The Pet Milk Co.

National Labor Relations Board - Board Decisions

Nov 21, 1945

64 N.L.R.B. 901 (N.L.R.B. 1945)

In the Matter of THE PET MILK COMPANY and UNITED GAS, COKE AND
CHEMICAL WORKERS OF AMERICA, CIO
Case No. 10-R4603.-Decided November 21, 1945
Mr. Richard S. Jones, of St. Louis, Mo., and Mr. Clarence H.
Reynolds, of Greeneville, Tenn., for the Company.
Mr. C. W. Danenberg, of Greensboro, N. C., and Mr. J. C. Taylor, of
Knoxville, Tenn., for the United.
Mr. J. J. 4, orr isette and Mr. Howard Teague, of Kingsport, Tenn.,
for the Teamsters.
Mr. Donald B. Brady, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Gas, Coke and Chemical Work-
ers of America, CIO, herein called the United, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of The Pet Milk Company, Greeneville, Tennessee, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Paul S. Kuelthau,
Trial Examiner. A hearing was held at Greeneville, Tennessee, on
September 28, 1945. The Company, the United, and the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Teamsters,' appeared and participated.
All parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were
afforded an opportunity to file briefs with the Board.
1 At the hearing the Teamsters ' oral motion to intervene was granted without objection.
64 N. L R. B., No. 153.
901
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Pet Milk Company is a Delaware corporation, operating a
plant in Greeneville, Tennessee. During 1944 the Company purchased
raw materials for use at its Greeneville plant valued in excess of
$1,000,000, 25 percent of which was shipped from points outside the
State of Tennessee. During the same period the Company's sales at
its Greeneville plant exceeded $1,000,000, 75 percent of which was
shipped to points outside the State of Tennessee.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
United Gas, Coke and Chemical Workers of America, is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the Company.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization affiliated with
the American Federation of Labor, admitting to membership employ-
ees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
During the latter part of August 1945, the United requested recog-
nition as the exclusive bargaining representative of the employees in
the unit described in Section IV, below. The Company declined to
grant such recognition.
In a letter of October 4, 1945, the Teamsters urges for the first time
that an agreement it has with the Company, which allegedly was auto-
matically renewed by the failure of either contracting party to give
notice of cancellation pursuant to its terms, constitutes a bar to this
proceeding. This contract was not introduced into evidence by the
Teamsters, but the report of the Field Examiner, adverted to later,
informs us that the contract's expiration date was October 1, 1945.
Inasmuch as the Teamsters admits in its letter of October 4 that at the
time of writing negotiations were being conducted concerning a "new
contract for the coming year," it is clear that any automatic renewal
of the agreement had been effectively forestalled. Consequently, Ave
find that a present determination of representatives is not precluded.2
2 See Matter of Purepac Corporation , et al., 55 N. L. R. B. 1386; Matter of American
Woolen Company ( Webster Mills), 57 N. L . R B 647; Matter of General Metals Corpora.
tion, 59 N. L . R. B. 1252.
THE PET MILK COMPANY 903
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates the United represents a substantial number of employees
in the unit hereinafter found appropriate.'
We find that a question 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.
IV. TIIE APPROPRIATE UNIT
At the hearing the Teamsters joined in a stipulation by all the
parties that the appropriate unit consists of all employees of the Com-
pany at Greeneville, Newport, Morristown and Jonesboro, Tennessee,
including working foremen, but excluding supervisory, clerical and
office employees, and other specified categories. The Teamsters now
contends in its letter of October 4 that such a lout is inappropriate,
urging that a broader unit be established. But there is nothing to
indicate that the stipulation was not fairly made or that the agreed
unit is necessarily inappropriate for collective bargaining purposes.
Accordingly, we find that all employees of the Company at Greene-
ville, Newport, Morristown, and Jonesboro, Tennessee, including
working foremen,4 but excluding clerical and office employees, field
men, the district manager, the plant managers, tin shop managers,
assistant managers, supervisory foremen, receiving station managers,
and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE f3ETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
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 Direction.'
'The Field Examiner reported that the United submitted 161 designation cards ; that
the names of 153 persons appearing on the cards were listed on the Company's pay roll of
September 1, 1945 , which contained the names of 256 employees in the appropriate unit,
and that 147 cards were dated in August 1945 , one in September 1945, and 5 were undated
The Teamsters contends in its letter of October 4 that the United has not shown that
it represents a majority of the employees we have held, however, that it is sufficient for
a petitioning union to make a substantial showing adequate to raise the probability that
it may be selected by a majority . See Matter of Bethlehem Steel Company ( Shipbuilding
Division ), 61 N. L. R. B. 1410.
4 Apparently these employees are not supervisory within the meaning of our customary
definition.
5 The parties are agreed that seasonal employees who accumulate seniority and generally
return for seasonal work each year are eligible to vote. The parties are further agreed
that such seasonal employees may be found on the Company's pay roll ending September 16,
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 ITT, Section 9, of National Labor Relations
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 The Pet Milk
Company, Greeneville, Tennessee, an election by secret ballot shall
be conducted as early as possible, but not later than sixty (60) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Tenth 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 among
employees in the unit found appropriate 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
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 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 they desire to be represented by United Gas,
Coke and Chemical Workers of America, CIO, or by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, A. F: L., for the purposes of collective bargaining, or by
neither.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
1945 We therefore find that seasonal employees listed on the Company' s pay roll ending
September 16, 1945, are eligible to vote in the election hereinafter directed.