Mountain States Bean Co.

National Labor Relations Board - Board Decisions

Apr 30, 1956

115 N.L.R.B. 1208 (N.L.R.B. 1956)

1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. These men spend 100 percent of their time in production
work. As the evidence shows that these small departments have a
full-time foreman and as there is no evidence of supervisory authority
on the part of the assistant foremen, they are included.
The remaining 3 assistant foremen work in the following depart-
ments: Machine shop with 20 to 25 employees; machine assembly
which has from 15 to 40 workers; and the night shift of the press de-
partment with 5 to 10 workers. As the evidence shows, and the size of
the group in relation to the supervisory hierarchy indicates, that these
men responsibly direct employees in their respective departments, we
shall exclude them as supervisors.
We find- that the following constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
All production and maintenance employees at the Employer's Min-
neapolis, Minnesota , plant including the inspectors, parts record clerks,
parcel post clerks, parcel post fillers, perpetual inventory clerks, time-
keepers, servicemen, cafeteria employees, charwoman, group leaders,
and temporary employees, but excluding the machinery demonstrators,
the inspector on leave to sales department, office clerical employees,
professional employees, guards, watchmen,-' and all supervisors 6 as
defined in the Act.
[Text of Direction of Election omitted from publication.]
6 As the evidence shows that these men spend at least 25 percent of their time in regu-
lar guards' duties, we find that they are guards within the meaning of the Act and there-
fore exclude them from the unit . See Waiterboro Manufacturing Corporation, 108
NLRB 1383.
O Excluded as supervisors are the following : Assistant foremen in the machine shop,
machine assembly, and night shift of the press department.
Mountain States Bean Company and American Federation of
Grain Millers, AFL-CIO, Petitioner
Mountain States Bean Company and Bobbie Taylor, Petitioner
and Bakery and Confectionery Workers International Union,
Local No. 240, AFL-CIO. , Cases Nos. 30-RC-1095 and 30-RD-57.
April 30,1956
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a hearing was held in these consolidated
cases before F. T. Frisbey, hearing officer. The officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
115 NLRB No. 190.
MOUNTAIN STATES BEAN COMPANY 1209
2. The labor organizations involved claim to represent employees
of the Employer.
3. Bakery and Confectionery Workers International Union, Local
No. 240, AFL-CIO, hereinafter called Local 240, contends that its
contract with the Employer, covering all production employees en-
gaged exclusively in bean packaging, is a bar to an election among
these employees at this time. The other parties do not take any
clear positions. -
On November 12, 1954, the Employer and Local 240 entered into an
agreement ,covering the bean packaging employees.' This contract
provided that it was to be effective from September 20, 1954, through
December 31, 1955, and thereafter from year to year in the absence
of written notice to terminate or change given not less than 60 days
or more than 75 days before any expiration date. By letter dated
October 28, 1955, Local 240 notified the Employer of its intent to
negotiate changes "in the matter of hours, wages and working condi-
tions" of the employees whom it 'represented. Thereafter, the peti-
tions in this proceeding were filed. As Local 240 gave timely notice
of its intent to negotiate changes in the contract and thus forestalled
its automatic renewal, we find that the contract is not a bar to an
election at this time.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. It appears that the Petitioner in Case No. 30-RC-1095, herein=
after called the Grain Millers, primarily seeks a general unit at the
Employer's plant, including employees engaged in packaging beans.
The Grain Millers may, however, be willing to represent a unit which
excludes these packaging employees. Local 240, alleging bargaining
history on a different basis, maintained that the overall unit primarily
sought by the Grain Millers is not appropriate for bargaining pur-
poses, but stated in effect that, if the Board should direct an elec-
tion among employees Dr such a unit, it desired to appear on the
ballot. The Employer indicated its preference for a single, overall
unit, and the Petitioner in Case No. 30-RD-57 took the position that
a unit of packaging employees was appropriate.2
A On June 25, 1952, following a consent election in Case No 10-RC-776 (not reported
in printed Nolunres of Baud Decisions and Orders) the Regional Director certified Local
240 as the exclusive collective-bargaining representative of all production employees at
the I:ioplover's plant engaged in the bean packaging operation Thereafter, the Employer
and Local ?40 entered into contt,ictual relations On November 12, 1954, they executed
their last ugieement, coveting the above employees So far as the record discloses, there
is no Lni they histoi v of collective bai gaunng at the Employer's plant
^ The Gi.uu Jlilleis moved to dismiss the petition in Case No 30-RD-57 on the ground,
among others, that the issues in the latter case would necessarily be resolved by an elec-
tion or elections in the RC case The hearing officer refeired ruling on the motion to
the Board As no useful purpose mould be served in dismissing the decertification peti-
tion under the cu cunistances, the motion is hereby denied,
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer is a Colorado corporation. It is engaged at its three
principal warehouses in Denver, Colorado, in the storage of mer-
chandise and in the packaging of sugar, peas, and dried beans. At
about the time of the hearing, the Employer had, in all, approximately
58 employees, of whom approximately 21 were engaged in packaging
beans. All these employees perform the customary duties of their
respective classifications. The record does not disclose whether or
not 'the Employer departmentalizes its operations. For purposes of
supervision, however, the Employer has a warehouse superintendent,
an assistant warehouse superintendent, and a general maintenance
man, who supervises one mechanic and the packaging employees.
The plantwide unit primarily sought by the Grain Millers may
be appropriate for the purposes of collective bargaining. However,
it is clear that the employees currently represented by Local 240 may
also constitute an appropriate bargaining unit on the basis of the
bargaining history,3 and that the remaining unrepresented employees
may constitute an appropriate bargaining unit on a residual basis.'
We shall therefore make no final unit determination at this time, but
shall direct that the question concerning representation be resolved
by, separate elections by secret ballot among the employees in two
voting groups, consisting of (1) employees engaged in packaging
beans, and (2) the remaining unrepresented employees.
We shall direct separate elections among employees in the follow-
ing groups at the Employer's Denver, Colorado, plant, excluding from
each, office clerical employees, guards, and all supervisors as defined
in the Act :
Group 1: All employees engaged in packaging beans, excluding all
other employees.
Group 2: All other employees.
As both labor organizations appear to have an adequate showing of
-interest among employees in voting group 1, we shall place the names
of both organizations on the ballot in the election among these em-
ployees. As only the Grain Millers appears to have an adequate show-
alllinois City Water Company, 87 NLRB 109 . In the cited case, a majority of the
Board in determining the appropriate unit issue gave full effect to a bargaining history
which consisted of separate units of laborers and of the remaining employees in the plant,
even though the laborers did not have separate supervision or work apart from the other
employees and even though the laborers and the other employees performed similar or
overlapping work The result was predicated on the Board's general reluctance to dis-
turb the contract unit or units established as a result of collective bargaining and its
desire to give recognition and effect to a bargaining history effectively evincing the intent
of the parties which is not repugnant to established policy respecting the composition
and scope of bargaining units We find the position of the bean packaging employees
who comprise a unit certified by the Board to be comparable to that of the laborers which
the Board found to constitute an appropriate unit in the cited case
The General Electric Company (River Works) case, 107 NLRB 70, and the Owen-Illinois
Glass Company case, cited by our dissenting colleagues in support of their position are
distinguishable on the facts
4 Pollock Paper Corporation ( Waterproof-Ohio Division), 115 NLRB 231
MOUNTAIN STATES BEAN COMPANY 1211
ing among employees in voting group 2,5 we shall place only the Grain
Millers' name on the ballot in the election among these employees.
If Local 240 wins the election in group 1, or if the Grain Millers
wins in group 1 or group 2 alone, then the employees in group 1 or 2,
as the case may be, will be taken to have indicated their desire to con-
stitute a separate unit, and the Regional Director conducting the elec-
tions directed herein is hereby instructed to issue a certification of
representatives to the bargaining agent so selected for such separate
unit, which the Board, under such circumstances, finds to be appro-
priate for purposes of collective bargaining.
If, however, the Grain Millers wins the elections in both voting
groups, the employees in these groups will be taken to have indicated
their desire to constitute a single combined unit, and the Regional
Director is instructed to issue a certification of representatives to the'
Grain Millers for such combined unit, including therein the employees
in both group 1 and group 2, which unit the Board, under such circum-
stances, finds to be appropriate.
If neither labor organization wins in either or both of the voting
groups, the Regional Director is instructed to issue a certification
of results of election or elections to such effect.
5. The record indicates that the Employer employs, among others,
both part-time and casual employees. At the hearing, the Employer
offered a stipulation to the effect that, if an election were directed by
the Board, only those employees should be eligible to vote who had
worked at least 400 hours during the 3-month period immediately
preceding the date of the election. The Employer, however, stated
that this stipulation was not to apply, if the Board directed a decerti-
fication election among the employees engaged in packaging beans.
The Grain Millers and Local 240 conditionally accepted this stipula-
tion and the Petitioner in Case No. 30-RD-57 'did not object there-
to. As the Board is in effect directing a decertification election among
the employees engaged in packaging beans, the stipulation, by its
terms, does not apply. However, in accordance with our usual policy,
we shall permit all regular part-time and full-time employees to vote
in the elections directed herein, and we shall not permit casual em-
ployees to vote.
[Text of Direction of Elections omitted from publication.]
MEMBERS PETERSON and MURDOCK, dissenting :
Although we recognize that considerable weight should be given
.to the factor of bargaining history in the Board's unit determinations,
we believe that it is extremely unrealistic to make the presence of that
factor alone completely conclusive where the result may well be to
6 Moreover, Local 240 has expressed no interest in representing a unit of the employees
in group 2, separately.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perpetuate in existence a unit consisting of an arbitrary group of
employees such as the bean packaging employees involved herein.' In
our opinion, to permit the possible continuance of this unit which was
established in 'the 1952 consent election under the circumstances is to
unduly emphasize the importance of bargaining history.'
There can hardly be any question that if the unit placement of the
bean packaging employees had been presented to the Board in the
first instance, they would have been included in the overall production
and maintenance unit. This is where they properly belong and this
is where we would place them. Accordingly, we would direct an elec-
tion only in the overall unit.
0wcns-Illwioic Claus Company. 112 NLRB 1 72. 177
-Cf Cene,al Electric Company (Rivei WoiAs). 107 NLRB 71, 72, wheie the Board
excluded office clencal employees from a production and maintenance unit, despite their
prior inclusion in the unit pursuant to a consent election and bargai ning histoy on that
basis , since their inclusion was repugnant to fundamental Board policy
Red River Broadcasting Co., Inc. and International Alliance of
Theatrical Stage Employees and Moving Picture Machine
Operators of the United States and Canada, AFL-CIO, Peti-
tioner. Case No. 18-RC-2669. April 30, 1956
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
Pursuant to a stipulation for certification upon consent election ap-
proved December 21, 1955, an election by secret ballot was conducted
under the direction and supervision of the Regional Director for the
Eighteenth Region on January 4, 1956, among the employees in the
stipulated unit. Upon the conclusion of the election, a tally of ballots
was furnished the parties in accordance with the Rules and Regulations
of the Board. The tally shows that, of approximately 14 eligible
voters, 7 cast ballots for the Petitioner, none cast ballots for the Inter-
venor,1 and 7 cast ballots against the participating labor organizations.
On January 9, 1956, the Petitioner filed timely objections to conduct
affecting the results of the election and, on January 10, 1956, timely
supplemental objections to such conduct. In accordance with the
Board's Rules and Regulations, the Regional Director caused an in-
vestigation to be made, and on February 29, 1956, issued and duly
served upon the parties a report and recommendation on objections to
election, in which he found certain of the objections to be without
merit and recommended that they be overruled. He further found,
however, that one of the Petitioner's objections had merit and, accord-
ingly, recommended that the objection to such conduct be sustained and
IInternational Brotherhood of Electiieal Workers, Local Union No 31, AFL-CIO
115 NLRB No. 189.