Kansas Milling Co.

National Labor Relations Board - Board Decisions

Sep 2, 1939

15 N.L.R.B. 71 (N.L.R.B. 1939)

In the Matter of KANSAS. MILLING COMPANY and FLOUR, FEED, SEED,
CEREAL & ELEVATOR WORKERS UNION, No . 20991, A. F. of L.
Case No. B-1439.-Decided September 0, 1939
Grain Processing awd Dulling Industry-Investigation of Representatives:
controversy concerning representation of employees : employer refuses to
recognize union in the absence of an election-Unit Appropriate for Collective
Bargaini,ng : production and maintenance employees excluding executive and
supervisory employees , office workers , and chemists ; production workers with
some supervisory duties included-Representatives : proof of choice: elimina-
tion of disagreement between company and sole union involved to insure
satisfactory negotiations requires an election-Election Ordered
Mr. Henry H. Foster, Jr., for the Board.
Mr. Robert C. Foulston, Mr. George Sie f kin, and Mr. George B.
Powers, of Wichita., Kans., for the Company.
Mr. Earl Dietz, of Oklahoma City, Okla., for the Union.
Mr. William T. Little, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On February 15, 1939, Flour, Feed, Seed, Cereal & Elevator
Workers Union, No. 20991, A. F. of L., herein called the Union, filed
with the Regional Director for the Seventeenth Region (Kansas City,
Missouri) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Kansas Milling
Company, Wichita, Kansas, herein called the Company,. and request-
ing 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 May 23, 1939, 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 l., as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing on due notice.
15 N. L. It. B., No. 13.
71
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 1, 1939, the Acting Regional Director issued a notice of
hearing, copies of which were duly served on the Company and the
Union. The Company thereafter filed an answer to the petition and
a "Petition for Election." Pursuant to the notice, a hearing was held
at Wichita, Kansas, on July 13, 14, 15, 1939, before William P. Webb,
the Trial Examiner duly designated by the Board. The Board and
the Company were represented by counsel, the Union by the district
vice president of National Council of Grain Processors, with which
the Union is affiliated, and all participated in the hearing. Full op-
portunity 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 July 21, 1939, the Company filed a request for an oral
argument before the Board. Pursuant to notice duly served upon
all the parties, oral argument was held before the Board at Wash-
ington, D. C., on August 3, 1939. Only the Company appeared and
participated in the oral argument.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Kansas Milling Company, a Kansas corporation with its principal
place of business in Wichita, Kansas, is engaged in the business of
processing and milling grain for human and animal consumption.
The Company's mill has a capacity of 4,000 barrels per day and in
1938 produced approximately 500,000 barrels of flour. A substantial
amount of the grain used by the Company is purchased outside
Kansas, and over 90 per cent of its products are shipped outside the
State. The Company admits that it is engaged in commerce among
the several States within the meaning of Section 2 (6) and (7) of the
Act.
H. THE ORGANIZATION INVOLVED
The Union is a labor organization affiliated with the American
Federation of Labor and the National Council of Grain Processors.
It admits to membership all employees of the Company except execu-
tives, superintendents, office employees, and chemists.
III. THE QUESTION CONCERNING REPRESENTATION
Early in 1939, a committee of the Union called on Jackman, vice
president, treasurer, and general manager of the Company, claimed
KANSAS MILLING COMPANY 73
to represent a majority of employees in an appropriate unit, and
requested recognition as the bargaining agent of such employees.
The Company refused to recognize the Union as the bargaining agent
of the employees in the absence of an election.
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION ON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company de-
scribed in Section I above, has a close, intimate, and substantial rela-
tion 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 Union claims that all production workers in and around the
mill, excluding executives, superintendents, office workers, chemists,
and supervisory employees not engaged in productive work, constitute
an appropriate unit. It is apparent from the record that the Union
used the term "production workers" so as to include in its meaning
maintenance workers:
The Company claims that employees of the malt plant should
be excluded from the unit. The malt plant is located in a build-
ing adjoining that of the Company's elevator and mills. Although
the production of malt is a separate and distinct business from, and
not an adjunct to, the production of flour, the Union admits to
membership the employees in the malt plant and has extended its
organizational efforts to them. We shall include the employees of
the malt plant in the appropriate unit.' -
The Company asks that 15 of its 151 employees be excluded as
supervisory employees having the power either to hire and discharge
or to recommend hiring and discharging. The Union conceded the
propriety of excluding seven, but insisted that the remaining eight
engaged in sufficient productive, as distinguished from supervisory,
work to be included with the other production workers.
B. M. Finley devotes half his time to non-supervisory maintenance
work at Wichita and the other half to keeping the Company's feeder
elevators, which are located in various parts of Kansas and Okla-
homa, in repair. In the latter capacity he does most of the work
himself, but may and sometimes does take someone from the Wichita
3 Cf. Matter of Borum and Pease Company and United Paper Workers Local Industrial
Union #292, Affliiafed with the Committee for Industrial Organization, 7 N. L. R . B. 486.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant or hire someone on the spot to help him. In such event, he
supervises the work of the men working for him and may dis-
charge those he hires. J. B. Scholl works in the elevator at Wichita.
When the elevator superintendent is present, Scholl performs ordi-
nary non-supervisory work, but in the absence of the superintendent,
Scholl acts as superintendent, supervises the work of the others, and
has authority to hire and discharge. There was no showing of the
amount of time the superintendent is absent. In the absence of such
a showing, we assume that Scholl infrequently exercises supervisory
powers. Thus both Scholl and Finley would appear to devote the
greater portion of their time to ordinary productive functions. We
shall include them in the unit.
P. L. Chapman is in charge of the malt plant. He has four men
working under him and he does the same type of work as his sub-
ordinates. J. A. Olmstead, H. Kin.sel, and C. F. Young are second
millers and as such, each is in charge of a shift of about six men.
In addition to their supervisory functions, the extent of which is in
dispute, they set the milling machinery and see that the wheat is
properly mixed and the flour properly milled. H. E. Growthe is
denominated as an assistant mill superintendent or head miller. He
takes the place of either the mill superintendent or the second miller,
and at the time of the hearing was replacing a second miller. He
testified that he did whatever "productive work" is necessary to keep
the mill going in addition to his supervisory duties. Although it
was testified that these men have authority to hire and discharge or
recommend hiring and discharging, the record shows that, in prac-
tice, most of them do not use that prerogative; they also engage in
ordinary production work in addition to their supervisory duties
and, as such, greatly resemble working foremen whom we have
included in other cases.2 The only Union involved, to which they
all belong, asks their inclusion. We shall include them in the appro-
priate unit. - -
R. C. Meredith, the head packer, is in charge of 14 men. His
function is to see that the flour is put in the right sacks, is properly
packed and weighed, and he has the power to hire and discharge.
The general supervisory character of his work, the number of men
under his supervision, and his power to hire and discharge require
that he be excluded from the unit.
Accordingly, the term "supervisory employees" as used in defining
the appropriate unit includes Meredith, but not Finley, Scholl, Chap-
man, Olmstead, Kinzel, Young, and Growthe.
'Matter of Lidz Brothers , Incorporated and United Wholesale Employees , ( Local No.
65), 5 N. L. R. B. 757; Matter of North Star Specialty Company and International Asso-
ciation of Machinists, Local 382, 5 N . L. R. B. 763.
KANSAS MILLING COMPANY 75.
We find that all production and maintenance employees of the
Company, excluding executive and supervisory employees, office
workers, and chemists, constitute a unit appropriate for the purpose
of collective bargaining and that said unit will insure to employees
of the Company the full benefit of their right of self-organization
and to collective bargaining and otherwise effectuate the policies of
the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing, the Union offered evidence in support of its claim
that the majority of the employees in the appropriate unit had
designated it as their bargaining agent. It requests certification on
the proof offered. In accordance with the policy announced in
Matter of The Cudahy Packing Company and Matter of Armour d
Company, however, we shall direct. that an election by secret ballot
be held.8
We find that those eligible to vote in the election shall be the
employees in the appropriate unit during the last pay-roll period
next 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 tempo-
rarily laid off, but excluding those who have since quit or been dis-
charged for cause.
On the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS or LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Kansas Milling Company, Wichita, Kan-
sas, 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,
excluding executive and supervisory employees, office workers, and
chemists constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the National
Labor Relations Act.
8 Matter of Armour ct Company and United Packinghouse Workers, Local Industrial
Union No. 13, Packinghouse Workers Organizing Committee, affiliated with the 0. I. 0.,
13 N. L. R. B. 567; Matter of The Cudahy Packing Company and United. Packinghouse
Workers of America , Local No. 21, affiliated with the C. 1. 0., 13 N. L . R. B. 526.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargain-
ing with the Kansas Milling Company, Wichita, Kansas, an election
by secret ballot shall be conducted within fifteen (15) days from
the date of this Direction, under the direction and supervision of
the Regional Director for the Seventeenth 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
the production and maintenance employees of said Company who
were employed during the pay-roll period next 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 temporarily laid
off, but excluding executive and supervisory employees, office work-
ers, and chemists, and excluding also those who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented by Flour, Feed, Seed, Cereal and Elevator Workers
Union, No. 20991, A. F. of L., for the purposes of collective
bargaining.