Oscar Ewing, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1945

64 N.L.R.B. 310 (N.L.R.B. 1945)

In the Matter of OSCAR EwINC , Irrc. ,and MILK, ICE CREAM DRIVERS &
DAIRY EMPLOYEES OF THE INTERNATIONAL BROTHERHOOD' OF TEAM-
STERS, CLIAUFFEURS , WARETIOUSEMEN, AND, HELPERS OF AMERICA,
A. F. L., LOCAL # 783
Case No. 9-R-1708.Decided, October 18,1945
Woodward, Dawson, Hobson and Fulton, by Mr. ThonIa.s S. Daw-
son, of Louisville, Ky., for the Company.,
Messrs. James M. Jackson and James P. Hopewell and Mrs. Frances ,
Kaufman, of Louisville, Ky., for the Union.
Mr. Herbert C. Kane, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEME NT Or THE, CASE
Upon a petition duly filed by Milk, Ice Cream Drivers & Dairy EnT-
ployees of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, A. F. L., Local #783, herein
called- the Union, alleging that a question affecting commerce had,
arisen concerning the representation of employees of Oscar Ewiizg,
Inc., Louisville, Kentucky, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon due
notice before Louis S. Penfield, Trial Examiner., The hearing was
held at Louisville, Kentucky, on February 28, 1945. On September 6,
1945, pursuant to an order of the Board, a further hearing upon due
notice, was held at Louisville, Kentucky, before James A. Shaw, Trial
Examiner. The Company and the Union appeared and participated
in both hearings. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The Trial Examiner's rulings made at
the hearings are free from prejudicial error and are hereby affirmed.
All parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
G4 N L R B., No. 56.
,310
OSCAR EWING, INC.
FINDINGS OF FACT
1. TI IE BUSINESS OF THE COMPANY
311
Oscar Ewing, Inc., a Kentucky corporation with its principal place
of business in Louisville, Kentucky, is engaged in the processing and
distributing at wholesale and retail of milk, cream, eggs, and related -
dairy products., During the period between December 1944 and June
1945, the Company purchased raw materials valued at $392,224, of
which approximately 24 percent came from outside the Common-
wealth of Kentucky. During the same period, the Company's sales,
consisting chiefly of milk, buttermilk, powdered milk, ice cream mix,
ice cream, sour cream, cottage cheese, and butter exceeded $600,000, in
value. Of these products, about T percent in value was either shipped
directly to points outside the Commonwealth or was trans-shipped by
its customers within the Commonwealth to other States. ' During the
period between February and July 1945, the Company sold over
$30,000 worth of butter, or 5 percent of the Company's total sales dur-
ing such period to agents of the War Food Administration located in
the Commonwealth of Kentucky. '
' We find, contrary to the contention of the Company; that it is en-
gaged in commerce within the meaning of the National Labor Rela-
tions Act.
II. TILE ORGANIZATION INVOLVED
Milk, Ice Cream Drivers & Dairy Employees of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers,
of America, A. F.,L., Local #783, affiliated with the American Fed-
eration of Labor, is a labor organization admitting to membership
employees of the Company.
IIl. TIIE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of some of its employees until
the Union has been certified by the Board in an appropriate unit.
A statement of a Board agent, introduced into-evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.'
We find that a,gdestion affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and section 2 (6) and (7) of the Act.
1 The Field Examiner reported that , the Union submitted 38 application cards , that there
were approximately 74 employees in the appropriate unit , and that 15 of , the cards were
dated in July 1944 and 23 in January 1945
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
We find, in substantial accordance with the stipulation of the parties,
that all production employees and truck drivers of the Company at
its Louisville, Kentucky, plant, including route foremen 2 and delivery
salesmen, but excluding the field man,3 the purchasing agent,' the
night contact clerk, executives, office and clerical employees, superin-
tendents, and all other supervisory employees 5 with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining' within the
meaning of Section 9 (b) of the Act.
V. TIIE DETERMINATION OF REPRESENTATIVES
The parties agreed that all regular part-time employees be allowed
to participate in the election and that all temporary or seasonal em-
ployees be declared ineligible to vote. Since the agreement embodies
the Board's usual practice in such cases, we shall honor it.
We shall direct that the question concerning representation which
has arisen be resolved by'an election by secret ballot ,among the em-
ployees in the appropriate unit who were employed during the pay-,
roll period immediately preceding the date of the Direction of Election
herein, subject to the, limitations and additions set forth in the Direc-
tion. •
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Re-
lations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Oscar Ewing, Inc.,
Louisville, Kentucky, an election by secret ballot shall be conducted
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 Ninth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Sections
10 and 11, of said Rules and Regulations, and our determinations in
Section V, above, among the, employees in the unit found appropriate
' The parties agree that the route foremen are in reality relief drivers who possess no
supervisory authority. Accordingly, we shall include them
8 Gary Bottom.
' Ira Gilbert Potts.
5 Including Fred Tabor in the Ungraded Department.
OSCAR INC. _ 313,
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during the 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 per-
son 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 Milk, Ice Cream Drivers & Dairy, Em-
ployees of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, A. F. L., Local #783, for
the purposes of collective bargaining.