River Falls Cooperative Creamery

National Labor Relations Board - Board Decisions

Mar 22, 1950

88 N.L.R.B. 1366 (N.L.R.B. 1950)

In the Matter of RIVER FALLS COOPERATIVE CREAMERY, EMPLOYER and
WILLIAM M. BAIRD, ET AL., PETITIONER and GENERAL DRIVERS AND
HELPERS UNION, LOCAL No. 662, AFL, PETITIONER
Cases Nos . 18 RD-,35 and 18-RC-547.-Decided March " 2,1950
DECISION
AND
DIRECTION OF ELECTION
Upon separate petitions duly filed, a consolidated hearing was held
before Erwin A. Peterson, hearing officer of the National Labor Rela-
tions Board. 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
these cases to a three-member panel [Chairman Herzog and Members
Houston and Styles].
Upon the entire record in these consolidated cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner in Case No. 18-RD-35, an employee of the Em-
ployer and hereinafter referred to as the decertification Petitioner,
asserts that General Drivers and Helpers Union, Local No. 662, AFL,
hereinafter referred to as the Union, the certified representative of the
Employer's employees, is no longer their representative, as defined in
Section 9 (a) of the Act.
The Union, the Petitioner in Case No. 18-RC-547, is a labor organi-
zation claiming to represent certain employees 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 parties agree that production and maintenance employees
at the Employer's River Falls, Wisconsin, plant,' including tank
3 The Employer also owns a plant at Roberts , Wisconsin, not now in operation. The
parties agree that any unit of employees found by the Board to be appropriate should be
restricted to employees at the River Falls plant , there being no prospect for operation of
the Roberts plant in the near future.
88 NLRB No. 233.
1366
RIVER FALLS COOPERATIVE CREAMERY 1.367
truck haulers, but excluding office and clerical employees, field men,
guards, the relief fireman, and supervisors, may constitute an appro=
priate bargaining unit. The Employer and the decertification Peti-
tioner would include farm truck haulers in this unit. The Union
would exclude them.
At its River Falls, Wisconsin, plant, the Employer is engaged in
processing dairy products. It employs 13 regular farm truck drivers
and 1 relief hauler who are engaged in transporting milk in Employer-
owned trucks from various farms to the Employer's plant. The farm
truck haulers have irregular working hours. Ordinarily, they leave
the plant about 7 a. m. and work from 5 to 7 hours per day, depending
on the time required to cover a. particular route. They work 7 days
per week and are off 2 days per month. Their compensation is com-
puted solely on the basis of 71/2 cents per 100 pounds of milk hauled.
While not required to do so, farm. truck haulers are encouraged by the
Employer to solicit new accounts. They receive no bonus or com-
mission for securing a new customer, the sole benefit thereof being
increased earnings through the hauling of additional milk. No pro-
vision is made for extra compensation in the event their workweek
exceeds 40 hours. These employees receive no vacation. They are
paid an amount approximating their average daily compensation for
the 2 days per month when they are off work. The Employer with-
holds social security and withholding taxes from their earnings, and
pays unemployment taxes on their accounts.
The other employees of the Employer receive paid vacations on the
basis of 1 week after 1 year of employment, and 2 weeks after 3 years.
With the exception of two tank truck drivers, they receive a regular
hourly wage rate. The tank truck drivers are paid on .a mileage basis
but, like the plant employees, they receive compensation at the rate
of time and one-half for a workweek in excess of 40 hours.
The farm truck haulers perform some work in the plant. At the
present time, however, the combined work in the plant of the entire
13 farm truck haulers averages only about one-half day per week.
When they work in the plant, farm truck haulers receive the rate of
pay established for the particular job, including overtime benefits.
Two of the farm truck haulers were formerly employed in the plant,
and 1 plant employee formerly operated a farm truck.
On November 29, 1948, following a consent election, the Regional
Director certified the Union as exclusive bargaining representative of
production and maintenance employees at the Employer's River Falls
plant, including, inter alia, farm truck haulers.2 On April 16, 1949,
2 In an earlier proceeding, in August 1948, the Union won an election conducted by the
Wisconsin Employment Relations Board among these employees, excluding , however, farm
truck haulers. No contract was negotiated for employees in this unit.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer and the Union entered into an agreement covering em-
ployees in the certified unit. This agreement expired in October 1949,
and no new agreement has since been negotiated.
The Union urges that it does not , and did not , desire to represent
the Employer 's farm truck haulers, although it consented to their in-
clusion in the consent election agreement and in the contract based
upon its certification by the Regional Director. It further urges that
it represents production and maintenance employees in a number of
establishments similar to that of the Employer's River Falls plant,
and that farm truck haulers are not included in its contract covering
such production and maintenance employees . We do not consider
that these factors urged by the Union are controlling under the cir-
cumstances of this case . The Employer 's farm truck haulers are part
of the agreed unit and included in the contract negotiated between
the Union and the Employer for all employees covered by the Regional
Director's certification, and there is no question but that the Union is
their statutory representative of record. We shall, therefore, include
farm truck haulers in the production and maintenance unit found
appropriate in these consolidated proceedings.
. We find that the following employees at the Employer's River Falls,
Wisconsin, plant, constitute a unit appropriate for purposes of pol-
lective bargaining : All production and maintenance employees, in-
cluding tank truck haulers and farm truck haulers, but excluding office
and clerical employees, field men, guards , the relief firemen , and all
supervisors as defined in the Act.
5. When occasion demands, the Employer operates a so-called can-
ning line for the production of canned powdered milk. During the
war years and until 1948, the canning line operated on an approxi-
mately full-time basis . Since that time, however , the demand for
canned milk has declined. During the first 7 months of 1949, the
canning line was in operation about 50 percent of the time , and, during
the last 5 months, in operation only 14 days . The Employer estimates
that, during the year 1950, the canning line will not be operated in
excess of 30 days. The Employer maintains a seniority list for the
canning line employees and employs approximately 15 when the line
is in operation . There is very little turn -over among these employees.
When the canning line is in operation , the Employer employs 4 addi-
tional laboratory employees for the extra work. Although these em-
ployees perform types of work similar to those of employees in the
appropriate bargaining unit, work for them at the present time is
highly uncertain and there is no indication that employment foi them
will be regular at any time within the near future . Accordingly, we
RIVER FALLS COOPERATIVE CREAMERY 1369
find that canning line employees are ineligible to participate in the
election directed below.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later
than 30 days from the date of this Direction., under the direction
and supervision of the Regional Director for the Region in which
this case was heard, and subject to Sections 203.61 and 203.62 of Na-
tional Labor Relations Board Rules and Regulations, among the em-
ployees in the unit found appropriate in paragraph numbered 4,
above, who were employed during the payroll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said payroll period because they were ill
or on vacation or temporarily laid off, 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, and also exclud-
ing employees on strike who are not entitled to reinstatement, to de-
termine whether or not they desire to be represented, for purposes
of collective bargaining, by General Drivers aiid Helpers Union, Local
No. 662, AFL.