American Tobacco Co., Inc.

National Labor Relations Board - Board Decisions

Jul 10, 1945

62 N.L.R.B. 1239 (N.L.R.B. 1945)

In the Matter of AMERICAN TOBACCO COMPANY, INCORPORATED and
AMERICAN SUPPLIERS, INCORPORATED and LOCAL UNION No. 666,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L.
Case No. 5-R-1848.Decided July 10, 1945
Messrs. J. R. Tucker and Robert G. Cabell, both of Richmond, Va., for
the Companies.
Mr. Lawson Wimberly, of Washington, D. C., and Mr. William F. Pat-
rick, of Richmond, Va., for the IBEW.
Mr. Angelo J. Fiumara, of counsel to the Board.
DECISION
AND
DIRECTION. OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Local Union No. 666, International Broth-
erhood of Electrical Workers, A. F. L., herein called the IBEW, alleging
that a question affecting commerce had arisen concerning the representa-
tion of employees of.American Tobacco Company, Incorporated, Richmond,
Virginia, and American Suppliers, Incorporated,' Richmond, Virginia,
herein separately called American Tobacco and American Suppliers and
collectively called the Companies, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Marvin C. Wahl,
Trial Examiner. Said hearing was held at Richmond, Virginia, on April
16, 1945. The Companies and the IBEW appeared and participated Z All
parties were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues. 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.
1 The formal papers were amended at the hearing to show the names of the Companies as indicated
herein.
s International Association of Machinists, A F. L , was served with notice but failed to intervene
Its representative , however, appeared and testified
62 N. L R. B., No. 165.
1239
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the hearing, the Companies moved, without objection, that certain
corrections be made in the transcript of testimony in this proceeding. The
motion is hereby granted. -
Upon the entire record in the case, the board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
American Tobacco Company, Incorporated, a New Jersey corporation
with its principal office located in New York City, is engaged in the manu-
facture and sale of cigarettes and other tobaccos. We are here concerned
with American Tobacco's operations at its two factories in Richmond,
Virginia, known as the Virginia Branch and the Richmond Branch. Ameri-
can Tobacco purchases approximately 90 percent of its total stock of to-
bacco from American Suppliers, its subsidiary, whose operations are de-
scribed below. During the year 1944, 90 percent of the total production of
American Tobacco at its Richmond and Virginia Branches, exceeding
$50,000 in value, was shipped outside the State of Virginia.
American Suppliers, Incorporated, a Delaware corporation, is a wholly
owned subsidiary of American Tobacco. It purchases, stems, and stores leaf
tobacco before it is processed for mamffacturing. We are here concerned
with its activities at its two plants in Richmond, Virginia, known as the
Richmond Division. During the year 1944, its purchases totaled in excess
of $50,000, approximately 90 percent of which was received from points
outside the State of Virginia. All its sales were made to American Tobacco
Company.
Each of the Companies admits, and we find, that each is engaged in
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Local Union No. 666, International Brotherhood of Electrical Workers,
affiliated with the American Federation of Labor, is a labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Following a cross-check conducted under the supervision of the Board,
the Companies and the International Association of Machinists, A. F. L.,
herein called the IAM, on March 23, 1943, entered into a contract covering
certain employees in the plants here involved to be in effect until December
31, 1943. The recognition clause of the contract states that :
The Companies recognize the above-mentioned Union [JAM] as the
sole and exclusive bargaining agency for Machinists, Machinists'
Helpers, Electricians, Electricians' Helpers, Carpenters, Carpenters'
AMERICAN TOBACCO COMPANY, INCORPORATED 1241
Helpers, Pipe Fitters , Pipe Fitters ' Helpers, their apprentices, Con-
veyor Alen , and Mechanics in the Cutting Room, who are employee
members of Local Lodge No. 10 of the INTERNATIONAL ASSO-
CIATION OF d1ACHINISTS, or who may desire to be repre-
sented by the above -mentioned Union provided any individual enn-
ployee shall have the right at any time to present a grievance to the
Company. ( Italics supplied.)
The contract provided for its automatic renewal for yearly terms , subject
to defeasance upon written notice given by either party 60 days prior to any
expiration date. Neither of the contracting parties gave notice of termina-
tion either in 1943 or 1944. On November 28, 1944 , about 5 weeks before
the expiration date of the contract , the IBEW advised the Companies that
it represented a majority of their electrical workers and requested recogni-
tion as their exclusive bargaining representative . Several weeks later the
Companies refused such recognition , asserting that the existing contract
with the IAM constitutes a bar to this proceeding.
The Companies contend that the contract has been understood and
treated by the parties as one of exclusive recognition and that since neither
contracting party gave notice of termination and inasmuch as the IBEW
failed to give notice to its representation claim prior to the effective date of
the automatic renewal clause , the contract is now extended to December
31, 1945, and constitutes a bar. The IBEW , on the other hand, maintains
that the contract is a "members -only" contract and, therefore , does not
preclude an investigation to determine the exclusive bargaining representa-
tive of the Companies ' electrical workers in an appropriate bargaining unit.
We are unable to agree with the Companies ' position . It is well recog-
nized that the language of the contract itself must first be considered in
determining its construction .' An examination of the contract and particu-
larly the language in the recognition clause itself makes it apparent that
the contract is a "members -only" contract since it is limited in coverage
to those employees who are "employee members of the [IAM] or who
may desire to be represented by the [IAM]." Accordingly, since the con-
tract is a "members -only" contract , we find that the agreement does not
constitute a bar to a present determination of representatives.'
A statement of a Board agent, introduced into evidence at the hearing,
indicates that the IBEW represents a substantial number of employees in
the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning the
a See Matter of Continental Can Company, Inc , 52 N L R B 710
4 See Matter of Continental Can Company, Inc , 52 N L R B 710, see also Matter of Lever
Brothers Company, 57 N. L. R. B 139; Matter of Continental Products, Inc., 36 N L. R. B. 527.
5 The Field Examiner reported that the IBEW submitted seven authorization cards dated Novem-
ber 29, 1944; and that there are approximately nine employees in the alleged appropriate unit
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation of employees of the Companies, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The IBEW seeks a unit composed of all electricians, electricians' helpers,
and apprentices at the Companies' plants involved herein, but excluding
office and clerical employees, working foremen, and any other supervisory
employees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend
such action. The Companies take no position on the unit issue.
As appears hereinabove, both Companies as a single employer have
been dealing with the IAM since 1943 with respect to the employees in the
plants here involved. In addition, we note that the operations of these
Companies are integrated and that American Suppliers is a totally owned
subsidiary of American Tobacco. In view of the foregoing circumstances,
we are of the opinion that American Suppliers and American Tobacco
constitute a single employer within the meaning of Section 2 (2) of the Act.
The Companies use electrical processes in drying tobacco, and engage
the services of electricians in connection with these operations. These elec-
trical workers are admittedly specialists in their field. They also perform
maintenance and installation work for the Companies.
We have previously held that electricians such as those here involved
constitute a well-defined craft group. In addition, it appears that the IAM
has relinquished jurisdiction over the electricians and does not wish or
intend to bargain for them at the present time.
Under all the circumstances, we find that all electricians, electricians'
helpers, and apprentices at the Virginia Branch and Richmond Branch of
American Tobacco and the Richmond Division of American Suppliers, but
excluding office and clerical employees, working foremen, and all or any
other supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.'
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which has
arisen be resolved by an election by secret ballot among the employees in
the appropriate unit who were employed during the pay-roll period imme-
diately preceding the date of the Direction of Election herein, subject to the
limitations and additions set forth in the Direction.'
See Matter of Western Electric Company, Incorporated , 61 N. L R . B; 974.
r The IBEW's request that it be designated on the ballot as "Local Union No 666 , I. B. E. W.,"
is hereby referred to the Regional Director for determination.
AMERICAN TOBACCO COMPANY, INCORPORATED 1243
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 Relations Board
Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with American Tobacco Company.
Incorporated, Richmond, Virginia, and American Suppliers, Incorporated,
Richmond, Virginia, an election by secret ballot shall be conducted as early
as possible, but not later than thirty (30) clays from the date of this Direc-
tion, under the direction and supervision of the Regional Director for the
Fifth Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Sections 10 and 11, of said Rules
and Regulations, among the employees in the unit found appropriate in
Section IV, above, who were employed during the pay-roll period imme-
diately preceding the date of 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, to determine whether
or not they desire to be represented by Local Union No. 666, International
Brotherhood of Electrical Workers, affiliated with the American Federa-
tion of Labor, for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above Deci-
sion and Direction of Election.