Graham Mill & Elevator Co.

National Labor Relations Board - Board Decisions

May 12, 1942

40 N.L.R.B. 1289 (N.L.R.B. 1942)

In the Matter of GRAHAM MILL & ELEVATOR COMPANY and UNITED
GRAIN PROCESSORS, A LOCAL FEDERAL UNION OF THE AMERICAN
FEDERATION OF GRAIN PROCESSORS, AFFILIATED WITII THE AMERICAN
FEDERATION OF LABOR
C, ase No. R-3691-Decided May 12, 1942
Jurisdiction : flour milling and feed manufacturing industry.
Investigation and Certification of Representatives : existence of -question: re-
fusal to accord petitioner recognition; election necessary
Unit Appropriate for Collective Bargaining : all employees, excluding, super-
visory and office employees, chemists, and salesmen ; agreement as to.
Mr. Bliss Daffan, for the Board.
Mr. Melvin F. Adler, of Fort Worth, Tex., for the Company.
Mr. H. A. Schneider, of Oklahoma City, Okla., for the Union.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TILE CASE
Upon petition duly filed by United Grain Processors, a local
Federal Union of the American Federation of Grain Processors,
affiliated with the American Federation of Labor, herein called the
Union, alleging that it question affecting commerce bad arisen con-
cerning the representation of employees of Graham Mill & Elevator
Company, Graham, Texas, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon
due notice before James C. Batten, Trial Examiner. Said hearing
was held at Fort Worth, Texas, on April 2, 1942. The Company
and the Union appeared, participated, and were afforded full oppor-
tunity 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 errors and
are hereby affirmed. On April 20 and 21, 1942, respectively, the
Company and the Union filed briefs which the Board has considered.
On April 24, 1942„the Company filed a reply brief which the Board
has also considered. '
Upon the entire record in the case, the Board makes the following :
40N L.R B, No 228
1289
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Graham Mill & Elevator Company, a Texas corporation with its
principal office at Graham, Texas, is engaged in the business of flour
milling and feed manufacturing. It owns plants at Graham, Jean,
Loving, Jermyn, Megargle, Olney, Seymour, Munday, Goree, Throck-
morton, Clifton, Denton, and Jacksboro, Texas, and operates all but
the last three. During the fiscal year ending June 1, 1941, the Com-
pany used 50,500,000 lbs. of raw materials of an approximate value
of $750,000. Of this amount, 1,468,000 lbs., aggregating $17,923.95
in value, were purchased, and shipped to the Company from out-
side the State of Texas. During the same period, the Company sold
products valued at approximately $1,092,064.27, none of which was
shipped outside the State of Texas.
The Company is one of four Texas corporations engaged in the
grain industry, of which Kay Kimbell is president and W. L. New-
som is secretary-treasurer .2 The other three, Kimbell Milling Com-
pany, Kimbell-Diamond Milling Company, and Texas Milling
Company, all have their offices in Fort Worth, Texas. Kay Kimbell
owns virtually the entire stock in the Kimbell Milling Company.
Through his personal holdings, and the shares which Kimbell Mill-
ing Company holds, he controls the majority of the stock in Kimbell-
Diamond Milling Company. He is also sole trustee of a trust fund
set up for his niece, Kay Carter, by his wife, himself, and Mr. and
Mrs. Coleman Carter, Jr., the parents of Kay Carter. This trust
holds the majority of the shares in the Graham Mill & Elevator
Company and in the Texas Milling Company. Thus, Kimbell is in
a position to control the policies of all four corporations.
The offices of Kay Kimbell, Coleman Carter, Jr., and W. L. New-
som are located in Fort Worth, Texas, where the affairs of all the
corporations are directed and controlled.3 James Thompson, a vice
president of Kimbell-Diamond Milling Company, is general super-
intendent of all the mills of the four corporations, with the exception
of those located in Fort Worth. Thompson is paid by each of the
mills under his supervision by drafts drawn by said mills. He is
accountable to the officers of the corporations in Fort Worth, with
whom he discusses and formulates matters of general policy.
1 TI a Denton plant is leased and operated by Kimbell -Diamond Milling Company, and
the Clifton plant is leased and operated by the Texas Milling Company , both corpora-
tions operating under the same management as the Company . The Jacksboro plant is
leased to the Jacksboro Milling Company , a corporation a majority of whose stock is
owned by the Kay Carter Trust, which trust also owns a majority of the Company's
stock ; this plant is used only as a storage warehouse at present.
2 Coleman Carter , Jr , is vice president of three of the four corporations
, All books and records of the Company are kept at Graham, Texas , with the exceptions
of the secretary 's record and the corporation seal kept at Fort worth.
GRAHAM MILL & ELEVATOR COMPANY 1291
Texas Milling Company operates only the Clifton plant leased
from the Graham Company, where it manufactures flour and feed.
During the fiscal year ending June 1, 1941, this Company purchased
raw materials valued at $676,000, of which $13,000 represented ma-
terials purchased outside Texas, and sold products valued at approxi-
mately $883,155.46, none of which was shipped out of Texas.
Kimbell Milling Company is principally engaged in buying, selling,
and storing grain in elevators located in Texas and Oklahoma. It
also operates a small feed mill and wholesale warehouse for the sale
of flour, feed, and other related products in Fort Worth. During
the above-mentioned fiscal year, this Company purchased raw ma-
terials valued at $4,400,000, of which $1;100,000 represented materials
purchased outside Texas, and sold products valued at approximately
$5,500,000, of which $500,000 represented products shipped out of
Texas.
Kimbell-Diamond Milling Company is engaged in the business of
flour' milling, feed manufacturing, and related lines. It operates
flour and feed mills at Wolfe City and Denton, Texas. During the
above-mentioned fiscal year, this Company purchased raw materials
valued at $1,486,000, of which $148,000 represented materials pur-
chased outside Texas, and sold products valued at approximately
$2,000,000, of which $200,000 represented products shipped out of
Texas.
The Company admits that Kimbell Milling Company and Kimbell-
Diamond Milling Company are engaged in commerce within the
meaning of the Act.
Products manufactured at all the mills of the four corporations
are sold under the trade name of "K-B," under the name of the
producing corporation; and under the names of each of the other
three corporations. Thus, the Company sells products manufactured
by its mills under its own name, under the name "K-B" and other
common trade names, and under the corporate names of the other
three corporations. Kimbell-Diamond Milling Company sells some of
its products outside the State of Texas labelled "Graham Mill &
Elevator Company"; around Opelousas, Louisiana, the order for such
sales is made out in the name of the-Company, but is filled by mills
operated by Kimbell-Diamond Milling Company in bags owned by
the latter.
The Company is thus united with three other corporations in a
single and extensive enterprise involving the purchase, manufac-
ture, and distribution at wholesale,4 of large quantities of flour and
4 One of the principal customers of the products of the four corporations is the Great
Atlantic & Pacific Tea Company. Kimbell-Diamond Milling' Company sells its products
to this Company both in and outside the State of Texas.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feed. As appears from their unified ownership, management, and
control, and from their practice of using interchangeably each other's
names, no one of the four corporations is conducted as a separate
enterprise. Viewed as a single entity, the,Company and its affiliates
are clearly engaged in commerce. A question concerning the repre-
sentation of employees of one of the corporations admits of repercus-
sions among employees of the others, tending to lead to labor disputes
burdening and obstructing commerce, and the free flow of commerce.5
We find that both by virtue 'of the volume of its imports into
Texas,e and by virtue of the degree of its integration in a single
enterprise with its three affiliates, the Company is engaged in com-
merce within the meaning of the National Labor Relations Act.
IT. THE ORGANIZATION INVOL\ ED
United Grain Processors, a local Federal Union of the American
Federation of Grain Processors, affiliated with the American Federa-
tion of Labor, is a labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated that on or about April '17, 1941, the Union
requested the Company to recognize it as the bargaining repre-
sentative of the Company's employees; and that the Union was refused
recognition on the ground that the Company was not engaged in
commerce within the meaning of the Act. A statement of the
Regional Director introduced in evidence at the hearing indicates
that the Union represents a substantial number of employees in the
unit hereinafter found to be appropriate.'
We find that a question, affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
G See National Labor Relations Board v. Schmidt Baking Co , Inc, 122 F . ( 2d) 162, 163
(1941 ) of National Labor Relations Board v Virginia E'cctric cC Power Co ., 115 F (2d)
414, 415-416 (1940 ), affirmed on the jurisdictional point , 62 S Ct 344 (1941).
• 6In its brief, the Company pointed out that imports fiom out of State totalled up to
only a small percentage of the entire amount of raw materials purchased by the Company
It has frequently been held that the proportion of interstate shipments to total shipments
does 'not determine whether commerce would be affected See National Labor Relations
Board v Sabiuban Lnniber Co, 121 F . ( 2d) 829 , 832 (1941 ), cert denied 62 S Ct 364
(1941 ) National Labor Relations Board V Henry Levaar, Inc, 115 F ( 2d) 105 , 107-108
(1941) Southern Coloi , ado Power Co v. National Labor Relations Board , 111 F (2d)
539, 542 ( 1940).
The Regional Director stated that the Union had submitted to him 30 authorization
cards bearing apparently genuine original signatures , of which 28 were signatures of
employees listed on the Company ' s pay roll of April 12 , 1941, which contained names of
approximately 48 employees in the unit agreed upon as appropriate
GRAHAM MILL & ELEVATOR COMPANY 1293'
IV. THE APPROPRIATE UNIT
We find, in accordance with a stipulation of the parties, that all
employees of the Company , excluding supervisory and office em-
ployees, chemists, and salesmen, constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
V. THE I)I:TERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by means 'of an election by secret ballot.
Those eligible to vote shall be the employees in the appropriate unit
who were employed during the pay-roll period immediately pre-
ceding the date of our Direction of Election , subject to the limitations.
and additions set forth therein.
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, 49 Stat. 449, 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 Graham Mill & Elevator Company, Graham, Texas, 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
Sixteenth Region, acting in this matter as agent for the Nationat
Labor Relations Board, and subject to Article III, Section 9, of said
Rules and Regulations, among all employees of the Company in the,
unit found appropriate in Section IV, above, who were employed
during the pay-roll 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 or in the
active military service or training of the United States, or tempo-
rarily laid off, but excluding those employees who have since quit or
been discharged for cause, to determine whether or not they desire
to be represented by United Grain Processors, a local Federal Union
of the American Federation of Grain Processors, affiliated with the,-
American Federation of Labor, for the purposes of collective bar-
gaining.