The Fairmont Creamery Co.

National Labor Relations Board - Board Decisions

Sep 4, 1944

58 N.L.R.B. 39 (N.L.R.B. 1944)

In the Matter of THE FAIRMONT CREAMERY COMPANY and INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSE-
MEN & HELPERS or AMERICA, LOCAL 116, A. F. OF L.
Case No.18-R-1052.-Decided September 4, 19444
Mr. William J. Scott, for the Board.
Mr. J. H. Deems, of Moorhead, Minn., for the Company.
Messrs. N. E. Kragerud and M. G. Linemann, of Fargo, N. Dak., for
the Teamsters.
Helstein d Hall, by Mr. Kenneth J. Enkel, of Minneapolis, Minn.;
Mr. Joseph Schowalter, of Moorhead, Minn. ; and Mr. Melvin Gross, of
Casselton, N. Dak., for the UPWA.
Mr. Wallace E. Royster, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, Local 116, A.
F. of L., herein called the Teamsters, alleging that a question affecting
commerce had arisen concerning the representation of employees of
The Fairmont Creamery Company, Moorhead, Minnesota, herein called
the Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Stephen M. Reynolds, Trial
Examiner. Said hearing was held at Moorhead, Minnesota, on July 27,
1944. The Company, the Teamsters, and United Packinghouse Work-
ers of America, Local 73A, C. I. 0., herein called the UPWA, appeared,
participated, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues. During the hearing, the UPWA moved the dismissal of the
petition alleging that the Teamsters had not submitted evidence of sub-
stantial membership among the Company's employees. For reasons
appearing hereinafter, the motion is denied. 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.
58 N. L. R. B., No. 8. 39
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Fairmont Creamery Company is a Delaware corporation en-
gaged at Moorhead, Minnesota, in the production, processing, and sale
of butter, eggs, milk, cream, poultry, and other dairy products. The
total annual business of the Company exceeds several million dollars
in value. Sixty percent of the raw materials used at Moorhead is
shipped to the Company from points outside the State of Minnesota.
More than 90 percent of its finished products is shipped to points out-
side the State of Minnesota.
The Company concedes that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
&_Helpers of America, Local 116, is a labor organization affiliated with
the American Federation of Labor, -admitting to membership em-
ployees of the Company.
United Packinghouse Workers of America, Local 73A, is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On October 3, 1942, the Company and the UPWA entered into a
collective bargaining agreement covering all production and mainte-
nance employees with the exception of truck drivers and driver sales-
men, and providing for renewal for successive annual terms in the ab-
sence of notice of modification or termination by either party not more
than 60 days or less than 30 days prior to the anniversary date. The
contract was automatically renewed on October 3, 1943, for another
year. On June 1, 1944, after the Company had notice of the claim of
the Teamsters, an amendment to the contract was executed whereby its
term was extended to October 3, 1945. The UPWA contends that the
contract as extended constitutes a bar to this proceeding. We ,do not
agree. To give effect to the amending agreement extending the term
of the contract, under these circumstances, might permit a labor organ-
ization to perpetuate its agency without opportunity to the employees
to express a desire for change.' Since the renewed term of the contract
i See Matter of Wichita Union Stockyards Company, 40 N L R. B. 369.
THE FAIRMONT CREAMERY COMPANY 41
will soon expire and since the amendment further to extend it is not o
effective, we find that neither the original contract nor the amendment
thereto constitutes a bar to a present investigation of representatives.
The UPWA also contends that the Teamsters has not made a showing
of membership among the Company's employees sufficient to raise a
question of representation. According to the Acting Regional Direc-
tor and the Trial Examiner, the Teamsters submitted current authori-
zation cards from 87 of the Company's 302 employees. While this
showing of interest is slightly less than usually required of a petitioner,
the consideration that the UPWA contract contains a maintenance of
membership provision, persuades us that the showing of the Teamsters
is sufficient.2
In accordance with the conclusions above, we find that a question
affecting commerce has arisen concerning the representation of em-
ployees of the Company within the meaning of Section 9 (c) and See-
ti on.2 (6) and (7) of the Act..
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Teamsters requests a unit of the production and maintenance
employees covered by the UPWA contract and in addition the 21
driver-salesmen and 4 truck drivers employed by the Company.
The UPWA, while not desiring an election, contends that a pro-
duction and maintenance unit, excluding truck drivers and driver-
salesmen, is appropriate for bargaining purposes. The Company
maintains a neutral position. The UPWA representative admitted
at the hearing that the reason it does not seek to represent truck
drivers and driver-salesmen is to avoid competition with the Team-
sters and conceded further that in at least one other operation in
Minnesota, it represents truck drivers along with production and
maintenance employees.
Truck drivers and driver-salesmen, for the most part, work outside.
the plant and are more highly paid than production employees. How-
ever, all employees are covered by the same general labor policy and
vacation plan. -
The Board has generally considered truck drivers in such an opera-
tion as that of the Company to constitute a fringe group which may
or may not be consolidated in an industrial unit for the purposes of
collective bargaining. We see no reason on the basis of the record
before us to exclude the truck drivers and driver-salesmen from an
industrial unit when one of the labor organizations desires to include
them. On the other hand, we are convinced that truck drivers and
driver-salesmen by reason of their special function may constitute %
2 See Matter of Oregon Plywood Company, 33 N L. R. B 1234.
-42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separate appropriate bargaining unit. In this situation we shall
permit the employees to express their preference with respect to the
bergaining unit in an election. The UPWA does not desire to appear
,on the ballot in an election confined to employees working as truck
'drivers and driver-salesmen. 4
Upon the basis of the entire record, 'we shall order the conduct of
-elections among the employees of the Company within each of the
:groups listed below, excluding from each group office workers and
supervisory employees with authority to hire, promote, discharge,
-discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action.
Group I
All employees performing the work of truck drivers and driver-
-salesmen to determine whether or not they desire to be represented
by the Teamsters for the purposes of collective bargaining.
-Group II
All production and ntaintenance employees, excluding truck drivers
.and, driver-salesmen to determine whether they desire to be repre-
ented for the purposes of collective bargaining by the Teamsters or
the UPWA.
Pending the results of the elections, we shall make no determination
of the bargaining unit or units.
Those eligible to vote in the elections which we shall direct shall
be the employees of the Company described in the voting groups above
who were employed during the pay-roll period immediately preceding
the date of the Direction of Elections herein, subject to the limitations
and additions set forth therein.
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 Rela-
tions 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 Fairmont
Creamery Company, Moorhead, Minnesota, elections 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 super-
vision of the Regional Director for the Eighteenth 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 Regula-
tions, among the employees. in the voting groups below who were em-
ployed during the pay-roll period immediately preceding the date of
THE FAIRMONT CREAMERY COMPANY 43
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
any who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election , and exclud-
ing further , all office workers and supervisory employees with author-
ity to hire , promote, discharge , discipline , or otherwise effect changes
in the status of employees or effectively recommend such action : Group
f-All employees performing the work of truck drivers or driver-
salesmen to determine whether or not they desire to be represented
by International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men & Helpers of America , Local 116, A. F. of L ., for the purposes
of collective bargaining ; Group II-All production and maintenance
employees, excluding truck drivers and driver-salesmen to determine
whether they desire to be represented by International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers of America, Local
116, A. F. of L ., or by United Packinghouse Workers of America, Local
73A, C. I. 0., for the purposes of collective bargaining , or by neither.
CHAIRMAN MIlaas took no part in the consideration of the above
Decision and Direction of Election.