McAllister's Dairy Farms, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1957

118 N.L.R.B. 1117 (N.L.R.B. 1957)

McALLISTER'S DAIRY FARMS, INC. 1117
Secretary and assistant to the general manager: The general man-
ager's secretary, Columbin, and the general manager's assistant, Fer-
rari, perform routine clerical and secretarial services. The Petitioner
contends that they are confidential employees but adduced no evidence
that so indicates. We, therefore, include them in the unit.
The Petitioner also contends that all employees working under
commercial treaty visas should be excluded from the unit and amended
its petition at the hearing to exclude such employees. As it appears
that such visas are renewed when their terms expire and as these
employees will be with the New York City office indefinitely, we find
merit in the Employer's contention that such employees should be
included in the unit. The eligibility of aliens to vote in Board elec-
tions is well established 4 and we include those who are not supervisors.
in the unit.
Upon the basis of the entire record, we find the following unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All office clerical employees at the Employer's offices at 24 State
Street and at pier 84, North River, in New York, New York, including
those working under commercial treaty visas, but excluding profes-
sional employees, guards, and supervisors 8 within the meaning of
the Act.
[Text of Direction of Election omitted from publication.]
'Brown Company, 109 NLRB 173 ; Morris Seidmon, aoldie Seidmon, Harry Henkin and
Leonard Seidmon d/b/a Southwestern Co., 102 NLRB 1492.
BAs found hereinabove, there are : the general manager, assistant general manager,
comptroller, assistant comptroller , marine superintendent , managers of the passenger traffic,
purchasing , passenger reservation , first class, cabin class, tourist class , prepaid , advertising
and public relations , freight, claims, and traffic and operations departments.
McAllister's Dairy Farms, Inc. and Teamsters & Butchers Joint
Organizing Committee, AFL-CIO, Petitioner. Case No. 8-RC-
2769. August 21,1957
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 Henry G. Gieser, 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Bean, and
Jenkins].
118 NLRB No. 149.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds :
1. The Employer owns and operates a chain of 36 retail stores
handling groceries, produce, meat products, and dairy products, of
which 34 are located in Ohio and 2 in Pennsylvania. It also has 36
franchised retail outlets which handle its products, of which 30 are
located in Ohio and 6 in Pennsylvania. In addition, the Employer
operates at Warren, Ohio, a dairy processing plant which processes
and ships milk and dairy products to its retail stores and franchised
outlets, and a meat-processing plant which cuts, freezes, packages, and
prices meat and ships it to its retail and franchised outlets. During
the calendar year its gross sales from its retail and processing opera-
tions totaled approximately $5,200,000, and during the same-period, it
shipped from its processing plants to points directly outside the State
of Ohio, goods and merchandise valued at approximately $50,600, of
which approximately $42,000 represented shipments directly to its 2
Pennsylvania retail grocery stores. The Employer's total purchases
brought directly into the State of Ohio during the same period were
valued at approximately $2,300,000, of which $784,000 represented the
value of supplies and materials purchased for use in its processing op-
erations and the balance represented purchases for its Ohio retail
stores. The Employer contests jurisdiction.
In The T. H. Rogers Lumber Company, 117 NLRB 1732, the Board
announced that it will continue to apply nonretail standards to enter-
prises engaged in both retail and nonretail operations except where
the nonretail aspect of the Employer's operations is clearly de minimis.
As it is clear that the Employer in the instant case is engaged in a
combination enterprise, retail and nonretail in character, we shall apply
in accordance with The T. H. Rogers Lumber decision, the nonretail
standards. Applying those standards, as it appears that the direct
inflow of the Employer's entire enterprise is in excess of $500,000
annually, we find that it will effectuate the policies of the Act to assert
jurisdiction over the Employer in this case.
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 a multiplant unit of production and main-
tenance employees, truckdrivers and helpers at the Employer's meat-
'The Employer contends , in effect, that the petition should be dismissed because it was
filed by a joint bargaining committee rather than by Teamsters Local 377 and Meat
Cutters Local 200, which, although present, did not intervene at the hearing. How-
ever, the record does not support the allegation that, if certified, the Petitioner would
delegate its responsibilities under any certification the Board may issue. The motion
is therefore denied. We further find that the Petitioner is a labor organization within
the meaning of the Act.
MCALLISTER'S DAIRY FARMS, INC. 1119
processing and dairy processing plant at Warren, Ohio. The Em-
ployer contends that three separate units are appropriate, i. e., a unit
of dairy-plant employees, a unit of meat-plant employees, and a unit of
truckdrivers and helpers.
There are 14 employees in the dairy plant who are supervised by a
foreman and assistant foreman who are responsible to the dairy-plant
manager. They are engaged in receiving and processing milk, sugar
and related items, making ice cream and shipping it, and washing
bottles. There are 17 employees in the meat plant who are supervised
by a meat-plant foreman who is responsible to the meat-plant manager.
They process and package meat. There are 12 outside truckdrivers
and helpers engaged in hauling both meat and dairy products who
are supervised by a foreman and the dairy-plant manager. The dairy-
plant and meat-plant managers are directly responsible to the Em-
ployer's president.
The 2 plants are located in separate buildings about 100 feet apart.
The three groups of employees do not interchange. Separate payrolls
are maintained. The Employer maintains an office staff in a separate
building about 300 feet from the dairy and meat plants. The office
staff makes up payrolls for all groups and does the clerical work for
both plants. Employees in all groups punch the same time clock in
the office. Insurance and vacation benefits are uniform. The dairy-
plant and meat-plant employees are hourly paid; the truckdrivers are
on a salary basis. There are, in addition, 2 full-time mechanics and
1 regular part-time mechanic who work in a garage connected with the
dairy plant but having its own entrance. The Petitioner would in-
clude them in the overall unit sought ; the Employer would include
them with the truckdrivers. There is no prior bargaining history.
We recognize that the considerable degree of autonomy in opera-
tions of the two plants lends weight to the Employer's contention that
separate plant units could be appropriate for bargaining purposes.
We find, however, that other overriding considerations exist that favor
the appropriateness of a single overall bargaining unit. The close
proximity of the plants, the similarity of functions, the enjoyment of
uniform fringe benefits, and the fact that these employees are joined
by a community of interests which inheres in their being employed by
the same company, warrant the finding that the single overall bargain-
ing unit, as sought by the Petitioner, is a unit appropriate for collective
bargaining. In the circumstances, as the Petitioner requests a single
unit, and as it has made a sufficient showing of interest in the overall
unit, we find that the multiplant unit is appropriate.' As the truck-
drivers and helpers are normally included in production and main-
tenance units in the absence of a desire by a labor organization to
2 Burrus Mills, Incorporated , 1.16 NLRB 384; Potato Growers Cooperative Company, 115
NLRB 1281.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represent them separately,' we shall include them in the unit found
appropriate. We shall likewise include in the unit the two full-time
mechanics and the regular part-time mechanic.
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act: All production and maintenance employees,
including truckdrivers and helpers, and mechanics, at the Employer's
dairy processing plant and meat-processing plant at Warren, Ohio,
excluding office clerical employees, professional employees, guards,
and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
$ Channel Master Corporation, 114 NLRB 1486; Sunnyland Packing Company, etc., 113
NLRB 162; Thomas Electronics, Inc., 107 NLRB 614.
Pearl Curtains , Inc.' and Olga Melendez, Petitioner .' Case No. 0-
UD-35. August 01,195'
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (e) (1) of the National
Labor Relations Act, a hearing was held before Julian J. Hoffman,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed 2
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.3
2. The labor organization involved claims to represent certain.
employees of the Employer.
3. The contract, as amended, is effective by its terms to July 1, 1958..
The petition for union deauthorization was filed on November 30,,
1 The petition and other formal papers are hereby amended to reflect the Employer's
correct name . In view of a written disclaimer of interest in the petition by Esther-
Martinez , a cosigner of the original petition , we shall amend the petition and other formal'
papers herein by deleting therefrom the name of this individual.
2 The Union objected to the hearing officer ' s acceptance of evidentiary material in the.
form of letters from companies doing business with the Employer as commerce data. We
are satisfied that the bearing officer 's ruling accords with Board policy , and it is accordingly
affirmed. See Pacific Tent & Awning Co ., 97 NLRB 640 ; F. M. Reeves & Sons, Inc., 112'
NLRB 295. The Union also challenged the Petitioner ' s showing of interest. The suf-
ficency of a petitioner ' s showing of interest is an administrative matter not subject to.
litigation, and we are furthermore administratively satisfied that the Petitioner 's showing
of interest is adequate . 0. D. Jennings & Company, 66 NLRB 516.
3 During the past year the Employer furnished services in excess of $100,000 In value to.
firms which annually ship goods valued in excess of $50,000 to points outside the State-
of New York. We therefore find that it will further the purposes and policies of the Act
to assert jurisdiction in the instant case. Pazan Motor Freight, Inc., 116 NLRB 1568-
118 NLRB No. 151.