Belle Vernon Milk Co, et al.

National Labor Relations Board - Board Decisions

Jun 30, 1950

90 N.L.R.B. 717 (N.L.R.B. 1950)

In the Matter of BELLE VERNON MILK C011IPANY, ET AL., EMPLOYERS and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, GARAGE AND AUTOMOTIVE
EMPLOYEES LOCAL UNION No. 35, AFL, PETITIONER
Cases Nos. 8-RC--653, 654, 655, 656, 657 658, 659, 660 , and 804.-De-
cided June 30, 1950
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon separate petitions duly filed, a consolidated hearing was held
in these cases before John H. Garver, hearing officer. 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 cases, the Board finds :
1. The Employers, Belle Vernon Milk Company, Telling Ice Cream
Company, Dairymen's Ohio Farmers Milk Company, O. A. Dean
:Dairy Company, Miller Gold Seal Dairy, Inc., Moss Farm Dairy, Inc.,
C. E. Obrock Dairy Company, and The Producers Milk Company,
hereafter respectively called Belle Vernon, Telling, Dairymen's, Dean,
Miller, Moss, Obrock, and Producers, whose employees we find below
together constitute a single appropriate unit, are corporations en-
gaged in the purchase, processing, and sale of dairy products at whole-
sale and retail. All except Telling are Ohio corporations ; Telling
is a Delaware corporation. Each operates a plant in, or near Cleve-
land, Ohio. Belle Vernon and Telling are wholly owned subsidiaries
.of National Dairy Products Corporation, a Delaware corporation
-which owns the "Sealtest" trade name; the latter corporation owns
and operates other subsidiaries also engaged, in most of the States, in
-the processing and sale of dairy products.
The aggregate 1 sales of the eight above-named Employers total
approximately $17,345,261 annually; of that amount, approximately
i In considering the matter of the Board's jurisdiction in these cases , we treat the eight
Employers, whose employees together constitute a single appropriate unit, as a single
-enterprise . See Indianapolis Cleaners and Launderers Club, Supplemental Decision, 87
=NLRB 472, and cases cited therein.
90 NLRB No. 117.
717
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$100,000 represents sales to purchasers located outside Ohio... The,
aggregate purchases of the eight above-named Employers total ap-
proximately $6,524,675 annually ; of that amount, approximately
$632,375 represents purchases of materials, machinery, and equipment
procured from suppliers located outside Ohio.
The Employer,. Fairmont Foods Company, hereafter called Fair-
mont, is a Delaware corporation also engaged in the processing and
sale of dairy products. It operates a plant in Cleveland, Ohio, and
others in Michigan, New York, and Nebraska. Its sales total ap-
proximately $10,000,000 annually, of which half are made outside
Ohio. The record does not disclose the amount of purchases made by
this Employer.
We find that Fairmont is engaged in commerce within the meaning
of the National Labor Relations Act. We further find, without ref-
erence to Fairmont's operations, that the other Employers involved in
these cases are together engaged in commerce within the meaning of
the National Labor Relations Act, and that it will effectuate the
policies of the Act to assert jurisdiction over them.2
2. The Petitioner and the Intervenor, International Association of
Machinists, Lodge No. 1363, District 54, are labor, organizations
claiming to represent certain employees of the Employers.
3. Questions affecting commerce exist concerning the represent.a-
tion of employees of Belle Vernon, Telling, Dairymen's, Dean, Miller,
Moss, Obrock, and Producers within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
For the reasons indicated in paragraph 4, below, no question affect-
ing commerce exists concerning the representation of employees of
Fairmont within the meaning of such sections of the Act.3
4. As set forth above, the nine Employers herein are each engaged
in the processing and sale of dairy products. Each operates a plant in,
or near, Cleveland, Ohio.
These cases involve the auto mechanics, painters, body men, and
refrigeration men employed by the Employers at their Cleveland
plants. The Petitioner seeks a single multiemployer unit for all such
employees. All the Employers, except Fairmont, agree that a multi-
employer unit is appropriate. Fairmont contends that a separate unit
should be established for its employees. The Intervenor asserts that
the employees of each of the nine Employers should be placed in a
separate unit.
2 Carnation Company of Texas , 78 NLRB 519 ; Clearfleld Cheese Company, Inc., 85
NLRB 277; Hawthorne Dairy Products Company, 85 NLRB 260; Foremost Dairies, Inc.,
86 NLRB 585.
3111 view of our dismissal of the petition filed in Case No. 8-RC-804, which affects em-
ployees of Fairmont , it is unnecessary for us to pass upon Fairmont's contention that its
contract with the Intervenor constitutes a bar.
BELLE VERI ON MILK COMPANY, ET AL. 719?
Except to indicate that at some time before 1946 the Intervenor
had separate bargaining contracts with six of the Employers involved
herein, the record is silent with respect to the history of bargaining-
before 1946 affecting the Employers' employees in classifications here
involved. In 1946, the Intervenor met with a committee representing
Dairymen's, Dean, Miller, Moss, Obrock, Producers, and the predeces--
sor corporation of Telling and Belle Vernon, and came to terms with-
respect to the renewal of their then existing separate bargaining con-
tracts affecting the employees sought in the instant case. Thereupon,.
the Intervenor and those companies signed separate, but identical,,
bargaining contracts. That procedure was repeated in 1947. In 1948,,
Telling and Belle Vernon were formed as separate corporations, and
were represented at the joint negotiations for that year; in addition,,
a representative of Fairmont acted as an observer at the negotiations..
Again, separate, but identical, bargaining contracts resulted from the
1948 joint negotiations; but Fairmont, already bound by an existing
contract with the Intervenor, did not sign such a contract. In 1949,.
Fairmont was actively represented at the negotiations for that year;,
and also became a party to a contract similar to the one then executed
by the other Employers herein, such contract being made effective.
retroactively in order to align it with the termination dates of the
contracts involving the other Employers.4
In January 1950, each of the Employers herein, except Fairmont,
authorized a bargaining committee to represent it during negotia--
tions contemplated for 1950. Fairmont refused to grant such author-
ization, and has since been negotiating with the Intervenor on an indi-
vidual basis regarding the renewal of its contract. Although the.
authority was granted, joint negotiations for the other Employers have-
not been held during 1950 because of the pendency of the instant cases.
Previous decisions of the Board have established the principle that.
participation in joint bargaining negotiations, either directly or-
through authorized representatives, and the uniform adoption by the
participants of an agreement resulting from such negotiations, indi-
cate a desire on the part of the, participants to be bound by joint rather
than individual action; and warrant the establishment of a multiem-
ployer unit.5 Here, all the Employers except Fairmont have for a
'Two unions not involved herein , Local No . 307, International Brotherhood of Black--
smiths, Drop Forgers and Helpers, AFL, and Gas Station, Garage and Parking Lot
Union No. 964, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, then and now representing other employees of the Employers not
affected by these cases, participated in the annual joint negotiations for the years 1946-
1949 . With the Intervenor , these unions are joint signatories to the contracts signed for-
the respective years by the Employers , each union signing on behalf of the employees it
represented.
5 Associated Shoe Industries of Southeastern Massachusetts, Inc., et al ., 81 NLRB 224
Air Conditioning Company of Southern California , at al ., Supplemental Decision , 81 NLRB:
946, and cases cited therein.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of years authorized a negotiating committee to negotiate on
their behalf, and have uniformly accepted the agreements negotiated
by their committee. In these circumstances, we believe that the pre-
requisites which warrant the inclusion of their employees in a multi-
employer unit have been met. Accordingly, we find appropriate a
multiemployer unit for the employees of Belle Vernon, Telling, Dairy-
men's, O. A. Dean, Miller, Moss, Obrock, and Producers.
Fairmont has been a party to the joint bargaining among the Em-
ployers, for a shorter period of time than each of the other Em-
ployers, and now not only opposes the inclusion of its employees in a
multiemployer unit, but has also refused to authorize joint negotiations
on its behalf and has actually been bargaining individually with the
Intervenor with respect to the renewal of their most recent agreement.
Accordingly, we shall not include Fairmont's employees in the multi-
employer unit.' Moreover, although a unit confined to Fairmont's
employees would be appropriate, we note that the Petitioner has made
no showing of interest whatever among Fairmont's employees. Ac-
cordingly, in accordance with our administrative policy, we shall not
direct an election for such employees, but shall instead dismiss the
petition affecting those employees.
Upon the basis of the foregoing, we find that all the auto mechanics,
painters, body men, refrigeration men, and their helpers and appren-
tices, of Belle Vernon, Telling, Dairymen's, Dean, Miller, Moss,
Obrock, and Producers, at these Employers' plants in, and near, Cleve-
land, Ohio, excluding garagemen, lubrication men, porters, garage
superintendents, blacksmiths, blacksmiths' helpers, professional em-
ployees, office and clerical employees, guards, and supervisors as defined
in the Act, continue a single unit appropriate for the purposes of
collective bargaining within the meaning of the Act.
DIRECTION OF ELECTION 8
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Belle Vernon Milk Company, Tell-
ing Ice Cream Company, Dairymen's Ohio Farmers Milk Company,
O. A. Dean Dairy Company, Miller Gold Seal Dairy, Inc., Moss Farm
Dairy, Inc., C. E. Obrock Dairy Company, and The Producers Milk
Company, 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.
° Air Conditioning Company of Southern California , et al., supra.
a See Consolidated Steamship Company, et al., 75 NLRB 1254.
s Either participant in the election directed herein may, upon its prompt request to, and
approval thereof by , the Regional Director , have its name removed from the ballot.
BELLE VERNON MILK COMPANY, ET AL. 721
and 203.62 of National Labor Relations Board Rules and Regulations,
among the employees of the said Employers in the unit found appro-
priate 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 pay-
roll period because they were ill or on vacation or temporarily laid
off, but excluding those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to the
date of the election, and also excluding employees on strike who are not
entitled to reinstatement, to determine whether they desire to be repre-
sented, for purposes of collective bargaining, by International Broth-
erhood of Teamsters, Chauffers, Warehousemen and Helpers of
America, Garage and Automotive Employees Local Union No. 35,
AFL, or by International Association of Machinists, Lodge No. 1363,
District 54,9 or by neither.
ORDER
IT IS HEREBY ORDERED that the petition filed in Case No. 8-RC-804
be, and it hereby is, dismissed.
9 we grant the. Petitioner 's and the Intervenor's request that their name appear on the
ballots , respectively , as "Teamster 's Local Union No. 35, AFL," and as "Lodge No. 1363,
District 54, International Association of Machinists."
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