American Sugar Refining Co.

National Labor Relations Board - Board Decisions

Jan 13, 1938

4 N.L.R.B. 897 (N.L.R.B. 1938)

In the Matter of AMERICAN SUGAR REFINING COMPANY and COMMITTEE
FOR INDUSTRIAL ORGANIZATION
In the Matter of AMERICAN SUGAR REFINING COMPANY and UNITED
SUGAR WORKERS UNION, LOCAL 21023
Cases Nos. R-363 and R-364.-Decided January 13, 1938
Sugar Refining Industry-Investigation of Representatives : controversy con-
cerning representation : rival organizations ; conflicting claims of rival organiza-
tions as to appropriate bargaining unit-Unit Appropriate for Collective Bar-
gaining: production employees excluding longshoremen , guards, and laboratory
workers-Election Ordered
Mr. Samuel M. Spencer, for the Board.
Mr. Abbott Southall, of New York City, for the Company.
Mr. Frank J. Bender, of Baltimore, Md., for the C. I. O.
Mr. Henry A. McFarland, of Philadelphia, Pa., for the Federal
Union.
Mr. O. L. Boni f ay, of Baltimore, Md., for the A. F. of L. and the
I.L.A.
Mr. Henry W. Lehmann, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 14, 1937, the Committee for Industrial Organization,
herein called the C. I. 0., and United Sugar Workers Union, Local
21023, herein called the Federal Union, each filed with the Regional
Director for the Fifth Region (Baltimore, Maryland) a petition
alleging that a question affecting commerce had arisen concerning
the representation of employees of American Sugar Refining Com-
pany, herein called the Company, at its refinery located in Baltimore,
Maryland, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On September 25, 1937, the
Board, acting pursuant to Article III, Section 10 (c) (2), of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
directed that the cases be consolidated for the purposes of a hearing,
897
898 NATIONAL LABOR RELATIONS BOARD
and acting pursuant to Article III, Section 3, of said Rules and Regu-
lations, ordered an investigation and authorized'the Regional Director
to conduct it and to provide for an appropriate hearing upon due
notice.
On October 7, 1937, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, upon the
C. I. 0., and upon the Federal Union. On October 20, 1937, the Re-
gional Director also issued to the International Longshoremen's Asso-
ciation, herein called the I. L. A., and to the Truck Drivers' & Helpers
Union, notices advising both such organizations of their right to
intervene in this case. Pursuant to the notice, a hearing was held on
October 25, 1937, at Baltimore, Maryland, before Leo J. Kriz, the
Trial Examiner duly designated by the Board. The Board and the
Company were both represented by counsel, the C. I. O. by its or-
ganizing director in the State of Maryland, the Federal Union by its
president, and the I. L. A. by one of the organizers of the American
Federation of Labor who is also secretary of Local No. 1503 of the
I. L. A. All participated in the hearing. The Truck Drivers' & Help-
ers Union did not appear. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing the
Trial Examiner made several rulings on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY 1
The Company, a New Jersey corporation, is the largest refiner of
cane sugar in the United States. It is engaged in the refining and
sale of cane sugar of approximately 61 types. The Baltimore plant is
one of the five refineries operated by the Company on the Atlantic sea-
board. The principal raw material used at the Company's Baltimore
refinery is raw sugar. All of the raw sugar comes from outside the
State of Maryland, mostly from Cuba, the Philippine Islands, Hawaii,
and Puerto Rico. The raw materials are shipped to the plant in Bal-
timore by sugar cargo vessels, two of which are owned by a subsidiary
of the Company. More than 50 per cent of the refined sugar is shipped
to points outside the State of Maryland. The sugar is sold through
brokers in the District of Columbia, Delaware, ]Kentucky, Maryland,
North Carolina, Ohio, Tennessee, Virginia, and West Virginia, as
. ' The Company stipulated for the record the facts set forth in this Section.
DECISIONS AND ORDERS 899
well as in other States. Sugars refined at the Baltimore refinery of
the Company require no further finishing processes elsewhere.
The average monthly production of the Baltimore refinery ranges
from approximately 40 to 45 million pounds of sugar. In a peak
month this volume is considerably increased.
II. THE ORGANIZATIONS INVOLVED
The Committee for Industrial Organization is a labor organiza-
tion composed of many national and local unions, including Local In-
dustrial Union No. 276 which admits to its membership all production
employees of the Company, excluding supervisory and clerical
employees.
The United Sugar Workers Union, Local 21023, is a labor organi-
zation affiliated with the 'American Federation of Labor. It admits
to its membership all employees of the Company, excluding office
workers and supervisory employees.
The International Longshoremen's Association is an organization
affiliated with the Ameiican Federation of Labor. It admits to its
membership longshoremen employed by the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The C. I. O. and the Federal Union each claims to represent a
majority of the employees of the Company. Each desires to be
declared the exclusive representative of employees of the Company
at its Baltimore refinery for the purposes of collective bargaining.
We find that a question has arisen concerning representation of
employees of the Company at its refinery ii Baltimore, Maryland.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Federal Union maintains that all employees of the Company
at its Baltimore, Maryland, refinery, exclusive of executives, super-
visory and office workers, constitute a unit appropriate for the pur-
poses of collective bargaining. The C. I. O. contends that there
should be excluded from the unit supervisory and clerical employees,
longshoremen, weighers, checkers, samplers, guards, chauffeurs, and
laboratory workers. The reference in the petition of the Federal
900 NATIONAL LABOR RELATIONS BOARD
Union to office workers and in the petition of the C. I. O. to clerical
employees apparently is to the same employees. The two organiza-
tions, therefore, differ only concerning the exclusion or inclusion of
longshoremen, weighers, checkers, samplers, guards, chauffeurs, and
laboratory workers.
Longshoremen. Testimony offered by the Company indicates that
it employed 67 longshoremen during the week of October 16, 1937.
The Federal Union contends that the longshoremen of the Company
should be included within the bargaining unit since they work as
production workers in the raw sugar sheds of the Company when not
engaged as longshoremen. However, since April 1937, at which time
the I. L. A. began to organize the Company's longshoremen, the prac-
tice of working in the refinery when longshoremen's work was not
available has diminished considerably. At the time of the hearing,
an average of only six longshoremen per day worked in the raw sugar
sheds. The Federal Union also stated that the longshoremen em-
ployed by a sugar refinery in Boston had participated with produc-
tion employees in an election held to choose representatives for the
purposes of collective bargaining.
Other considerations persuade us to the view, however, that the
longshoremen should not be included in the same bargaining unit
with the production employees of the Company. The longshoremen
of the Company are eligible to membership in the I. L. A. and almost
50 per cent of them are members of the I. L. A. The president of
the Federal Union testified that at the time of the hearing no long-
shoremen were members of the Federal Union. The Company pays
the longshoremen $1.05 per hour, which is the I. L. A. scale for
longshoremen in the Baltimore area, whereas the production work-
ers of the Company are paid only 50 or 55 cents per hour.
Upon the basis of all the evidence, we find that the longshoremen
should not be included in the unit.
Weighers.2 The C. I. O. contends that the two weighers em-
ployed by the Company are part of the clerical force and as such
should be excluded from the bargaining unit. Such employees are
paid weekly wages, whereas the production employees are paid on
an hourly basis. The weighers check the results obtained by public
weighers or seller's representatives who weigh the raw sugar when a
cargo arrives at the docks of the Company. In addition to checking
the weights, they record them as well. When there is no ship cargo
which requires weighing and checking, the weighers perform other
duties s\lch as running electric trucks on the dock, and taking slings
of sugar from storage to the place where the sugar bags are cut and
emptied for refining purposes. On occasion, they also do some check
weighing of refined sugar.
9 In the record the weighers care also referred to as check -weighers.
DECISIONS AND ORDERS 901
We feel that, under all the circumstances, the duties and interests
of the weighers are closely related to those of the production workers,
and that the weighers should be included in the bargaining unit.
Checkers. The ten checkers employed by the Company are prin-
cipally engaged in checking outgoing refined sugar. Like the check
weighers, they are paid on a weekly basis. The record does ' not
clearly disclose the nature of their duties. It appears, however, that
they receive shipping papers in accordance with which they make
loadings, and fill in shipping papers. Inasmuch as refined sugar
is continually shipped out, they rarely perform any other duties
than checking the outgoing sugar.
We feel that no sufficient reason has been presented for exclud-
ing the checkers from the bargaining unit and we, therefore, include
them in the unit.
Samplers. The two samplers employed by the Company are paid
on a weekly basis. The record does not clearly describe their duties,
but it appears that among other things they send samples of raw
sugar to laboratories located in New York where the samples are
tested to determine the percentage of sucrose. When not engaged
in the performance of their regular duties, the samplers perform
other duties such as running the electric truck on the dock and mov-
ing slings of sugar.
In the absence of any further evidence, we are not warranted in
excluding the samplers from the unit.
Guards. The Company employs seven uniformed men who are
charged with the duty of protecting its property. It is evident that
these employees are closely associated with the management and that
their interests differ materially from those of the production em-
ployees. In accordance with our decisions in other cases, we find
that the guards should be excluded from the unit.'
Chauffeurs. The Company, employs three chauffeurs whose work
consists of driving trucks outside the Company's property. The,
chauffeurs are paid on a weekly salary basis and receive approxi-
mately the same pay as other chauffeurs or teamsters in the Balti-
more area. It was not shown at the hearing that such employees
are members of the International Brotherhood of Teamsters, Chauf-
feurs, Stablemen and Helpers of America or that they have any other
union affiliation. In the absence of any further evidence, we feel
that the chauffeurs employed by the Company should be included
in the bargaining unit.
Laboratory workers. The Federal Union claims that the four
employees working in the Company's laboratory should be included
' See Matter of R. C. A. Manufacturing Company, Inc., and United Electrical and Radio
Workers of America, 2 N. L. R. B. 159. See also Matter of Bendim Products Corporation
and International Union, United Automobile Workers of America, Bendio Local No. 9,
3 N. L. R. B. 682.
902 NATIONAL LABOR RELATIONS BOARD
within the bargaining unit, while the C. I. O. asserts that they should
be excluded. One worker keeps the laboratory records ; the other
three are routine analysts who make tests during the various stages
in the production of refined sugar. The three employees also at
times make other tests incidental to the operation of the refinery.
All four employees are paid on a weekly salary basis. In so far as
possible, the Company fills vacancies in the laboratory by promoting
refinery employees who possess a high school education. We find
that the qualifications and activities of the laboratory* workers dif-
fer essentially from those of the other workers whom we have in-
eluded in the unit, and such employees should not be included
within the bargaining unit 4
We find that the production employees of the Company, including
weighers, checkers, samplers, and chauffeurs, but excluding long-
shoremen, guards, laboratory workers, and supervisory and clerical
employees, constitute a unit appropriate for the' purposes of collec-
tive bargaining and that said unit will insure to employees of the
Company the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policy of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
Although the Federal Union and the C. I. O. each claims to repre-
sent a majority of the employees of the Company within the appro-
priate unit, neither introduced membership cards or other evidence in
proof of its claim. We find, therefore, that an election by secret
ballot is necessary to determine the proper representatives for collec-
tive bargaining and thus to resolve the question concerning
representation.
Both the C. I. O. and the Federal Union contend that employees of
the Company on its pay roll of August 14, 1937, the date of the filing
of the petitions, should be entitled to vote in the election. The Com-
pany, however, objects for the reason that the number of employees
has been substantially reduced since that time. The superintendent
of the Company stated without contradiction that August 1937 was a
peak production period during which the Company employed between
150 and 175 more employees than at the time of the hearing. It was
further stated that the pay roll of October 16, 1937, containing the
names of 808 employees, was approximately representative of the
number of persons normally employed by the Company. The em-
ployees selected for dismissal after the production peak had passed
were those who had been hired to perform the additional work cre-
ated by increased production, and seniority governed the order of
dismissal.
4 See Matter of Southern Chemical Cotton Company and Textile Workers Organtizing
Committee, 3 N. L. R. B. 839.
DECISIONS AND ORDERS 903
In view of these circumstances, those eligible to vote shall be the
employees in the appropriate unit who were on the Company's pay
roll of October 16, 1937, exclusive of those who since have voluntarily
quit or been discharged for cause.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of American Sugar Refining Company at its
plant in Baltimore, Maryland, within the meaning of Section 9 (c)
and Section 2 (6) and (7) of the National Labor Relations Act.
2. The production employees of American Sugar Refining Com-
pany at its plant in Baltimore, Maryland, including weighers, check-
ers, samplers , and chauffeurs, but excluding longshoremen, guards,
laboratory workers, and supervisory and clerical employees, consti-
tute a unit appropriate for' the purposes of collective bargaining,
within the meaning of section 9 (b) of the National Labor Relations
Act.
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, 49 Stat. 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations-Series 1,
as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with American
Sugar Refining Company, Baltimore, Maryland, an election by secret
ballot shall be conducted within fifteen (15) days from the date of
this Direction, under 'the direction and supervision of the Regional
Director for the Fifth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Section 9,
of said Rules and Regulations, among production employees of
American Sugar Refining Company at its plant in Baltimore, Mary-
land, who were on the Company's pay roll of October 16, 1937, in-
cluding weighers, checkers, samplers, and chauffeurs, but excluding
longshoremen, guards, laboratory workers, supervisory and clerical
employees, and those who since have voluntarily quit or have been
discharged for cause , to determine whether they desire to be repre-
sented by the Committee for Industrial Organization or by United
Sugar Workers Union, Local 21023, affiliated with the American
Federation of Labor, for the purposes of collective bargaining, or
by neither.
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