Puerto Rico Dairy, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1952

99 N.L.R.B. 1013 (N.L.R.B. 1952)

PUERTO RICO DAIRY, INC. 1013
PUERTO Rico DAIRY, INC., SAN JUAN DAIRY, INC., SAN JOSE CORPORA-
TION 1 and UNION DE TRABAJADORES DE LA INDUSTRIA LESHERA DE LA
PUERTO Rico DAIRY, AFFILIATED wITH UGT DE P. R. Case No.
d4-RC 219. Jwn e 26, 1952
Supplemental Decision and Order
On October 2, 1951, the Board issued a Decision and Direction of
Election 2 in the above-entitled proceeding. On November 9, 1951,
the Regional Director for the Twenty-fourth Region issued a certifi-
cation of representatives. Thereafter on March 12, 1952, the Board
granted the Employer's motion, made on December 21, 1951, for an
"Extension of Hearing" to clarify the unit, which previously had been
stipulated. On April 23, 1952, a hearing was held before Philip
Licari, hearing officer, for the purpose of adducing additional evidence
with respect to the status of certain individuals designated as "com-
mission men" and "helpers of commission men." The Board 3 has re-
viewed the rulings of the hearing officer and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The record shows that the "commission men," whom the Employer
would exclude from the unit as independent contractors, sell milk in
the metropolitan area of San Juan, Puerto Rico, under an oral agree-
ment with the Employer terminable at will. The milk sold bears the
label of the Employer, i. e., "Puerto Rico Dairy Milk." The commis-
sion men drive trucks which are owned by the Employer and bear the
name "Puerto Rico Dairy, Inc.," the license and ownership documents
being in the name of the San Juan Corporation. The Employer pays
for the gasoline used to operate the trucks and makes all repairs to them.
In the event of a breakdown, the commission men call the Employer
and the latter sends out another truck as replacement. The commis-
sion men wear uniforms supplied by the Employer at the latter's ex-
pense. The uniforms have the Employer's name on them.
Each commission man receives the milk in the morning, leaves with
a loaded truck, makes the daily deliveries of milk, and returns in the
evening at which time he turns in to the Employer the amount of
money collected.
I As no evidence was introduced at the hearing with respect to "San Jose Corporation,"
we are not in this decision passing on the Employer 's contention that "San Jose Corpora-
tion" be omitted as a party herein.
2 Unpublished.
8 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Styles and Peterson].
99 NLRB No. 144.
215233-53-65
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The commission men are compensated weekly on the basis of 13/2
cents for each quart of milk.4 They are held accountable for the quan-
tities of milk received, reimbursing the Employer for spoilage and
unsold milk. It is the normal practice of the Employer to give, them
an annual "present," usually in the sum of either $25 or $50.
The Employer determines the price at which the milk is sold and
the men are not supposed to sell below or above that price.
Although there are no fixed working hours, the exigencies of the
work requires the men to receive and distribute the milk on a
reasonably regular basis each day.
When complaints are made as to the service, they are generally
made to the Employer. Thus, while the commission men seek out
customers, it appears from the record that the customers look to the
Employer when not satisfied with the way in which they are being
serviced. The Employer's president, Torres, explained that because
the milk bears the Employer's label, customers call the plant under
such circumstances.
As to the relationship between the Employer and the commission
men, Torres testified further that if a commission man became drunk
or did not perform his work in some other manner, "I think we
could fire him." 5
The Employer deducts sums for social security and makes work-
men's compensation payments for the commission men e They are
not under bond.
So far as the record shows, the commission men perform. services
exclusively for the Employer. Indeed, one of the men testified that
he cannot transport milk of another dairy because "I consider that
the vehicle is not mine." 7
The Employer's witness testified that the commission men decide
by themselves which route each is to take and also devise new routes
and redistribute old ones. However, when a route was about to be
discontinued in the city of Rio Piedras and its suburbs, it was the
+ There was testimony that the rate of compensation was originally 1 cent per quart ;
that Ruiz , the union representative, took up the matter of an increase in rate with the
Employer ' s president , that the two "discussed it" ; and that as a result, the rate was
raised to 17 cents a quart. The Employer's president testified that this occurred, but
stated that he told Ruiz at the time that the commission men were not members of the
contracting union.
5 Although Torres testified at first that "we can't fire them for not delivering the milk,"
he was asked later , "Suppose a commission man does not perform well , he does not deliver
the milk or he does not bring you the money . What do you do about it ?" And his answer
was, "well , if he does not bring the money , he would have to be fired unless he produces
the money "
B The Employer 's attorney stated that this is done under "local law." There is no
amplification in the record with respect to this explanation
7 The Employer 's attorney explained that a regulation of the Department of,Health
of Puerto Rico prohibits doing this
PUERTO RICO DAIRY, INC. 1015
Employer, and not the commission men, who sent out a "notice to our
customers and clients residing in Rio Piedras and its Suburbs," a
advising the customers of this fact. Although President Torres ex-
plained that the notice was sent at the request of the commission men,
it seems clear from the contents of the notice that the Employer regards
the discontinuance of routes as its own province, and notifies the
customers in terms indicating that it considers them its own customers.
We believe that the preponderance of the evidence indicates that the
relationship of the commission men to the Employer is that of em-,
ployees rather than of independent contractors.° Accordingly, we
find, contrary to the Employer's contention that the commission men
are employees within the meaning of the Act and shall include them
in the unit io
We shall therefore amend the unit description in the Decision and
Direction of Election heretofore issued herein in conformity with
our above findings.
Order
IT IS HEREBY ORDERED that the unit description in the Decision and
Diction of Election heretofore issued herein be, and it hereby is
amended to read as follows :
All production, maintenance, and distribution employees, in-
cluding bottle washer operators, filling machine operators, bottle
carriers, can washing machine operators, tank washers, icebox
men, ice plant men, cheese men, helpers of cheese men, maintenance
men (janitors), all chauffeurs, assistants to chauffeurs, mechanics,
tinsmiths, night milk vendors, and commission men, employed at
the Employer's dairy at Santurce, Puerto Rico, excluding all ex-
ecutives, administrative and professional personnel, office clerical
employees, administrative chauffeurs, bottle receivers, temporary
maintenance men, truck washers, guards, and supervisors as
defined in the Act.
8 "Notice to our customers and clients residing in. Rio Piedras and its Suburbs : We wish
to,nlake it known that beginning on the first day of the coming November and until further
notice, due to justified causes not under our control, we will have to suspend our home
delivery service of homogenized milk In the city of Rio Piedras and its suburbs . We wish
to express our profound thanks for the cooperation which we have received and we hope
to be able to serve you again in the future at a date which we will in due time notify you."
Signed, PuERTo RICO . DAIRY, INC.
â 7ioZedo Scale Company, 82 NLRB 826.
30 while it appears that on occasion some commission men hire a helper for various
periods to assist them in the distribution of the Employer 's products or to replace them
temporarily while they are on vacation , we do not regard that factor as sufficient to con-
stitute the commission men as supervisors within the meaning of the Act As It appears
that the helpers are casual employees , we shall not include them in the unit.