Capital City Products Co.

National Labor Relations Board - Board Decisions

Jan 14, 1941

28 N.L.R.B. 1249 (N.L.R.B. 1941)

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In the Matter Of CAPITAL CITY PRODUCTS COMPANY and JOINT COUNCIL
OF INTERNATIONAL UNION OF OPERATING ENGINEERS AND INTERNA-
TIONAL BROTHERHOOD OF FIREMEN & OILERS
Case No. R-210-5.-Decided January 14, 1941
Jurisdiction : food products manufacturing industry. , '
Investigation and Certification of Representatives : existence of question : re-
fusal to accord recognition to union ; union which did not claim to represent
any employees in the appropriate unit, excluded from ballot ; election necessary.
Unit Appropriate for Collective Bargaining : all engineers, firemen, oilers, and
maintenance men in the Company's powerhouse, excluding the chief engineer.
Mr. John A. Connor and Mr. Charles E. Connor, Jr., of Columbus,
Ohio, for the Company.
Mr. H. A. Plank, of Toledo, Ohio, for the Joint Council.
Mr. Joseph R. Dixon, of Columbus, Ohio, for the Association.
Mr. Norman M. Neel, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 16, 1940, Joint Council of International Union of Oper-
ating Engineers, Local 89 and International Brotherhood of Firemen
and Oilers, Local No. 935, herein called the Joint Council, filed with
the Regional Director for the Ninth Region (Cincinnati, Ohio) a peti-
tion alleging that a question affecting commerce had arisen concerning
the representation of employees of Capital City Products Company,
Columbus, Ohio, herein called the Company, and requesting an inves-
tigation and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
On October 3, 1940, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3, of National Labor Relations Board Rules and Regulations-
Series 2, as amended, ordered an investigation and directed the Re-
gional Director to conduct it and to provide for an appropriate hearing
upon due notice.
On October 4, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Joint Council,
2S N L. R. B, No 170.
1249
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Food Workers, affiliated with the Congress of Industrial Or-
ganizations, and Food Workers Association, herein called the Asso-
ciation, a labor organization claiming to represent employees directly
affected by the investigation. Pursuant to the notice, a hearing was
held on October 14, 1940, at Columbus, Ohio, before Mary Telker, the
Trial Examiner duly designated by the Board. The Company, by its
counsel, and the Jbint Council and the Association, by their repre-
sentatives, participated in the hearing. 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 motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The rulings are hereby affirmed.
On October 25, 1940, the Company filed a brief which the Board has
considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT,
1. THE BUSINESS OF THE COMPANY
Capital City Products Company is a Delaware corporation licensed
to conduct its business in the State of Ohio, owning and operating a
plant in Columbus, Ohio. It is engaged in the manufacture, sale, and
distribution of margarine, salad oils, and other food products. The
principal raw materials used by the Company at its Columbus plant are
crude cocoanut oil, crude palm kernel oil, crude soy bean oil, crude
corn oil, and crude peanut oil. During the period from January 1,
1940, to October 1, 1940, the Company purchased raw materials for use
at its Columbus plant in the approximate value of $4,131,142. Approx-
imately 87 per cent of the raw materials purchased during this period
were purchased in States other than the State of Ohio and shipped to
the Company's plant at Columbus, Ohio.
- During the period from January 1, 1940, to October 1, 1940, the
approximate value of the finished products shipped by the Company
was $7,993,993. - Approximately 85 per cent of the finished products
shipped during that period were shipped from the Company's plant
in Columbus, Ohio, to customers in States other than the State of Ohio.
The Company concedes that it is engaged in interstate commerce
within the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local No. 89 and
International Brotherhood of Firemen and Oilers, Local No. 935 are
CAPITAL CITY PRODUCTS COMPANY 1251
labor organizations, affiliated with the American Federation of Labor.
They compose the Joint Council, a labor organization affiliated with
the American Federation of Labor. The Joint Council, through its
constituent organizations, admits to membership engineers, oilers, fire-
men, and maintenance men in the Company's powerhouse..
Food Workers Association is an unaffiliated labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 25, 1940, the Joint Council requested recognition as bar-
gaining representative in a unit consisting of the • powerhouse em-
ployees. The Company refused to recognize it because of the existence
of a contract with the Association. The contract does not provide for
exclusive recognition and it is terminable at will.
At the hearing there was adduced in evidence a statement of the
Regional Director showing a substantial membership in the Joint
Council.f '
We find that a question has arisen concerning the representation of
employees of the Company.
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 commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Joint Council desires a unit composed of the employees in the
powerhouse. The Association and the Company contend that this
unit is inappropriate.
Although the functions of the powerhouse are interrelated with the
functions of the other divisions of the Company, powerhouse em-
ployees, except for those engaged in maintenance, are more skilled
and receive higher pay than the other employees. Some powerhouse
employees are licensed by the State. The contract between the Com-
pany and the Association does not provide for exclusive 'recognition
and does not purport to establish- any appropriate unit. The power-
' The unit sought by the Joint Council contains 16 persons There were submitted to
the Regional Director 13 applications for membership in the Joint Council, the signatures
on 12 of which appeared to be genuine and oiiginal Eleven of the 12 appear on the
Company's September 1940 pay roll for the powerhouse.
413597-42-vol 2S-SO
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house employees have abandoned the Association . Shortly before the
hearing in this case the Regional Director informed the Association
of the Joint Council 's petition herein and of its allegation that the
Association might be interested in this proceeding , and asked the Asso-
ciation "whether you in any way desireto oppose it ." The Association
replied that it had no members among the powerhouse employees, and
that it did not "claim to represent any of the power plant employees
for the purpose of collective bargaining with respect to -rates of pay,
wages, hours of service or other conditions of employment ." Under
these circumstances , we find that this group constitutes an appropriate
unit.
The Joint Council and the Company are in accord with respect to
the propriety of excluding the chief engineer , in charge of the power=
house, from the appropriate unit. ,
We find that all engineers , firemen, oilers , and maintenance men in
the Company 's Columbus , Ohio, powerhouse , excluding the chief engi-
neer, constitute a unit appropriate for the purposes of collective bar-
gaining and that said unit will insure to the employees of the Company
the full benefit of their right to self -organization and to collective bar-
gaining and otherwise effectuate the policies of the" Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation can best be re--
solved by an election by secret ballot. ' We shall direct that such an
election be held. Since the Association does not claim to represent any
employees in the appropriate unit, we shall not place its name on the
ballot. We shall direct that all employees in the appropriate unit
whose names appear on the Company 's pay roll immediately preceding
our Direction of Election, including employees who did not work
during such pay-roll period because they were ill or on vacation, and
employees who were then or have since been temporarily laid off, but
excluding those who have since quit or been discharged for cause, shall
be eligible to vote.
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 Capital City Products Company, Columbus,
Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. All engineers, firemen, oilers, and maintenance men in the Com-
pany's Columbus, Ohio, powerhouse , excluding the chief engineer,
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CAPITAL CITY PRODUCTS COMPANY 1253
constitute 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, and pursuant to Article III, Section 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation ordered by the Board to
ascertain representatives for the purposes of collective bargaining with
Capital City Products Company, Columbus, Ohio, an election 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
supervision of the Regional Director for the Ninth Region, acting in
this matter as agent for the National Labor Relations Board and sub-
ject to Article III, Section 9, of said Rules and Regulations, among all
engineers, firemen, oilers, and maintenance men in the Company's
Columbus, Ohio, powerhouse, excluding the chief engineer, whose
names appear on the Company's pay roll for the period immediately
preceding the date of this Direction of Election, including employees
who did not work during such pay-roll period because they were ill
or on vacation and employees who were then or have since been tem-
porarily laid off, }but excluding all persons who have quit or been
discharged for cause since that date, to determine whether or not they
desire to be represented by Joint Council of International Union of
Operating Engineers, Local 89 and International Brotherhood of
Firemen and Oilers, Local No. 935, for the purposes of collective
bargaining.
MR. EDWIN S. SMITH, dissenting :
The Association's letter to the Regional Director does not preclude it
from claiming, as it now does, that the powerhouse unit is inappropri-
ate. The Association and its predecessor, although not obtaining ex-
clusive recognition, have bargained with the Company on a plant-wide
basis. For these reasons and for the further reasons stated in my dis
senting opinion in Matter of Allis-Chalmers Manufacturing Com-
pany 2 and in subsequent cases I would not permit the employees in
the power plant to set themselves apart in a bargaining unit separate
from the industrial unit.
=Matter of Allis-Chalmers Manufacturing Company and International Union, United
Automobile Workers of Amenica, Local 2$8, 4 N. L R B, 175.