Model Dairy

National Labor Relations Board - Board Decisions

Feb 12, 1947

72 N.L.R.B. 544 (N.L.R.B. 1947)

In the Matter of R. W. KIRCHNER, D/B/A MODEL DAIRY, EMPLOYER and
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICUL-
TURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), PETITIONER
Case No. 8-R-2315.Decided February 12, 1947
Bowman, Hanna c6 Middleton, by Mr. Martin Hanna, of Bowling
Green, Ohio, for the Employer.
Mr. Walter Madraykowsici, of Toledo, Ohio, for the Petitioner.
Mr. Leonard J. Mandl, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Bowling
Green, Ohio, on November 1, 1946, before Thomas E. Shroyer, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
R. W. Kirchner, doing business as Model Dairy, is engaged at
Bowling Green, Ohio, in the business of buying milk from farmers
in the surrounding communities within the State of Ohio, and of sell-
ing the milk either in its raw or processed state or as converted at
the plant into milk products such as cottage cheese, butter, and milk
powder. During 1945, the Employer's sales amounted to more than
$900,000, of which approximately 50 percent of the butter sales and 75
percent of the milk and other milk products sales were made to the
U. S. Government. These sales were made pursuant to a Government
set-aside order requiring milk producers to sell a designated portion
of their products to the Government. This order was terminated on
August 1, 1916. During the first 6 months of 1946, the Employer's
sales amounted to more than $400,000, of which about $63,000 repre-
sented shipments to points outside the State. About 10 percent of this
72 N. L. R. B, No. 103.
544
MODEL DAIRY 545
latter sum represented Government set-aside sales. At the time of
the hearing there was a shortage of milk in many large cities through-
out the United States, as a result of which the Employer sold a large
portion of the milk to a broker who, it appears, sold this milk to cus-
tomers outside the State of Ohio. This milk was cooled at the Em-
ployer's plant and then pumped into tank cars for shipment. There is
testimony that, absent the shortage, this milk would have been con-
verted into butter, and that 85 to 90 percent of the Employer's total
sales of milk and milk products would have been made to customers
within the State, while the balance would apparently have been made
to brokers within the State and the products would have been trans-
shipped by them to other States.
The Employer contends that, even if it were engaged in interstate
operations at the time of the hearing, such operations were merely of
a temporary or transitory nature. We are of the opinion that, during
all of 1945 and the portion of 1946 up to and including the time of the
hearing, the Employer was engaged in commerce within the meaning
of the Act and that the mere contingency that its operations may
change at some future date is not sufficient reason to divest the Board
of jurisdiction at this time.
We find, therefore, that the Employer is engaged in commerce within
the meaning of the National Labor Relations Act.'
H. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations , claiming to represent employees of the
Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning the
representation of employees of the Employer, within the meaning of
Section 9 ( c) and Section 2 (6) and ( 7) of the Act.
IV. THE APPROPRIATE UNIT
Petitioner seeks a unit of all employees of the Employer , including
the maintenance engineer and the tester , but excluding the engineer-
fireman, office employees , and supervisory personnel. The Employer
agrees generally as to the appropriateness of the requested unit; it
would , however, exclude the maintenance engineer and the tester.
'Matter of Oscar Ewing, Inc., 64 N. L R B 310.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The maintenance engineer: No reason was given by the Employer
for desiring his exclusion. It is, however, apparent that he is a main-
tenance employee, and as such, his interests are closely related to
those of other employees in the unit. We shall, therefore, include him
in the appropriate unit.'
The tester: This individual conducts tests at various plants in the
area, including that of the Employer. He operates his own laboratory.
At the Employer's' plant he uses the Employer's equipment, but at
smaller operations he uses his own equipment. He is paid on a monthly
basis and the amount of time lie spends at the Employer's plant does
not control his compensation. The number of days spent by him
each month at the Employer's operations depends upon the amount of
products on hand to be tested. It is evident from the foregoing that
the tester has no community of interest with the other employees in
the unit, and that his status is akin to that of an independent con-
tractor. We shall, therefore, exclude him from the appropriate unit.a
We find that all employees of the Employer, including the main-
tenance engineer, but excluding the engineer-fireman, tester, office
employees, and all or any other supervisory employees i with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with R. W. Kirchner, d/b/a Model
Dairy, Bowling Green, Ohio, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Eighth Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Sactions 203.55
and 203.56, of National Labor Relations Board Rules and Regula-
tions-Series 4, among the employees in the unit found appropriate in
Section IV, above, who were emplcyed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, and including employees in the
armed forces of the United States who present themselves in person
2 Matter of Armour & Company, 65 N L R B 353
Matter of Zones Freight Agency, 65 N L It B 799
The parties agree, and we find, that the field nian is a supervisory employee within our
customary definition
MODEL DAIRY 547
at the polls, but excluding those employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior to
the date of the election, to determine whether or not they desire to be
represented by International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America (UAW-CIO), for the
purposes of collective bargaining.