J. Allen Smith & Co.

National Labor Relations Board - Board Decisions

Jan 14, 1941

28 N.L.R.B. 1233 (N.L.R.B. 1941)

In the Matter of J. ALLEN SMITH & Co. and FLOUR MILL WORKERS
UNION No. 22074, AFFILIATED WITH THE A. F. of L.
In the Matter of J. ALLEN SMITH & Co. and LOCAL #621, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS OF AMERICA (A. F. OF L.)
Cases Nos. R-2198 and R-2199.-Decided January 14,1941
Jurisdiction : flour, meal, and mill feed manufacturing industry.
Investigation and Certification of Representatives : existence of questions: re-
fusal to accord recognition to unions ; elections necessary.
Units Appropriate for Collective Bargaining : (1) production and maintenance
employees, excluding clerical and supervisory employees, and truck drivers and
helpers; and (2) truck drivers and helpers, excluding supervisory employees.
Mr. Robert S. Young and Mr. James E. Atkins, Jr., of Knoxville,
Tenn., for the Company.
Mr. R. 0. Ross, of Knoxville, Tenn., for the Flour Workers Union.
Mr. J. T. Burgess, of Knoxville, Tenn., for the Teamsters.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On November 4, 1940, Flour Mill Workers Union No. 22074, affiliated
with the American Federation of Labor, herein called the Flour Work-
ers Union, and on November 13, 1940, Local #621, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Teamsters, filed with the Regional Direc-
tor for the Tenth Region (Atlanta, Georgia) separate petitions'
alleging, respectively, that a question affecting commerce had arisen
concerning the representation of employees of J. Allen Smith & Co.,
Knoxville, Tennessee, 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.
i On November 25, 1940, the Flour Workers Union filed an amended petition
28 N. L R. B., No. 168.
1233
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 25, 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 in each
case and, authorized the Regional Director to conduct it and to pro-
vide for an appropriate hearing upon due notice. On November 28,
1940, the Board, acting pursuant to Section 9'(c) of the Act, and
Article III, Section 10 (c) (2), of said Rules and Regulations, ordered
that the cases be consolidated.
On December 3, 1940, the Regional Director issued a separate notice
of hearing in each case, copies of which were duly served upon the
Company and, for their respective cases, upon the Flour Workers
Union and the Teamsters. Pursuant to the notices, a hearing was
held at Knoxville, Tennessee, on December 10, 1940, before John C.
McRee, the Trial Examiner duly designated by the Board. The Com-
pany, the Flour Workers Union, and the Teamsters were represented
by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and 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 re-,
viewed 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 make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
J. Allen Smith & Co., a Maine corporation, is engaged in the manu-
facture, sale, and distribution of flour, meal, and mill feed at a plant
in Knoxville, Tennessee. During 1939 the Company purchased raw
materials, consisting principally of wheat and corn, valued at over
$2,000,000, of which more than 70 per cent was obtained outside the
State of Tennessee. During the same period the Company sold fin-
ished products valued at more than $2,000,000, of which more than
60 per cent was sent to points outside the State of Tennessee.
II. THE ORGANIZATIONS INVOLVED
Flour Mill Workers Union No. 22074 is a labor organization affiliated
with the ,American Federation of Labor, admitting to membership
employees of the Company.
Local $621, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor organization affiliated
J. ALLEN SMITH & CO . 1235
with the American Federation of Labor, admitting to membership
truck drivers and helpers employed by the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In October 1940 the Flour Workers Union presented evidence to the
Company of its majority representation and requested the Company
to bargain with it as the exclusive representative of the employees in
an alleged appropriate unit. The Company declined to bargain be-
cause of asserted doubts as to the Flour Workers Union's designation
by a majority of the employees. `
Thereafter in the same month the Teamsters, claiming to represent
a majority of truck drivers and helpers, requested the Company to
bargain with it as their exclusive representative. The Company re-
fused to bargain with the Teamsters unless it produced its authorization
cards.
There were introduced in evidence reports prepared by the Regional
Director tending to show that the Flour Workers Union and the Team-
sters represent, respectively, a substantial number of employees in the
units hereinafter found to be appropriate.2
We find that questions have arisen concerning the representation of
the employees of the Company.
IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON
COMMERCE
We find that the questions concerning representation which have
arisen, occurring in connection with the operations of the Company
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the ° free flow of commerce.
V. THE APPROPRIATE UNITS
The Flour Workers Union alleges in its petition that all production
and maintenance employees of the Company , excluding clerical and
supervisory employees , and truck drivers and helpers , constitute an
appropriate unit. The Teamsters allege in its petition that truck
drivers and helpers constitute an appropriate unit. The Company
made no contention concerning the appropriate units.
2 The Regional Directoi 's reports show that in support of their respective claims the
Flour workers Union produced application cards and an authorization petition signed by
73 employees whose names appear on the Company's pay roll of December 5, 1940, and the
Teamsters produced 12 application cards signed by persons whose names appear on the
above pay roll There are approximately 132 persons in the unit claimed by the Flour
Workers Union to be appropriate , and 16 persons in the unit claimed by the Teamsters.
41359 7 -42-vol 28--79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing the Flour Workers Union and the Company stipu-
lated, and we find, that John S. Keen, J. O. Clevenger, Lyman Witt,
Harry Large, Ernie Hendrix, Bill Clevenger , Sam Cameron, Gene
Johnson, , Bill Ervin, Don Brewer , Frank Edwards , and Bob Shuey
are supervisory employees . We shall exclude them from the pro-
duction and maintenance unit. Questions arose at the hearing as to
classification of Bob Harrell, -N. J. Adams, Clayton Lay, and Hoyle
Cox, whom the Flour Workers Union would exclude from the unit
as supervisory employees . The Company would not agree to these
exclusions.
Harrell and Adams work as checkers on the first - shift under a
foreman. Their duties are to supervise the loading of the railroad
cars according to the purchasers ' orders and to order the truckers to
bring the quantity and quality of flour needed to fill the orders. Each
of these men has a crew of three to five men under him. Harrell and
Adams are paid a minimum weekly salary , while the men under them
are paid by the hour. In the absence of the foreman , Harrell or
Adams acts in his place . The type of work done by Harrell and
Adams and the fact that they receive a weekly wage, as distinguished
from the other employees , sufficiently identifies them with the man-
agement so as to warrant their exclusion from the unit claimed by
the Flour Workers Union. We find that Harrell and Adams are
supervisory employees and as such are to be excluded from the unit.
Lay and Cox work on the second and third shifts, respectively.
Their principal duty which consumes approximately 80 per cent of
their time is to maintain the motors at the plant . The balance of
their time is spent supervising the loading of cars. While Lay
and Cox would report infractions of rules by the loaders , they exercise
no authority and are paid like other production and maintenance
employees at an hourly rate. Since maintenance work is the prin-
cipal work done by Lay and Cox and their supervisory function is
only incidental and relatively slight, we shall include them in the
unit claimed by the Flour Workers Union.
We find that the production and maintenance employees of the
Company, excluding clerical and supervisory employees , and truck
drivers and helpers, constitute a unit appropriate for the purposes
of collective bargaining and that said unit will insure to employees
of the Company the full benefit of their right to self-organization
and to collective bargaining and otherwise effectuate the policies of
the Act.
There was no controversy concerning the establishment of the sep-
arate bargaining unit claimed by the Teamsters. The Company and
the Teamsters agreed, and we find, that Jim Harper, is a supervisory
employee and should be excluded from , the truck drivers' unit. We
i
J. ALLEN SMITH & CO. 1237
find that the truck drivers and helpers employed by the Company,
excluding supervisory employees, constitute a unit appropriate for
the purposes of collective bargaining and that said unit will insure
to employees of the Company the full benefit of their right to self--
organization and to collective bargaining and otherwise effectuate the
policies of the Act.
VI. THE DETERDIINATION OF REPRESENTATIVES
We find that the questions which have arisen concerning the repre-
sentation of employees of the Company can best be resolved by elections
by secret ballot., We shall direct that elections be held (1) among
the production and maintenance employees, and (2) among the truck
drivers and helpers, whose names appear on the pay roll last preceding
the date of this Direction, with the inclusions and exclusions 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 :
CONCLUSION OF LAW
1. Questions affecting commerce have arisen concerning the repre-
sentation of employees of J. Allen Smith & Co., Knoxville, Tennessee,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
2. The production and maintenance employees of the Company, ex-
cluding clerical and supervisory employees, and truck drivers and
helpers, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the National Labor
Relations Act.
3. The truck drivers and helpers of the Company; excluding super-
visory employees, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) 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 Relations Ac,,,
and pursuant to Article III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
3 The Company has not complied with the terms of an Order issued by the Board on
November 1 5, 1940, in the Matter of J. Allen Smith if Company , Inc and Flour Melt ll'orb-
ers Union, Local No. 220 74, 27 N. L. R B , No. 218 Notnithstandmg such non -compliance
the Flour Woibers Unions request an immediate election, stating that the issues in the
abo\e case have no "bearing whatsoever " on the instant proceeding . The Teamsters did
not object to an immediate election and agreed that the pay roll last preceding the date
of the Diiection of Election should be used , to govern eligibility
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with J . Allen Smith & Co., Knoxville, Tennessee, elections 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 Tenth 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 :
(1) All production and maintenance employees who were employed
by the said Company during the pay-roll period last preceding the
date of this direction , including any such employees 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 exclud-
ing clerical and supervisory employees, truck drivers and helpers, and
any employees who have since quit or been discharged for cause, to
determine whether or not they desire to be represented by Flour Mill
Workers Union No. 22074, affiliated with the A. F. of L., for the
purposes of collective bargaining;
(2) All truck drivers and helpers who were employed by the said
Company during . the pay-roll period last preceding the date of this
Direction , including any such employees who did not work during
such pay-roll period because they were ill or on vacation , and em-
ployees who were then or have since been temporarily laid off, but
excluding supervisory employees and any employees who have since
quit or been discharged for cause , to determine whether or not they
desire to be represented by Local #621, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America, affiliated
with the A. F. of L., for the purposes of collective bargaining.
CHAIRMAN HARRY A. MILLIS took no part in the consideration of
the above Decision and Direction of Election.