grant time off or to make effective personnel action
recommendations. We find that the milk department foreman is not
a supervisor and include him in the unit.
Ice cream department cleanup foreman: The Petitioner would ex-
clude the ice cream department cleanup foreman, B. S. Barr, as a
supervisor. The Employer contends that Barr is a nonsupervisory
employee and would include him in the unit. Barr engages in clean-
up operations with four cleanup men. He does not have authority
effectively to recommend hire or discharge, grant time off, or respon-
sibly direct the work of the four cleanup men. We find that B. S.
Barr is not a supervisor and shall include him in the unit.
Storage man: The Employer and the Petitioner disagree as to the
supervisory status of David Younger, the storage man. This classi-
fication, formerly known as storage foreman, was litigated in the 1954
proceeding and included in the unit. Although the nomenclature has
been changed, the job content has remained as it was in 1954.
Younger maintains the inventory of ice cream in the hardening room.
He gives routine instructions to the nine stackers who work in the
hardening room. However, he does not exercise responsible direction
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over these employees. Younger does not have the authority effec-
tively to recommend the hire or discharge of employees. We find that
the storage man, Younger, does not have supervisory status. We
shall include him in the unit.
Refrigeration service manager: The Petitioner would exclude
Willard Stubbs, the refrigeration service manager, as a supervisor.
The Employer contends that he is not a supervisor and would include
him in the unit. Stubbs performs the same duties as do the six other
men in the refrigeration service department. He does not have au-
thority effectively to recommend changes in personnel status. Stubbs
is not responsible for the work of the department. His title manifests
recognition of his long experience and superior skill. This classifica-
tion was included in the 1954 Foremost unit. We include him in this
unit.
We find that the following employees at the Employer's Jackson-
ville, Florida, plant constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of the Act:
All wholesale and retail milk and ice cream driver-route salesmen,
transport drivers, inside plant engineers, cabinet servicemen, garage
employees, janitors, and production employees at the Employer's
Jacksonville, Florida, plant, including,' route solicitor, relief retail
route driver-delivery salesmen, territory representatives, salesmen,
demonstrator, merchandisers, sales clerical employees, plant clerical
employees, sign painter, laboratory assistants, garage mechanics, as-
sistant shipping clerks, warehousemen, milk department foreman, ice
cream department cleanup foreman, storage man, refrigeration
service manager, and seasonal employees, but excluding office clerical
employees, professional employees, night watchman, shipping clerk,
chief engineer, route supervisors, retail sales manager, delivery super-
intendents, garage foreman, and all other guards and supervisors as
,defined in the Act.
[Text of Direction of Election omitted from publication.]
Amalgamated Lithographers of America , Local No. 2 and Buffalo
'Employers ' Group. Case No. 3-CB-370. August 3, 1959
DECISION AND ORDER
On April 23, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent, the
124 NLRB No. 36.