The Milk and Ice Cream Dealers of the Greater Cincinnati

National Labor Relations Board - Board Decisions

Apr 25, 1951

94 N.L.R.B. 23 (N.L.R.B. 1951)

MILK AND ICE CREAM DEALERS OF GREATER CINCINNATI AREA 23
clerical employees, on the other hand, have little or no contact with
either the operations, maintenance, or clerical employees assigned to
those departments.
The Board sees no cogent reason in this case for departing from
its usual rule to include plant clericals in, and to exclude office clerical
employees from, units of operating and maintenance employees.'
We find, therefore, that the following employees constitute a emit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act:
All employees of the Employer employed in the carrying on of
its business and operations in and about Louisville, Kentucky, ex-
cluding officers, executives, professional employees, the chief clerk,
and the stenographer of the shop department, the schedule engineer,
and the schedule maker, traffic checkers, assistant purchasing agent,
cashier, chief supervisor, secretaries of the president, vice president,
and general manager, transportation manager, employees in the
claims and industrial relations departments, office clerical employees,
guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
-volume.]
' General Petroleum Corporation, 83 NLRB 514; The Baltimore Transit Company,
59 NLRB 159; Cincinnati, Newport and Covington Railway Company, 56 NLRB 820.
THE MILK AND ICF CREAM DEALERS OF THE GREATER CINCINNATI,
OHIO, AREA AND CAMPBELL AND KENTON COUNTIES KENTUCKY, AND
HAMILTON, OHIO 1 and MILK AND ICE CREAM DRIVERS AND DAIRY
EMPLOYEES LOCAL UNION NO. 98, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL, PETITIONER. Case No. 9-UA-17 1. April 05, 1951
Decision and Direction of Elections
Upon a petition duly filed a hearing was held before Seymour
Goldstein, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
1 The following Employers are named as members of this group : The Coors Bros. Co.;
The Hyde Park Dairy Company ; Emmert J Marschman , a sole proprietorship d/b/a
Clover Leaf Dairy ; G H 13erling , Inc , Joseph Hollmann and Fred Hellmann , a partner-
ship , d/b/a Hellman Bros . Dairy, Harry S Mantlery, a sole proprietorship , d/b/a John
C Mandery & Sons; The Kaesenineyer & Sons Co ; William Hinnenkamp and Joseph
Hinnenkamp , it partnership , d/b/a IImnenkamp Dairy, Feldman Dairy Company, Inc ,
Leo Ruther and Alfred Rather , a partnership , d/b/a Meyer & Ruther Dairy ; George
Rehkamp and Joseph Kahmann , Jr., a partnership , d/b/a Kahmann & Rehkamp Company ;
Harry Mause, a sole proprietorship , d/b/a H . 1Iause Dairy ; Qeo T. Niehoff, a sole
proprietorship , d/b/a Geo T. Niehoff Dairy ; The H Meyer & Sons Dairy Co , Opekasit,
Inc , The J Weber Dairy Co , Louis J. Trauth , Si . Louis J. Trauth , Jr., and Albert E.
Trauth ', a partnership , d/b/a Louis J Trauth Daii y ; H Miller Dairy Co, Inc., Dale
94 NLRB No. 11.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-lnem-
ber panel [Members Houston, Reynolds, and Styles].
Upon the entire record in the case, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act. 2
2. The labor organization involved claims to represent certain em-
ployees of the Employers.
3. The question concerning authorization of union shop :
Fora number of years the Petitioner and the Employers have nego-
tiated collective bargaining agreements covering the employees con-
cerned. As detailed hereinafter, negotiations have been on a inulti-
employer basis, followed by the execution of identical contracts by
the individual Employers.
As the Employers currently recognize the Petitioner as the col-
lective bargaining representative of their employees, we find that no
question affecting commerce exists concerning the representation of
employees of the Employers in the units sought by the Petitioner.
4. The appropriate unit :
In Avondale Dairy Co. et al., 92 NLRB 89 which involved 21
of the Employers herein and the same Petitioner, the Board found a
mu>ltiemployer unit comprising the 47 Employers named herein to be
the appropriate unit for a union-security authorization election under
Section 9 (e) of the Act. All of the Employers, except one, agree to
the appropriateness of including their employees in the multlem-
ployer unit. However, one of the Employers, Beatrice Foods Com-
pany, hereinafter called Beatrice, contends that it has withdrawn from
this multiemployer bargaining relationship and requests a separate
.unit confined to its own employees. The Petitioner takes no position,
but desires an election at the Beatrice plant in the event that such a
unit is found appropriate.
Grace, John Grace. Jr , James Grace and Thomas Grace. it partnership. d/h/a Willson Dairy
Products ; Joseph Druehe and Caroline Heile, a partnership. d/b/a Avondale Dairy Co
The J H Fielman Dairy Company , Schmiesing , Inc., The Niser Ice Cream Company,
Ding Dairy, Inc The J. H Berlin,- Dairy Pioducts Co , Herman T Feldman, a sole
proprietorship d/b/a Newport Dairy; Fred H Plapp, a sole proprietorship. d/b/a
Highland Park Dairy , Harry Summe and Harriet Summe, a partnership , d/b/a Summe
Bros ; John Trenkamp, Joseph J. Trenkamp, and Lawrence H Trenk,unp, it partnership
d/b/a John Trenkamp Daiiy; Herman H Hanneken , a sole proprietorship , d/b/a The
Henneken Dairy Company , Wehr Dairy, Inc , Anna Krechtling, a sole proprietorship,
d/b/a Bosse Dairy . Emma H Myers . a sole proprietorship , d/b/a L Myers Dairy ; Cedar
Hill Farms, Inc , H Woebkenbeig Dany Co, Inc ; Andrew L Wolfzorn, a sole proprietor-
ship- d/b/a A. L. Wolfzoin Dairy, The Woodmont Dairy Company, The J T Rather &
Sons Co ; Summe & Raterniann Co , Inc , Albert J Ziegler and Pete J. Young, a partner-
ship, d/b/a Jersey Farm Dairy. Gillespie Milk Products Corporation , 0 H Boerger and
B. P. Boerger, a partnership, d/b/a Boerger Dairy Farms: The French-Bauer Company,
a Division of the Cooperative Pure Milk Association, The Hiland Dairy Company; The
Matthews-Frechtling Daisy Company, The Beatrice Foods Company, The Fi echtling
Dairy Company
2 See Avondale Dairy Go , et G1, 92 NLRB 89 The parties stipulated to incorporate
the record in that case as part of the record in the instant proceeding
MILK AND ICE CREAM DEALERS OF GREATER CINCINNATI AREA 25
As noted in Avondale Dairy, supra, these Employers in various
combinations have had joint bargaining relationships with the Peti-
tioner since 1913. In 1949 and in 1950 they created a nine-man com-
mittee to represent them in negotiating a new agreement with the
Petitioner. Beatrice participated in these joint negotiations, and the
record shows that in prior years at various times, it had joined in-
formally in group bargaining with the other Employers. However,
during 1950 negotiations representatives of Beatrice stated that this
was the last time they would join any group bargaining, and after
the conclusions of the negotiations, Beatrice did not enter into any
written contract with the Petitioner, although in practice it has fol-
lowed the terms of thus- new agreement. Since the close of 1950
group negotiations Beatrice has met with the Petitioner to discuss
contract terms for its employees only. At the hearing in this case,
representatives of Beatrice stated that they did not intend to engage
in multiemployer bargaining in the Cincinnati area in the future.
The Board has held that, despite its earlier participation in group
bargaining, if an employer at an appropriate time manifests an
equivocal intent to pursue an individual course in his labor relations,
a unit limited to his employees alone becomes appropriate.3 We find
that Beatrice has evidenced such an intent at an appropriate time,'
and that a unit limited to its employees alone is appropriate.
A dispute exists also as to whether certain employees should be
included in the unit for the purpose of a Section 9 (e) election. On
the entire record, including the record in Avondale Dairy, supra, we
find the following employees whose job classifications are listed in
the contracts which designate the composition of the unit are ap-
propriately in the unit and eligible to vote in the election directed
hereinafter:
(a) The four shipping clerks employed by the French-Bauer
Company.
The record shows that these employees are engaged in routine
duties of receiving orders and assigning deliveries to the special
delivery ice cream drivers. They are under the supervision of the
plant superintendent, receive the same wage scale as plant employees,
and are located in a separate office in the ice cream department of the
Employer. The fact that upon certain occasions they may reprimand
a driver for being derelict in his duties, or grant time off in emer-
gency situations only, is not sufficient basis for finding, as urged by
the Employer, that they are supervisors. Nor do Nye find any basis
for concluding that they are office clericals.
J RKO Radio Pictures, Inc, 90 NLRB No 58 and cases cited therein
4 Unlike the situation before the Board in Engineering Metal Products Corporation,
92 NLRB 823, Beatrice did not reverse its position after having entered into the
jointly negotiated agreement of 1950 Beatrice, as noted above, has never signed that
agreement See Economy Shade Company, 91 NLRB 1552
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) The garage employee, employed by the J. H. Fielman Dairy
Company.
We find no merit to the Employer's contention that this employee
is not eligible to vote because he is not a member of the Petitioner.
The contract specifically includes his classification.
(c) The porter employed by the Avondale Dairy Company.
We find, contrary to the Employer's contention, that his work,
which includes cleaning the Employer's trucks and dairy grounds,
comes within the job classifications of the contract. The fact that
the Employer's private residence adjoins the dairy, and that he also
does maintenance work at the Emplbyer's residence while receiving
his full salary from the dairy, is not sufficient to remove him from
the unit.
However, we shall exclude the following from the voting group :
(a) The inside production employee employed by the Boerger
Dairy Farms, because of his close relationship to the Employer.
(b) The butter drivers of the Beatrice Foods Company, because
they are represented by the Petitioner in a unit covered by an exist-
ing contract, different from the unit for which authorization for a
union-security contract is herein sought.
Accordingly, we find that the following employees constitute units
appropriate for the purposes of union-security authorization elec-
tions within the meaning of Section 9 (e) of the Act.
1. All employees of the Employers, listed below,' who are covered
The Coors Bros Co , The Hyde Park Dairy Company ; Emmert J. Marschman, a sole
proprietorship d/b/a Clover Leaf Dairy: G. H Berling, Inc , Joseph Hollmann and
Fred Hollmann, a partnership, d/b/a Hollman Bros Dairy ; Harry S. Mandery, a sole
proprietorship, d/b/a John C Mandery & Sons, The Kaesemeyer & Sons Co ; William
Hinnenkamp and Joseph Hmnenkamp, a partnership, d/b/a Hmnenkamp Dairy; Feldman
Dairy Company, Inc ; Leo Ruther and Alfred Ruther, a partnership d/b/a Meyer & Ruther
Dairy ; George Rehkamp and Joseph Kahmann, Jr, a partnership, d/b/a Kahmann &
Rehkamp Company ; Harry Mause, a sole proprietorship, d/b/a H. Mause Dairy ; Geo. T.
Niehoff, a sole proprietorship, d/b/a Geo T. Niehoff Dairy, The H. Meyer & Sons Dairy
Co., Opekasit, Inc. ; The J. Weber Dairy Co. ; Louis J. Trauth, Sr., Louis J. Trauth, Jr.,
and Albert E Trauth, a partnership, d/b/a Louis J. Trauth Dairy ; H. Miller Dairy Co ,
Inc. ; Dale Grace, John Grace, Jr, James Grace and Thomas Grace, a partnership, d/b/a
Wilson Dairy Products ; Joseph Druehe and Caroline Heile, a partnership, d/b/a Avondale
Dairy Co ; The J H. Feelman Dairy Company; Scinniesing, Inc. ; The Niser Ice Cream
Company ; Dilg Dairy, Inc , The J. H Berhng Dairy Products Co.; Herman T. Feldman,
a sole proprietorship, d/b/a Newport Dairy ; Fred H. Plapp, a sole proprietorship, d/b/a
Highland Park Dairy ; Harry Summe and Harriet Summe, a partnership, d/b/a Summe
Bros., John Trenkamp, Joseph J Trenkamp, and Lawrence H Trenkamp, a partnership,
d/b/a John Trenkamp Dairy ; Herman H Hanneken, a sole proprietorship, d/b/a The
Hanneken Dairy Company ; Wehr Dairy, Inc , Anna Krechtling, a sole proprietorship,
d/b/a Bosse Dairy ; Emma H. Myers, a sole proprietorship, d/b/a L Myers Dairy ; Cedar
Hill Farms, Inc., H. Woebkenberg Dairy Co, Inc. ; Andiew L Wolfzorn, a sole proprietor-
ship, d/b/a A. L Wolfzorn Dairy ; The Woodmont Dairy Company, The J. T. Ruther &
Sons Co.; Summe & Ratermann Co, Inc ; Albert J Ziegler and Pete J. Young, a
partnership, d/b/a Jersey Farm Dairy ; Gillespie Milk Products Corporation ; O. H.
Boerger and B. P. Boerger, a partnership, d/b/a Boerger Dairy Farms ; The French-Bauer
Company, a Division of the Cooperative Pure Milk Association ; The Hiland Dairy Com-
pany ; The Matthews-Frechtlmg Dairy Company ; The Frechtling Dairy Company.
LIGGETT & MYERS TOBACCO COMPANY 27
in the latest collective bargaining agreements negotiated with the
Petitioner, including the employees discussed above '6 excluding all
office clerical employees, all retail store employees, all employees
presently covered by collective bargaining agreements with other
labor organizations, and all guards, professional employees, and
supervisors as defined in the Act.
2. All ice cream driver salesmen and truck drivers, all plant per-
sonnel, plant porters, checkers, shipping clerks, maintenance men,
and garage employees, employed by Beatrice Foods Company, ex-
cluding all butter drivers, office clerical employees, all retail store
employees, all guards, professional employees, and supervisors as
defined in the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
8 Except for the inside production employee of Boerger Dairy Farms.
LIGGETT & MYERS TOBACCO COMPANY and TOBACCO WORKERS INTER-
NATIONAL UNION A. F. OF L., LOCAL No. 176, PETITIONER . Case No.
34-RC-194. April 26,1951
Amended Decision, Order, and Direction of Election
On October 20, 1950, the Board issued a Decision and Order
in which, among other things, it dismissed the petition in the in-
stant case on the ground that the air-conditioning employees in the
unit sought by the Petitioner did not constitute an appropriate unit.
On March 5, 1951, the Petitioner sought reconsideration of this dis-
missal, urging that, even though the air-conditioning employees are
not considered at this time to constitute a separate appropriate unit,
they be given an opportunity to indicate whether or not they wish
to be included in the production unit currently represented by the
Petitioner.
On March 26, 1951, the Board issued a notice to show cause why
an election should not be directed in a voting group composed of
the air-conditioning employees, to determine whether they desire to
be represented by the Petitioner, by the Intervenor, International
Association of Machinists, Lodge No. 721,2 or by neither. There-
after, the Petitioner filed an answer to the notice to show cause stat-
ing that it desired that such an election be held and that its name
be placed oil the ballot. The Intervenor also filed an answer stating
191 NLRB 1145 . The present proceeding was at that time consolidated with Leggett
f Myers Tobacco Company, Case No. 34-RC-183.
2 The Intervenor is the current contractual representative of a group of mechanical
maintenance employees.
94 NLRB No. 22.