Sanitary Farms Dairies, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1954

107 N.L.R.B. 955 (N.L.R.B. 1954)

SANITARY FARMS DAIRIES, INC. 955
They perform this operation on a flat truck which is driven
along each row of lettuce on the Employers' farms. One and
occasionally two stitchers are employed on each of the Em-
ployers' farms. After the box is stitched, it is thrown from the
truck adjacent to the various rows of lettuce. (The truck pro-
ceeds at the rate of about one-half mile an hour and thus
keeps up with the cutters and packers, who cut and pack the
lettuce for shipment.) When the lettuce is packed, it is taken
directly to the cooling plant from where it is shipped.
Although the stitchers are not usually interchanged with the
other field employees, they are under the same supervision
and are hired by the field superintendent. They work with,
and are on the same payroll as, field employees, but receive
a substantially higher wage scale.
In these circumstances, particularly the fact that their
duties are performed on the Employers ' farms, not in con-
junction with any other commercial enterprise, we believe that
their duties are incidental to the Employers,' farming opera-
tions. Accordingly, we find that their duties fall within the
definition of "agriculture" contained in Section 3 (f) of the Fair
Labor Standards Act, and hence that they are agricultural
laborers excluded from coverage by Section 2 (3) of the National
Labor Relations Act. 3 We shall therefore dismiss the petition.4
he Board dismissed the petition.]
3Luce P, Company, et al., 98 NLRB 1103; N. L. R. B. v. Dofflemeyer Bros., 206 F. 2d 813
(C. A. 9); Bianchi , Son, 107 NLRB 864.
4In view of our findings above, we find it unnecessary to determine whether the unit sought
is appropriate.
SANITARY FARMS DAIRIES , INC. and SALES DRIVERS LOCAL
UNION NO. 949, Petitioner . Case No. 39 -RC-662. January
27, 1954
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 Clifford W.
Potter, hearing officer. The hearing officer' s rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.'
,The Employer moved to dismiss this petition because it was instituted very shortly
after the Petitioner reneged from a consent-election agreement duly executed. In that agree-
ment the Petitioner, contrary to the unit contention it makes here, had agreed to go to an
election in a plantwide unit, as consistently urged by the Employer. As the Employer's
attack upon this proceeding is essentially a restatement of its unit contention, and as our
finding here on that point is in accord with the Employer's position, we find it unnecessary
to consider what merit there would be in the Employer's complaint in other circumstances.
The motion to dismiss is therefore denied.
107 NLRB No. 202.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case , 2 the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation 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 composed of all
driver- salesmen, relay, and special delivery drivers employed
at the Employer's Houston, Texas, plant. The Employer con-
tends that the only appropriate unit is a plantwide unit, including
all drivers, together with the city salesmen who are not sought
by the Petitioner.
The Employer is engaged in the processing and distribution
of milk and dairy products at its Houston plant. The principal
executive officers of the Employer closely supervise all its
operations. They are assisted by a plant manager, in charge
of bottling, pasteurizing, and other plant -production operations,
and a sales manager , in charge of distribution and sale of
products, who supervises the employees requested herein.
From about 1937 until 1939 the Employer and an affiliate of
the Petitioner entered into collective-bargaining agreements
embracing both plant employees and driver-salesmen in a
single unit. Apparently no formalized bargaining or formal
attempts to bargain occurred from the latter year until June 3,
1952, when the Employer and the Petitioner executed a consent-
election agreement covering a unit of driver-salesmen.3 The
Petitioner lost the election. Several months later the parties
executed a second election agreement covering a unit of plant
employees.4 Several weeks later the Petitioner withdrew this
petition. On August 6, 1953, the Petitioner again filed a petition
in Case No. 39-RC-652 seeking a unit of driver-salesmen. On
August 21, 1953, after the close of the hearing and transfer of
the record in that case to the Board, the parties executed a
consent-election agreement embracing a unit composed of
both plant employees and driver-salesmen. On August Z6, 1953,
the day after the Board remanded that case to the Regional
Director for the purpose of conducting the consent election, the
Petitioner requested and was granted permission by the
Regional Director to withdraw its petition and the scheduled
plantwide election was canceled. Five days later the Petitioner
filed the instant petition.
It is clear from the foregoing facts that the Petitioner's
present unit request is based solely upon the extent of its
2 The parties' stipulation that the record in Case No. 39-RC-652 be incorporated herein
i^ hereby approved.
3Case No. 39-RC-468.
4Case No. 39-RC-488.
ABC VENDING CORPORATION AND DEE-LISH BEVERAGES, INC. 957
organization , a factor to which, under Section 9 (c) (5) of the
Act, the Board is precluded from according controlling weight.
Thus the history of past bargaining on a plantwide basis, the
Petitioner ' s more recent action in filing apetitionfor the plant
employees , and its initial consent to a plantwide election in the
case which immediately preceded the present one, demonstrate
the appropriateness here of the broader unit . We therefore find
that , in the circumstances of this case , only a plantwide unit,
including the plant employees as well as drivers and driver-
salesmen , is appropriate.
The parties disagree regarding the unit placement of city
salesmen , whom the Employer would include , and the Petitioner
would exclude . City salesmen , in addition to posting advertising
matter and soliciting new accounts , also serve as substitute
driver-salesmen , at which time they perform the same duties
as the regular route men. As the city salesmen regularly per-
form the duties of relief driver - salesmen , we shall include
them within the unit.5
Accordingly , we find that all employees employed at the
Employer ' s Houston , Texas , plant, including all plant em-
ployees , maintenance men, garage and body men, retail
route salesmen , wholesale route salesmen , relief drivers,
ice cream route salesmen , relay drivers , special delivery
drivers , and city salesmen , but excluding all office and plant
clerical employees , guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of the Act.
[Text of Direction of Election omitted from publication.]
5See Foremost Dairies, Inc., 90 NLRB No. 189 (not reported in printed volumes of Board
Decisions).
ABC VENDING CORPORATION AND DEE-LISH BEVERAGES,
INC. and VENDING MACHINE AND BEVERAGE EM-
PLOYEES UNION (INDEPENDENT), Petitioner . Case No.
2-RC-5793. January 27, 1954
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 Murray
Geller , hearing officer. The hearing officer ' s rulings made
at the hearing are free from prejudicial error and are hereby
affirmed. I
'At the hearing Dee-Lish Beverages, Inc., herein called Dee-Lish, objected to being made
a party to this proceeding, on the ground that it was not named in the petition. Dee-Lish is a
wholly owned subsidiary of ABC Vending Corporation, herein called ABC. Only ABC was
named in the petition. However, Dee-Lish was named in and served with a copy of the order
107 NLRB No. 199.
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