Liggett & Myers Tobacco Co.

National Labor Relations Board - Board Decisions

Jul 11, 1947

74 N.L.R.B. 513 (N.L.R.B. 1947)

In the Matter of LIGGETT & MYERS TOBACCO COMPANY, EMPLOYER and
FOOD, TOBACCO, AGRICULTURAL AND ALLIED `VORHERS UNION OF
AMERICA, CIO, PETITIONER
Case No. 9-R-2544.-Decided July 11, 1947
Messrs. John L. Davis and tiVilliamz H. Townsend, both of Lexing-
ton, Ky., for the Employer.
Mr. Reuel Stanfield, of Lexington, Ky., for the Petitioner.
Mr. Leonard M. Brin, of Louisville, Ky., and Mr. Fred Crews, of
Lexington, Ky., for the AFL. ,
Mr. Harry TV. Clayton, Jr., of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
Upon a petition duly filed, the National Labor Rallations Board,
on January 31, 1947, conducted a prehearing election pursuant to
Section 203.49 of the Board's Rules and Regulations among the em-
ployees in the alleged appropriate unit, to determine whether or not
they desired to be represented by the Petitioner or by the Intervenor
for the purposes of collective bargaining, or by neither.
At the close of the election, a Tally of Ballots was furnished the
parties. The Tally reveals that there were approximately 800 1 eligi-
ble voters, that 4 ballots were void, that 383 valid ballots were counted
of which 142 were for the Petitioner, 234 for the Intervenor, and 7
against either, and that 48 ballots were challenged.
Thereafter, a hearing was held at Lexington, Kentucky, on March
21, 1947, before William O. Murdock, hearing officer. The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
'Although there were 800 eligible voters on the eligibility date, January 7, 1947, the
number of employees who quit or were discharged between that date and the date of
election , January 31, 1947, reduced this figure to 630.
74 N. L. R. B., No. 94.
513
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Liggett & Myers Tobacco Company, a New Jersey corporation, is
principally engaged in the purchasing, processing, and selling of to-
bacco and tobacco products. At its Lexington, Kentucky, operations,
the only ones involved in this proceeding, the Employer is engaged
in buying, redrying, packing, storing, and shipping green leaf- and
redried tobacco. The tobacco purchased by the Employer comes prin-
cipally from the growing centers in the Burley Belt, comprising eight
states, and will exceed an annual value of $500,000. The annual value
of tobacco shipped from the Employer's operations at Lexington, Ken-
tucky, will exceed $1,000,000, of which more than 75 percent will be
shipped to points outside the State of Kentucky.
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress.
of Industrial Organizations, claiming to represent employees of the
Employer.
Tobacco Workers International Union, herein called the Intervenor,
is a labor organization affiliated with the American Federation of
Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On October 24,1946, prior to the commencement of the season, which
extends from the 1st of December to the 1st of March, the Employer
and the Intervenor executed a contract. At that time, there were but
37 employees in the unit set forth in the contract. On November 15,
1946, the Petitioner wrote a letter to the Employer informing it that
the Petitioner represented a substantial number of employees and re-
questing that no agreement be signed until after a Board-conducted
election. The Employer did not reply to the Petitioner, but informed
the Board's Regional Office that it had an existing contract with the
Intervenor. The petition herein was filed January 10, 1947.
The Employer and the Intervenor urge that a determination of
representatives is barred by the existing contract. Inasmuch as the
LIGGETT & MYERS TOBACCO COMPANY 515
election has been held and the Intervenor, the contracting union, has
received a majority of the votes cast therein, and in view of our dis-
position hereinafter of the Petitioner's objections to the conduct of
the, election, we believe that it is unnecessary to proceed to a deter-
mination of this issue.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner urges that all production and maintenance employees
at the Employer's Lexington, Kentucky, operations should be included
in the appropriate unit and that office, clerical, and supervisory em-
ployees should be excluded. The Employer contends generally that
the unit should be the same as described in its contract with the Inter-
venor? Specifically, the Employer and Intervenor would exclude
watchmen, chauffeurs, truck drivers, and coopers; the Petitioner would
include them.
The agreement entered into by the Employer and the Intervenor
on October 24, 1946, was the first contract covering the employees at
the Employer's Lexington operations, and had been in existence only
3 months and 1 week on the date of the election, January 31,,194i.
In view of this short contractual period we are of the opinion that
there has been no conclusive history of collective bargaining and, there-
fore, we do not accord it controlling weight in the determination of
the appropriate unit in this case.,'
Watchmen: The Employer at its Lexington operations employs 18
watchmen the year around. They are neither armed nor uniformed.
The watchmen punch clocks oil a regular route, and their duties are
principally to protect the Employer's property against fire. Inasmuch
as their duties are not of a monitorial nature, we shall include watch-
men in the unit.
Truck drivel's and chauffeurs: There are five truck drivers and one
chauffeur. The truck drivers haul tobacco from the warehouse to the
Employer's plant where it is redried, packed in hogsheads, and then
hauled by the drivers to storage. The chauffeur is engaged in driving
2 The agreement of October 24, 1946, between the Employer and the Intervenor described
the unit as, "all emplo3ees working with or handling leaf tobacco and other employees
classed as tobacco workers by the Company, excluding all clerical and supervisory
employees, watchmen, coopers, chauffeurs, and other employees agreed upon by the
Company and the Union at the Company's plant in Lexington, Kentucky "
3 See Matter of C. G. Cross and Stella Cross, Co-partners, 67 N L. R. B. 1005; Matter
of George IV. Prescott Publssliang Company, Inc. (Qutincy Patrtiot-Ledger), 64 N. L. R. B.
1390: Matter of Auto Interurban Company, 73 N L It. B. 214.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duties which are not a part of the production process. We are of the
opinion that the interests and duties of these employees differ sub-
stantially from those of the other employees; we shall exclude them
from the unit.,
Coopers: The coopers are highly skilled craftsmen who construct
hogsheads or casks for the packing of tobacco. As craftsmen, the
Board has held that coopers may constitute a separate appropriate
unit for bargaining purposes or may be included in a broader unit of
production and maintenance employees.' However, no union is here
seeking to represent them in a separate craft unit, and therefore we
shall include them in the plant-wide unit requested herein 6
We find that all production and maintenance employees including
watchmen and coopers but excluding chauffeurs, truck drivers, office
and clerical employees, and all or any other supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Petitioner objects to the conduct of the election on t'he' ground
that the Employer did not operate its night shift on the day of the
election, in consequence of which many of the night shift employees,
among whom the Petitioner allegedly maintains its principal inem-
bership, were precluded from voting because they lived some distance
from Lexington. The record does not show, however, that a substan-
tial number of night shift employees lived outside Lexington, or
that the closing of the night shift prevented such employees from
participating in the election. Moreover, the evidence reveals that
the night shift was closed at the request of many of the employees
on that shift, and that a majority of them voted in the election."
We are of the opinion, therefore, that the Petitioner was not preju-
diced by the closing of the night shift on the day of the election, and
accordingly find that its objection is without merit.
The results of the election held prior to the hearing show that the
Intervenor has secured a majority of the valid votes cast and that
4 See Matter of Deeco Company , 71 N L R B. 692, and Matter of American Laundry
Machinery Company, 66 N. L R B. 1292
See Matter of Swift and Company, 59 N L R B 1417.
"The Employer stated at the hearing that it intends using patented hogsheads and,
consequently , in the future will not employ coopers.
" Approximately 55 percent of the night-shift and 70 percent of the day-shift employees
cast ballots , a total of approximately 63 percent of the eligible voters on both shifts
LIGGETT & MYERS TOBACCO COMPANY 517
neither the number of challenged ballots nor the disposition herein
of the disputed employee categories is sufficient to affect the result
of the election. Under these circumstances, we shall not direct that
the challenged ballots be opened and counted, but instead we shall
certify the Intervenor as the collective bargaining representative of
the employees in the unit found appropriate.
CERTIFICATION OF REPRESENTATIVES
IT is HEREBY CERTIFIED that the Tobacco Workers International
Union, AFL, has been designated and selected by a majority of all
production and maintenance employees of Liggett & Myers Tobacco
Company at its Lexington, Kentucky, operations, including watchmen
and coopers but excluding chauffeurs, truck drivers, office and clerical
employees, and all or any other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, as their
representative for the purposes of collective bargaining, and that
pursuant to Section 9 (a) of the Act, the said organization is the ex-
clusive representative of all such employees for the purpose of collec-
tive bargaining with respect to rates of pay, wages, hours of employ,
ment, and other conditions of employment.