Colonial Sugars Co.

National Labor Relations Board - Board Decisions

Mar 4, 1942

39 N.L.R.B. 417 (N.L.R.B. 1942)

In the Matter of COLONIAL SUGARS COMPANY, GRAMERCY REFINERY
and UNITED 'SUGAR WORKERS LOCAL INDUSTRIAL UNION, AFFILIATED
WITH CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. R-3492.-Decided March 4, 1942
Jurisdiction : sugar refining industry.
Investigation and Certification of Representatives : existence of question : refusal
to bargain with the union until the Board certified that the union was duly
designated by a majority of its employees in an appropriate collective bargain-
ing unit; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance em-
ployees, including weighers in the wash plant, liquor runners in the char
house, defecator men in the defecator house, sugar boilers on the pan floor,
drum men in the granulators, production clerks in the packing department,
the bag clerk in the packing department, checkers in the shipping department,
clerks in the materials and supplies storeroom, and dynamo operators in the
electrical department, but excluding employees listed as foremen and assistant
foremen on the Company's "Classification of Employees", deputies, deputized
watchmen, assistant chemists, bench chemists, yardmen working as domestics,
employees of the Company store, employees who work exclusively in connec-
tion with the swimming pool of the Company, sack sewers who are temporarily
employed by the Company, extra raw sugar stackers, the warehouseman in
the shipping department, the checker in the river loading department, shift
checkers in the shipping department, house engineers in the engineering
department-process, river pump men, and water purification plant employees.
Mr. Charles Payne Fenner, Jr., of New Orleans, La., for the
Company.
Mr. John Bouche, of New Orleans, La., for the Union.
Mr. George A. Koplow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 12, 1941, United Sugar Workers Local Industrial
Union,' affiliated with Congress of Industrial Organizations, herein
'The Union was. so described in the petition The record, however, shows that the
local involved is Local Industrial Union, No . 1167, which was chartered on November
25, 1941.
39 N. L. It. B., No. 75.
417
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Union, filed with the Regional Director for the Fifteenth
Region (New Orleans, Louisiana), a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Colonial Sugars Company, at its Gramercy, Louisiana,
refinery, herein called the Company, and requesting an. investigation,
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On January 19, 1942, 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 January 23, 1942, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
the Union. , Pursuant to notice, a hearing was held on February 2,
1942, at New Orleans, Louisiana, before C. Paul Barker, the Trial
Examiner duly designated by the Chief Trial Examiner. The Com-
pany and the Union appeared by counsel or their representatives and
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
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.
Upon the entire record in the case, the Board makes the-following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Colonial Sugars Company, a subsidiary of The Cuban-American
Sugar Company, of New York, is a New Jersey corporation engaged
in the operation of a sugar refinery at Gramercy, Louisiana. The
raw materials used in the operation of the refinery consist of centrif-
ugal sugars, of which, in the last 6 months of 1941, approximately
5 percent came from the State of Louisiana and the balance from
outside the United States, largely from Cuba. The finished products
of the Company consist of refined sugars and final blackstrap molasses.
The average capacity of the refinery is approximately 320 million
pounds of sugar annually. During the last 6 months of 1941 approxi-
mately 94 percent of the finished products were shipped outside the
State of Louisiana. The Company does not contest the Board's
jurisdiction.
` COLONIAL SUGARS COMPANY" 419
-II. THE ORGANIZATION INVOLVED
United Sugar Workers Local Industrial, Union, No. 1167, affiliated
with Congress of Industrial Organizations, is, a labor organization
admitting to membership employees of the Company.
III. THE , QUESTION CONCERNING REPRESENTATION
The Company will not bargain with the Union until the Board
certifies that the Union was duly designated by a majority of its
employees in an appropriate collective bargaining unit.
A statement by the Regional Director introduced into evidence
shows that the Union represents a' substantial number of employees
in the collective bargaining unit hereinafter found 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
between the United States and foreign countries, and tends to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE APPROPRIATE UNIT
The parties agree that the unit appropriate for the purposes of
collective bargaining should consist of all production and maintenance
employees of the Company, excluding clerical and -supervisory em-
ployees. The Union defines a supervisor as one who has the authority
to hire and discharge employees; and defines a clerical employee as
an office worker and not a plant clerical employee. The Company, on
the other hand, defines a supervisor as one who performs supervisory
dutes, whether or not he has the authority to hire and discharge,
and defines a clerical employee as one who does clerical work, whether
2 The Regional Director stated that the Union had submitted to him 345 applications
for membership , of which 336 were dated between July 1, 1941 and January 31, 1942,
and the remaining 9 were dated 1941, with no day or month given. Three hundred
seventeen of the 345 applications bore apparently genuine original signatures of persons
whose names were on the Company' s pay roll of November 21, 1941. The remaining 28
applications bore apparently genuine original signatures , but due to the fact that they
contained no pay-roll number or contained a number not corresponding with that on
the pay roll itself, they wen not checked to determine if they were listed on the pay roll
of November 21, 1941. On this pay, roll there were approximately 700 employees in
the unit hereinafter found to be appropriate,
420 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
in the office or in the plant.- In addition, the Company contends
that employees in the water plant are in a different category from
the production and maintenance employees, and should be excluded
from the appropriate unit, while the Union contends that they should
be included. These differences lead to a dispute among the parties
over some 14 categories of employees, discussed below.
The Company submitted a list entitled "Classification of Em-
ployees," setting forth the categories of -employees constituting a
normal working force. The parties stipulated, and we find, that the
following employees, should be excluded from the unit : All em-
ployees listed on the "Classification" as foremen and assistant
foremen,' deputies,, deputized watchmen, assistant chemists, bench
chemists, yardmen working as domestics, employees - of the Com-
pany store, employees who work exclusively in connection with the
swimming pool of the Company, sack sewers temporarily employed
by the Company, and extra raw-sugar stackers 4
The parties disagree on the following classifications of, employees,
the Union contending in each case that they should be included in
the appropriate unit, and the Company contending that they should
be excluded.
A. Weighers in the wash plant
There are 3 weighers in the wash plant, paid an hourly wage of
41 cents. They weigh all incoming sugar and perform all clerical
work in connection therewith. They are responsible to the assistant
superintendent of the plant rather than to the foreman of the wash
plant, and the more experienced among them occasionally act as
foremen of the wash plant when necessary. On the other hand, the
foreman of the wash plant keeps track of their working time, and
they are paid only for the time 'they actually work, instead of being
paid "running time," like regular foremen.5 While it appears that
they perform no manual labor, we nevertheless consider their work
as part of the process of production and shall include them-in the
appropriate unit.
3It was stipulated that employees so designated on this "Classification " have authority
to hire and discharge.
4 Both parties agreed at the hearing that if a raw -sugar stacker ' s name appears on
the Company 's pay roll for six or more consecutive pay-roll periods he is -no longer to
be considered an extra raw-sugar stacker , but is to be included in the appropriate unit. We
adopt this definition.
5 Regular foremen and certain other employees are paid "running time ." That is, they
are listed on the pay roll at an hourly rate , but are paid for 40 hours each week, even
if the plant works less than that time or they are not present all the time the plant
is in operation . The regular foremen , with one exception , are paid from 50 to 86 cents per
hour, with most of them receiving approximately 57 cents
COLONIAL SUGARS COMPANY 421
B. Liquor runners in the char house
There are 3 liquor runners in the char house paid an hourly wage
of 381/2 cents. Their duties are to see that the various kinds of liquor
flowing from the char filters are distributed properly to various
parts of the char house, following the controls given them by the
laboratory. They are paid running time, like regular foremen,, are
in charge of 3 or 4 men, who work on the floor with them, and act
as foremen of the char house' when the regular foreman is ill or
away. On the other hand, they work in the char house and, like
other employees in this department, are responsible to the foreman
of the char house. Their hourly rate is approximately the same
as that of other ordinary employees in the department, whereas the
regular foreman is paid 60 cents per hour. We find that the liquor
runners are not supervisory or clerical employees, and shall include
them in the appropriate unit. -
C. De f ecator men in the defecator house
There are 3 defecator men, paid an hourly rate of 41 cents. They
have charge of the defecator house and the 7 other employees working
there, since there is no foreman in this department. Their duties
are to direct the outflowing liquors from the defecators into various
canals, and to fill out daily reports on operations, including the
operations of the other employees in the defecator house. They are
not paid running time, are themselves answerable to the char house
foreman, and have the "power to recommend their helpers" to the
char house foreman, although the record does not show what effect
such a recommendation would have. We find- that they are not
supervisory or clerical employees, and shall include them in the
appropriate unit.
D. Sugar boilers on the pan /door
There are 6 sugar boilers, paid an hourly rate of 60 and 65 cents.
They work on the pan floor, with no.foreman over them, and are
responsible directly to the assistant superintendent. If one of the 3
"watchers",on the pan floor were not cooperating with the boilers
they could lay him off and discuss the matter with the management
later. They are paid-running time. While their work is highly
skilled, it is a necessary part of the production process, their duties
being to see that, the sugar comes out of the vacuum pan in the
proper form as to size, hardness, and character of grain, and density
422 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
of massecuite. We find that they are not supervisory or clerical
employees, and shall include them in the appropriate unit.'
E. Drum men in the granulators
There are 3 drum men, paid an hourly rate of 41 cents. They
are in direct charge of drying and checking the sugar, with several
35-cents-an-hour men' under them. The record does not reveal
whether they actually hire and discharge these men, although the
manager of the refinery testified that if one was not doing his work
accurately the drum men could discharge him and, in all likelihood
would be sustained by the management. The drum men are not
paid running time, and the foreman of'the packing department keeps
track' of their,working time. We find that they are not supervisory
or clerical employees, and shall include them. in the appropriate unit.
F. Production clerks in the packing department
There are 3 production clerks, paid an hourly, rate of 41 cents.
They work in the packing department, reweighing all refined sugar
coming from the packing department before it goes to-the warehouse,
checking as to weight, grade, and number and kind of packages.
If the variance is too great they send the sugar back to the, packing
department. They keep certain'records and make a recapitulation
at the end of the day. The packing department foreman keeps a
record of their working time, but they are responsible only to the
assistant superintendent for the character of their work. We do not
believe that the nature of their duties so differentiates them from
the production and maintenance employees that they should be ex-
eluded. We shall therefore include them in the appropriate unit.
G. Bag clerk in the packing department 7
There is one bag clerk, paid an hourly rate of 41 cents. He is
listed with the packing-department employees but spends approxi-
mately half his time in the office. He is responsible only to the
office, and is described as- having "full responsibility of the receipt,
storage, and disbursement of refined sugar packages." His duties
° See Matter of Godchaux Sugars , Inc and Sugar Workers' Union No. 21934 , affiliated
with the American Federation of Labor, 26'N . L. It. B. 33 , in which we included sugar
boilers , despite the fact that the only union taking a position on them requested their
exclusion , and Matter of Godchaux Sugars, Inc and United Sugar Workers , Local 1124,
af]lltiated with Congress of Industrial Organizations , 36 N L R B 926 , \in which
we included sugar boilers as stipulated by the parties.
7 This employee was referred to in the record by various other names . By stipulation
dated February 12, 1942 , the parties agreed to change his designation to "bag clerk in
the packing department,"
COLONIAL SUGARS COMPANY 423
include checking the receipt of all packages against invoices, taking
samples to see that they meet specifications, supervising the delivery
of packages from the bag room to the granulator department, and
making a daily check of packages filled against those given out
on requisitions. We are of the opinion that his duties do, not suffi-
ciently differentiate the .bag clerk from the production and main-
tenance employees, and we shall therefore include him in the appro-
priate unit.
H. Warehouseman in the skipping department
There is one warehouseman, paid an hourly rate ` of 47 cents.
He is ' listed with the shipping department employees but is re-
sponsible only to the office. His duties include auditing the ship-
ping and packing departments by counting the sugar in the ware-
house each day and checking it against production and shipment.
He also checks production of molasses and has full supervisory
authority, with power to hire and discharge, over intermittent crews
loading molasses. He. is paid running time. We find his duties
to be such as to place him in the class of supervisory and clerical
employees and shall exclude him from the appropriate unit.
I. Checkers in the shipping department
There are 3 checkers in the shipping department, paid an hourly
rate of 41 cents. They check all shipments of refined sugar as
they go to the transportation units, against copies of the orders.
They also supervise the arrangement of packages in the cars, record
the details concerning the shipments, and, together with the shipping-
department foreman, sign certifications of the shipments. They
perform similar duties with respect to shipments of bags and'scrap.
They are not paid running time and are responsible to the shipping-
department foreman. We find that they, are not supervisory or
clerical employees, and "shall include them in the appropriate unit.
J.' Checker, in the river-loading department
There is oi}e checker in the river-loading department, paid an
hourly. rate of 41 cents. His duties appear, to be quite similar to
those of the checkers in the shipping department, except that he
checks shipments and keeps records of 'refined sugar being loaded
into barges on the river. However, the record shows that in addi-
tion, the checker in the river-loading department is the •foreman,
with full authority to hire and discharge the members of the crew
of approximately 8 laborers who unload the trucks whenever sugar
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is shipped by barge. For this reason we consider the checker in
the river-loading department a supervisory employee and shall ex-
clude him from the appropriate unit.
K. Shift checkers in the shipping department
There are 3 shift checkers in they shipping department, paid an
hourly rate of 45 cents. They work on rotating shifts, each man
spending 2 weeks out of every 6 on the day shift, when his duties
are identical with those of the checkers listed in Section "I", above.
However, each shift checker spends 4 out of 6 weeks on the other
shifts, and during that time is in full charge of the warehouse and
shipping department with approximately 12 men under him., Dur-
-irig these 4 weeks he has the regular duties of the foreman, keeps
his own time and that of the men under him, and has the authority
to hire and discharge. We find that the shift checkers are super-
visory employees and shall therefore exclude them from the
appropriate unit.
L. Clerks in the materials and supplies storeroom
There are 2 employees listed as clerks in the materials and sup-
plies storeroom, paid an hourly rate of 371/2 cents. One of the two
performs manual labor, doing the sorting and handling of the ma-
terials and supplies, is not paid running time, and admittedly be-
longs in the unit. The only dispute is as to the other employee,
who gives out materials on requisitions, records them as they are
given out, and fills out reports regarding the materials. While he
is paid running time,, his hourly rate, 371/2 cents, is the same as the
other storeroom employee. We find that. he is not sufficiently dis-
tinguishable from regular production and maintenance employees,
and shall therefore include both clerks in the appropriate unit.
M. House engineers in the engineering department-process
There are 4 house engineers, paid an hourly rate of 561/2 cents.
They supervise the mechanical side of the refinery's operations, tak-
ing care of all breakdowns: They are assisted by other employees
in the engineering department-process, and keep their own time and
that of the men under them. They,are responsible only to the man-
agement on the night shifts, and to the assistant engineer of the
entire plant on the day shift. They are paid running time. We,
find that the house engineers are not properly part of a unit of non-
supervisory production and maintenance employees, and shall
therefore exclude them. '
COLONIAL SUGARS COMPANY 425
N. River pump men and water-purification plant employees
There are 4 river pump men and 4 water-purification plant em-
ployees, each paid an hourly rate of 35 cents. The Company con-
tends that the water plant is an entirely separate operation from the
refinery, and that employees in the water plant should be excluded
for that reason. The water plant is located across the street from
the refinery office, 75 percent of its production is used by the re-
finery, and its employees are hired and paid by the Company. On
the other hand, it is the sole source of water supply for the com-
munities,in the neighborhood, has to be kept operating whether or not
the refinery operates, and is under the partial direction of the State
Board of Health. We find that the water-plant employees are not
properly a part of a unit consisting of the refinery's production and
maintenance employees, and shall therefore exclude them.
We find tFiat all production and maintenance employees of the
Company, including weighers in the wash plant, liquor runners in
the char house, defecator- men in the defecator house, sugar boilers
on the pan floor, drum men in the granulators, production clerks in
the packing department, the bag clerk in the packing department,
checkers in the shipping department, clerks in the materials and sup-
plies storeroom, and dynamo operators in the electrical department,'
but excluding employees listed as foremen and assistant foremen on
the Company's "Classification of Employees," deputies, deputized
watchmen, assistant chemists, bench chemists, yardmen working as
domestics, employees of the Company store, employees who work
exclusively in connection with the swimming pool,of the Company,
sack sewers who are temporarily employed by the Company, extra
raw-sugar 'stackers, the warehouseman in the shipping department,
the checker in the river-loading department, shift checkers in the
shipping department, house engineers in the engineering department-
process, river pump men, and water purification plant employees,
constitute a unit appropriate for the purposes of collective bargain-
ing, and that said unit will insure to employees of the Company the
full benefit of their right to self-organization and to collective bar-,
gaining, and otherwise will effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by, secret ballot.
The Company requested that an election should not take place'
before April 1, 1942, because the present national emergency makes
g There was some dispute between the parties, early in the hearing, as to whether
dynamo operators in the electrical department should be included or excluded. They later
stipulated , and we hereby find, that they should be, included.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the future prospects of the sugar industry uncertain, and because
by April 1942 the industry may have adjusted itself to whatever
new conditions may prevail. The Union contended that an election
should be held as soon as possible, since the refinery is admittedly
operating in a normal way at the present time. The Company con-
tended that the pay roll-to be used in determining eligibility to vote
in the election should be one dated not earlier than April 1, 1942,
while the Union desired a pay roll dated during February 1942.
Under the circumstances, we see no reason for departing from our
customary procedure. " We shall direct that an election be held
within thirty (30) days from the date of our Direction of Election,
and that the employees eligible to vote in such election shall be
those in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of our Direction of 'Election,
subject to the limitations and additions set forth in the Direction.
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 rep-
resentation of employees of Colonial Sugars Company, at its Gra-
mercy, Louisiana, refinery, within the meaning of Section 2 (6) and,
(7) of the National Labor Relations Act.
-2. All production and maintenance employees of the Company,
including weighers in the wash plant, liquor runners in the char
house, defecator men in the defecator house, sugar boilers on the
pan floor, drum men in the.granulators, production' clerks in the
packing department, the bag clerk in the packing department, checkers
in the shipping department, clerks in the materials and supplies
storeroom, and dynamo operators in the electrical department, but
excluding employees listed as foremen and assistant foremen on the
Company's."Classification of Employees," deputies, deputized watch-
men, assistant chemists, bench chemists, yardmen working as domes-
tics, employees of the Company store, employees who work exclu-'
sively in connection with the swimming pool of the Company, sack
sewers who are temporarily, employed by the Company, extra raw
sugar stackers, the warehouseman in the shipping department, the
checker in the river-loading department, shift checkers in the ship-
• ping department, house engineers in the engineering department-
process, river pump men, and water-purification plant employees,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the National Labor Relations
Act.
COLONIAL SUGARS COMPANY 427
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 Rela-
tions 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 ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Colonial Sugars Company, at its Gramercy, Louisiana, refinery,
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
of Election, under the direction and supervision of the Regional
Director for the Fifteenth 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 all production and
maintenance employees of the Company who were employed during
the pay-roll period immediately preceding the date of this Direction,
including weighers in the wash plant, liquor runners in the char
house, defecator men in the defecator house, sugar 'boilers on the
pan floor, drum men in the granulators, production clerks in the
packing department, the bag clerk in the packing department, checkers
in the shipping department, clerks in the materials and supplies
storeroom, dynamo operators in the electrical department, and em-
ployees who did'not work during such pay-roll period because they.
were ill or on vacation or in the active military service or training of
the United States, or temporarily laid off, but excluding employees
listed as foremen and assistant foremen on the Company's "Classi-
fication of Employees," deputies, deputized watchmen, assistant chem-
ists, bench chemists, yardmen working as domestics, employees of
the Company store, employees who work exclusively in connection
with the swimming pool of the Company, sack sewers who are tem-
porarily employed by the Company, extra raw-sugar stackers, the
warehouseman in the shipping department, the checker in the river-
loading department, shift checkers in the shipping department, house
engineers in the engineering department-process, river pump men,
water-purification plant employees, and employees who have since
quit or been discharged for cause, to determine whether or not
they desire to be represented by United Sugar Workers, Local In-
dustrial Union, No. 1167, affiliated with Congress of Industrial
Organizations, for the purposes of collective bargaining.
CHAIRMAN MILLIs took no part in the consideration of the above
Decision and Direction of Election.