Shawnee Milling Co.

National Labor Relations Board - Board Decisions

Sep 17, 1942

44 N.L.R.B. 73 (N.L.R.B. 1942)

In the Matter of SIIAWNEE MILLING COMPANY and UNITED GRIN
PROCESSORS , AFFIL. AMERICAN FEDERATION OF GRA IN PROCESSORS,
AFFIL. A. F. OF L.
Case No. R-4104.Decided September 17, 19412
Jurisdiction : flour'and feed manufacturing industry.
Investigation and Certification of Representatives : existence of question: fail-
ure of union representative to prove authority; election necessary.
Unit Appropriate for Collective Bargaining : production and maintenance unit
specified employees holding lead-men positions excluded; chemist excluded
as technical employee; students working during vacations excluded as tem-
porary employees ; wheat men nicluded as production employees.
Practice and Procedure : motion of Company to dismiss union's petition on
the ground that it had been filed prematurely since the- union had not shown
the Company the names or the number of employees it purported to represent,
denied, since'it is not necessary that a request to bargain collectively be made
and refused, or that a labor organization show the employer the names of
its members.
-
Abernathy cC Abernathy, by Mr. Kenneth. Abernathy, of Shawnee,
Okla., for the Company.,
Mr. H. A. Schnieder, of Oklahoma City, Okla., for the Union.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
' STATEMENT OF TIIE CASE
Upon petition duly filed by United Grain Processors, affiliated with
American Federation of Grain Processors, affiliated with the A. F. of
L., herein called the Union, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Shaw-
nee Milling Company, Shawnee, Oklahoma, herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before E. P. Davis, Trail Examiner.
Said hearing was held at Shawnee, Oklahoma, on -August 3, 1942.
The Company and the Union: appeared, participated, and were af-
44N.L R B, No 12
73
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forded full opportunity 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 error
and are, hereby affirmed.
At the hearing the Company filed an objection to jurisdiction and
moved that the Union's petition be dismissed on the ground that it
had been filed prematurely since the Union had not shown the Com-
pany the names or the number of employees it purported to represent.
In view of our findings of fact in Section III, infra, the Company's
objection to jurisdiction is overruled and its motion to dismiss is
denied.
On August 31, 1942, the Company filed a brief which the Board has
,considered.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Shawnee Milling Company, an Oklahoma corporation, maintains
its principal office and place of business in Shawnee, Oklahoma, where
it is engaged in the manufacture, sale, and distribution of flour, corn
meal, dairy feed, poultry feed, and related products. The principal
raw material used by the Company is wheat. During the year 1941
and the first 6 months of 1942, the Company purchased 2,000,000
bushels of wheat, of which approximately 15 percent was purchased
outside the State of Oklahoma. During the same period, the Com-
pany sold and distributed approximately 50 percent of its products to,
points outside the State of Oklahoma.
II. THE ORGANIZATION INVOLVED
United Grain Processors is a labor organization affiliated with the
American Federation of Grain Processors, which in turn is affiliated
with the American Federation of Labor. It admits to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 28 or 29, 1942, H. A. Schnieder, vice president of the Union,,
met with Leslie A. Ford, the vice president of the, Company, and
claimed that the Union represented a majority of the Company's em-
ployees. Ford testified on direct examination that at the meeting
Schnieder was asked for proof that the Union represented a majority
of the "Company's employees, and that Schnieder 'refused to give any
SHAWNEE MILLING COMPANY - 75
proof or to show any credentials. On cross-examination, Ford ad-
mitted that lie did not ask for Schnieder's credentials at the meeting.
Schnieder's version of the meeting was that no question was raised as
to whether or not the Union represented a majority of the employees,
but that he simply outlined three possible plans of certification, and
Ford was unable to -agree to any plan, but said that he would 'take the
matter under advisement. Schnieder then filed the petition in this
proceeding.
A question concerning representation arises when the Board finds
that a representation proceeding will serve to remove obstacles to
collective bargaining arising from -doubt or disagreement as to the
representative entitled to bargain for the'employees in an appropriate
unit.' It is not necessary that a request to bargain collectively be
made and refused.' It suffices, for example, that, as in this proceed-
ing, the 'employer evinces some doubt as to whether a labor organi-
zation does represent a majority.3 Nor is the labor organization
required to show to the employer the names of its members.4
A statement of a Field Examiner of the Board, introduced in evi-
dence at the hearing, indicates that the Union represents a substan=
tial number of employees in the unit hereinafter found appropriate.'
- We -find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union requested a unit of all employees of the Company,
exclusive of supervision, second millers, foremen, office employees,
and salesmen. The parties agreed to exclude as supervisory em-
ployees, the officers of the Company, Dan Bartlett, general super-
intendent of the mill, Clarence Buxton, elevator foreman, and T. H.
Gasaway, truck foreman. The sole dispute between the parties over
the appropriate unit concerned other specified employees sought to
be excluded from the unit by the Union as supervisory employees.
' See Sixth Annual Report of the National Labor Relations Board, p 55.
2 See Matter of Granite Finishing Works of Proxinuty Mfg. Company and Textile Work-
els Organi-mg Committee, 7 N L R B 364, and Matter of National Weaving Company
and Textile Workers Organizing Committee , 7 N L R. B 916 , where the Board denied
motions to dismiss which alleged that the petitions had been filed prematurely because
no demand on the Company had been made
8 Matter of The Raleigh Hotel Company and Hotel and Restaurant Employees Alliance,
Local No 80 , 7 N. L R B 353.
4 Matter of Samson Tire and Rubber Corporation and United Rubber Workers of America,
Local No 44, 2 N. L R B 148
' The Field Examiner stated that the Union submitted to him 50 authorization cards,
all bearing apparently genuine original signatures , and that 48 of the signatures were
names of persons whose names appeared on the Company's pay roll for the period ending
June 15, 1942, which listed the names of 95 employees in the unit , hereinafter found
appropriate.
76 DECISIONS OF.NATIONAL'LABOR RELATIONS BOARD
The wages' of the employees in dispute are computed upon, an
hourly basis and; provide for overtime pay as do the wages, of
production employees; they work- with, the production employees;
and they have no power to recommend hiring and discharging.; • On
the other hand, the employees in dispute' may be differentiated from
the ordinary production employees in that they receive higher rates
of pay, are paid bimonthly rather than, weekly, and keep' time cards
rather than punch time clocks.
R. G. Alfrey. and Ewing Lo?igwvorth are employed in the elevator
department and are directly under Buxton, the elevator foreman.
Alfrey • is leadman of the day shift ,which numbers five to six men,
including him. His wages average approximately $135 a month, as
compared to the $90 to $95 a month paid to production employees.?
Longworth is leachnan of the evening shift which is smaller than the
day shift, at times, numbering only one man.' His wages average
$120 d month: We find that Alfrey and Longworth are supervisory.
employees.
C. A. Scott is in charge of the alfalfa department, which operates
a single shift of 11 men. He receives the orders for alfalfa and
instructs the men under him what mixtures and amounts to make up.
His wages average $140 a month. We find that Scott is a super-
visory employee.
John Turner' is a leachnan in the poultry feed null, which numbers
nine men, including him. Like Scott, he receives orders for feed
and relays them to the production employees in his department.
His wages average $140 a month. Ordinarily his department oper-
ates a single shift; if there are two shifts, H. Schultz usually leads
the second shift. • Schultz, because of his efficiency, is paid 2 cents
more per hour than ordinary production employees., H. T. Wilder,
an ordinary production employee, has acted as- a leadman in the
past, but received no increase in pay on such occasions. The Union
would exclude only Turner. Upon the basis of all the facts, we find
that Turner is a supervisory employee.
C. A. McKeeman, Garland King, and A. L. Rosier are employed in
the corn and flour mill as millers. Altogether there are 47 employees
in this department engaged in milling, packing, or loading operations.
Only 10 of the 47 are employed in the actual manufacturing operations,
and included, among the 10 are these 3 millers. McKeeman, the head
miller is paid approximately $225' a month, while King and Rosier, as
second millers, receive respectively approproximately $160 and $155 a
month. The 'function of the millers is to handle the mechanical oper-
ation of the grinding mills ,and to keep; them in repair. The millers
I
BThis 'estimate of the wages of the production employees is based upon their rate of pay
of 53 cents an hour.
'SHAWNEE MILLING COMPANY 77
appear to have some supervisory power over all other employees-in the
department, but during; ordinary production operations' they do: not
have occasion to exercise this authority except over oilers and sweepers.
If there are two shifts, as there are much of the time, King leads the
extra shift; if there are three shifts, each miller leads one. King and
Rosier appear to have two employees directly under them when they
lead extra shifts, a sweeper and an oiler. We find that McKeeman,
King, and Rosier are supervisory employees.
Houston 'Giles and George Gill work with the millers in the corn,
and flour mill. They are known as wheat men, their jobs being to see
that the wheat is clean. 'Their pay averages approximately $120 to
$125 a month. They have at times worked as second millers and are
regarded by the Company as reserve millers. The Company states
that this is the reason they are higher paid than other production
employees. The record does not disclose that these men supervise
anyone as wheat men. In view of this fact, we find that Houston Giles
and George Gill are not supervisory employees, and we shall include
them in the appropriate unit.
H: N. }Velcli is in charge of the-packers in the corn and flour mill,
of whom there are approximately 17 to 21. He handles orders for
flour and corn and directs the men under him as to what is to be packed.
His pay averages approximately $140 a month, whereas flour, packers
average approximately $99 to $104 a month,7 and wheat packers aver-
age $94 to $98 a month." In the event that there is more than one shift,
Joe Ray leads the second shift and L. M. Snelgrove the third. The
Union would exclude Welch, but include Snelgrove, and took no posi-
tion as to Ray. Upon the basis of all the facts, we find that Welch is a
supervisory employee. - , .
J. T. Helton is a headman of the employees who push hand trucks in
the warehouse, which is also part of the corn and flour mill. One of
his functions is to check the loading of freight cars. There are five
car loaders including him working in a single shift. His pay averages
approximately $130 a month. We find that Helton is a supervisory
employees. -
L. E. Garrett appears to be the headman of five other employees in
the warehouse. • His functions include loading trucks and waiting on-
customers. Of the five men, one or two ordinarily work with him, two
others work on cartons, and still another is a sweeper. Garrett's pay
averages approximately $120 a, month. We find that Garrett is a
supervisory employee. ,
° This estimate is based upon their rate of pay of 59 cents an hour.
This estimate is based upon their rate of pay of 56 cents an hour.
78 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
H. E. Smith, is the night loading foreman and directs the night crew
of six men who load trucks. He acts as traffic clerk in connection with
preparing orders for loading. His pay averages approximately $135
a month. We find that Smith is a supervisory employee.
Clyde Giles is a millwright in the millwright department. Instruc-
tions as to work to be done in that department are left with him by the
superintendent. One other millwright, Newhouse, and a sheet metal
worker, Minnis, are employed in that department. Giles, in the ab-
sence of the superintendent, directs what work is to be done. We find
that Giles is a supervisory employee.
TV. H. Carter is the only chemist employed by the Company in its
laboratory. He analyzes grain to determine such facts as its moisture
and protein content and its weight per bushel. The Company admits
that to do such work well requires extensive schooling. Carter's pay,
averages approximately $180 a month. In rush seasons, he has a helper
who is usually from another department, and who performs the less
technical tasks involved ,in laboratory work. We find that, Carter is
employed in a technical capacity and, as such, does not have interests
in common with the production and maintenance employees. We
shall, therefore, exclude Carter 'froln' the appropriate unit.
The Union requested that seasonal employees be excluded from the
unit. The Company, at the time of the hearing, had only two tempo-
rary employees, students working in the plant during their summer
vacation. The Company did not contend that these employees should
be inchided in the appropriate' unit, and in another context took the
position that "all permanent eftiployees" should rote. We shall ex-
clude seasonal employees from the appropriate unit.
We find that all employees of the Company, including Houston Giles
and George Gill, but excluding supervisory employees, second millers,
foremen, office employees, salesmen, seasonal employees, and the chem-
ist; constitute, a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation'which
lhas arisen be resolved by means of an election by secret ballot. The
Union proposed that eligibility to vote should be determined by the
pay=roll date of June 25, 1942, being the date nearest the day the Union
advised the Company of its claims. The Company requested a pay-,
roll period as of the date of the election. We shall, however, adhere.
to our customary practice and shall direct that those eligible to vote
shall be the employees in the appropriate unit who were employed
during the pay-roll period immediately preceding the date of our
SHAWNEE MILLING COMPANY 79
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 , 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 ordered by the Board to
.ascertain representatives f or the purposes of collective bargaining with
Shawnee Milling Company, Shawnee, Oklahoma, 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,' under the direction and
supervision of the Regional Director for the Sixteenth 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
the employees in the unit found appropriate in Section IV,' above,-
who were employed during the pay-roll period immediately preceding
the date of this Direction , including those 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 tem-
porarily laid off, but excluding any who have since quit or been dis-
charged for cause, to determine whether or not they desire to be rep-
resented by United Grain Processors , affiliated with American Federa-
tion of Grain Processors , affiliated with the A. F. of L ., for the pur-
poses of collective bargaining.
MR. GimARD D. REILLY took no part in the consideration of the
above' Decision and Direction of Election.
In -the' Matter, of SHAWNEE MILLING COMPANY and UNITED GRAIN
..PROCESSORS , AFFIL. AMERICAN -FEDERATION OF GRAIN' PROCESSORS,
AFFIL . A. F. OF L. ,
Case No. R-41104 -
AMENDMENT TO DIRECTION, OF ELECTION
October 5, 1942
On September 17, 1942, the National Labor Relations Board, here-
in called the Board, issued a Decision, and Direction of Election
in the , above-entitled proceeding ." The Board , having been advised
by ,the-Regional Director that further time within which to hold the
election, is necessary, . hereby amends its Direction of Election -by
striking therefrom the words "not later than thirty (30) days from
the date of this Direction" and substituting therefor the words "not
later than forty-five (45) days from the date of this Direction."
MR. GERARD D. REILLY took no part in the consideration of the
above Amendment to Direction of Election. -
144 N L R. B 73.
44 N. L R B, No 12a.
80