Capitol Milling Co.

National Labor Relations Board - Board Decisions

Jan 13, 1941

28 N.L.R.B. 1221 (N.L.R.B. 1941)

In .the Matter of CAPITOL MILLING COMPANY and AMERICAN FEDERA-
TION OF LABOR
Ca-se No. R-2148.-Decided January 13, 1941
Jurisdiction : grain milling industry.
Investigation and Certification of Representatives : existence of question: Com-
pany refuses to giant recognition to union until it could furnish evidence
that it represented a majority of its employees; elections necessary.
Unit Appropriate for Collective Bargaining
"Where all parties ace in agreement as to an industrial unit and the only
issue is the exclusion or inclusion of truck drivers, and where the factors
are such that the truck drivers, may constitute a separate appropriate unit
or be merged in the broader unit, the Board ordered a separate election
for the truck drivers to determine whether or not they desire to be repre-
sented by the union which seeks their inclusion in the broad unit. If the
truck drivers select the same representative as the other employees they
will together constitute part of the industrial unit. If'they choose different
representatives they will constitute a separate appropriate unit.
Loeb & Loeb, by Mr. Norman Newmark, of Los Angeles, Calif.,-
for the Company.
Mr. A. H. Petersen, of Los Angeles, Calif., for Local 21830.
Mr. Francis Byrne, of Los Angeles, Calif., for I. L. W. U.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On August 26, 1940, American Federation of Labor, on behalf of
Local 21830, Flour, Feed & Cereal Workers, herein called Local 21830,
filed with the Regional Director for the Twenty-first Region (Los
Angeles, California) a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of Cap-
itol Milling Company,' Los Angeles. California, herein called the
Company, and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the National Labor Rela-
Incorrectly designated in the formal papers as Capital Milling Company. This aas
corrected by stipulation at the hearing
28 N L R B, No 166
1221
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Act, 49 Stat. 449, herein called the Act. On October 17, 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 authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On October 21, 1940, the Regional Director issued a notice of her-
in g, copies of which were duly served upon the Company, Local
21830, and International Longshoremen's and Warehousemen's Union,
Local 1-26, herein called the I. L. W. U., a labor organization claim-
ing to represent employees directly affected by the investigation.
Pursuant to notice, a hearing was'held on October 31 and November
7 and 8, 1940, at Los Angeles, California, before W. G. Stuart Sher-
man, the Trial Examiner duly designated by the Board. The Com-
pany was represented by counsel, Local 21830 and I: L. W. U. by their
representatives; all participated in the hearing. At the commence-
ment of the hearing the Trial Examiner granted a motion to inter-
vene filed by I. L. W. U. Full opportunity to be heard, to examine
and cross examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties. At the close of the hearing, coun-
sel for the Company moved to dismiss the petition on the ground that
there is no evidence showing that the Company is subject to the
jurisdiction of the Act. The Trial Examiner reserved ruling thereon.
The motion is hereby denied. During the course of the hearing, the
Trial Examiner made several rulings on other motions and on ob-
jections to the admission of evidence. The Board has reviewed all
the rulings of the Trial Examiner 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
I. THE BUSINESS OF THE COMPANY
Capitol Milling Company is a California corporation with its
principal office and plant, at Los Angeles, California, where it is en-
gaged in the business of milling and processing flour, cereals, grain,
and poultry and animal -feeds. During 1939 the Company purchased
raw materials valued at approximately $876,740, approximately 18.2
per cent of which were purchased- by the Company from points out-
side the State of California, and approximately 40.6 per cent of which
were purchased by the Company in the State of California but "prob-
ably originated" outside the State of California. During this same
period the Company sold finished products valued in excess of
CAPITOL MILLING, COMPANY 1223
$1,100,000, all of which were shipped by it to points inside the State
of California.
II. THE ORGANIZATIONS INVOLVED
Local 21830, Flour, Feed & Cereal Workers, is a labor organization
affiliated with': the,,American-Federation of Labor. It admits to mem-
' bership all production and maintenance employees of the Company,
excluding truck drivers, officers, salesmen, and supervisors.
International Longshoremen's and Warehousemen's Union, Local
1-26, is a labor organization affiliated with the Congress of Industrial
Organizations. It admits to membership all production and main.
tenance employees of the Company, including truck drivers, but ex
eluding officers, salesmen, and supervisors.
III. THE QUESTION CONCERNING REPRESENTATION
Local 21830 has requested the Company to bargain with it for
employees of the Company who are members of Local 21830. The
Company replied that it. would not grant recognition to Local 21830
until it could furnish evidence that it represented a, majority of its
employees. A statement of the Regional Director introduced in evi-
dence at the hearing shows that Local 21830 and I. L. W. U. each
represent a substantial number of employees in the unit alleged by
each to be appropriate.2
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
Both labor organizations and the Company are agreed that the
appropriate unit properly includes all- production and maintenance
employees of the Company, other than truck drivers, and excluding
f The Regional Director 's statement shows that 15 employees on the Company 's pay roll
of August 26, 1940, have signed application cards in Local 21830 and that 35 employees
on this pay roll have signed application cards in the I. L. W. U. There are approximately
45 employees on this pay roll.
1224- ' DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
officer personnel, salesmen,} and -super-visors.( -The sole dispute cola
terns the status of the six truck drivers employed by the Company,,
Local 21830 desiring their- exclusion from the unit, and,the Company
and the I. L. W. U. their inclusion. ' ,
In the fall of 1937 the Company and Local "21830 entered into an
exclusive bargaining contract to run for a period of 1 year. This,
contract did not cover the truck driver's. At the ekpir^itiori of this
contract the Company ant' the I. L. W. U. entered into 'a 1-year
exclusive bargaining contract. This contract specifically included
the truck drivers. The truck drivers are not eligible for membership
in Local 21830 but are eligible for membership in the I. L. W. U.
Under the circumstances of this case we find that all production
and maintenance employees of the Company, excluding officer per-
sonnel, salesmen, and supervisors, may properly constitute an appro-
priate unit, with or without' inclusion of the truck drivers, and that
the truck drivers may properly constitute a separate appropriate
unit or be merged in- the larger production and maintenance unit.
We shall accordingly order that separate elections be held : one
among the production and maintenance employees of the Company,
excluding the truck drivers, to determine whether they desire to be
repeesented by Local 21830, by the I. L. W. U., or by neither, and
the other among the 'truck drivers of the Company to determine
whether or not they desire to be represented by the I. L. W. U. On
the results of the elections will depend the appropriate unit or units.
If the production and maintenance employees and the truck drivers
select the same representative they will together constitute an ap-
propriate unit. If they choose different representatives they will
constitute separate appropriate units.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation of the em-
ployees of the Company can best be resolved by means of elections
by secret ballot, one to be conducted among the production and main-
tenance employees, and the other among the truck drivers, as above
set forth.
We shall direct that persons who were employed by the Company
during the pay-roll period immediately preceding the date of this
Direction of Elections, including any who did not work during such
pay-roll period because they were ill or on vacation, and any 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 in the elections.
CAPITOL MILLING COMPANY , ', ( 1225
Upon• the,basis of. the above-findings of fact and upon: the' entire,
record in the case, the Board makes the following:,
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the repre-
sentation of employees of Capitol Milling ; Company; Los Angeles,
California, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act. , -
DIRECTION OF ELECTIONS
By virtue of 'and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National. Labor Re-'
lations Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Capitol Milling Company, Los Angeles, California, elections
by secret ballot shall be conducted as early as possible bu', not later
than thirty (30) days from the date of this Direction, under the
direction and supervision of the Regional Director for the Twenty-
first 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 :
1. Among all production and maintenance employees of the Com-
pany who were employed during the pay-roll period immediately
preceding the date of this Direction, 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 truck drivers, officer personnel, salesmen, su-
pervisors, and employees who have since quit or been discharged for
cause, to determine whether they desire to be represented by Local
21830, Flour, Feed & Cereal Workers, affiliated with the American
Federation of Labor, or by International Longshoremen's and Ware-
housemen's Union, Local 1-26, affiliated with the Congress of Indus-
trial Organizations, for the purposes of collective bargaining, or by
neither; and
2. Among all truck drivers of the Company who were employed
during the pay-roll period immediately preceding the date of this,
Direction, 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
1226 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
supervisory employees and employees who have since quit or been
discharged-for cause, -to -determine whether or not they desire to be
represented by International Longshoremen's and Warehousemen's
Union, Local 1-26, affiliated with the Congress of Industrial Organi-
zations for the purposes of collective bargaining.
MR. EnwiN S. SmITH, dissenting :
I dissent from the decision to hold a separate election among the
truck drivers.3 The record affords no evidence of any desire or at-
tempt upon their part to organize or bargain separately, and no labor
organization seeks so to represent them. Moreover the most recent
collective bargaining agreement between the Company and a labor
organization shows the truck drivers to have, been bargained for
within the industrial unit.
8 See my dissent in Matter of Allis-Chalmers Manufacturing Company and International
anion, United Automobile Workers of America, Local 248, 4 N. L. R. B. 159.