The Colorado Milling and Elevator Co.

National Labor Relations Board - Board Decisions

May 24, 1954

108 N.L.R.B. 1014 (N.L.R.B. 1954)

1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed to notify Local 710 of the openings and, according to O'Bryan, merely followed the
"request" of Durant, steward for Local 600, to place him, Popham, and Simmons on the
board in the positions left vacant by the 3 drivers who "bid off" and above McAllister, Poe,
and Edwards. This arrangement eventually came to the attention of Keegan who, by letter,
informed the Company that, since the bid had been closed in May, any replacements should
come in at the bottom of the list. Early in July the Company complied with Keegan ' s letter
and Durant, PophaFn, and Simmons were placed at the bottom of the list, under McAllister,
Poe, and Edwards.
At this point Simmons, on behalf of himself and the 2 others, filed a charge with the Board,
claiming discrimination since July 6, which was when they were put at the bottom of the
list, removed from positions which Durant had prevailed upon the Company to put them in
in June. The complaint, however, alleges that the 3 have been discriminated against since
about May 1, and in oral argument General Counsel makes it plain that not only does he
consider it to have been an act of discrimination to place the 3 complainants at the bottom
of the list in July, but also to have failed to accord them runs when the bids were reopened
in mid-May. He orally based his claim of discrimination upon the contention that the 3
complainants had more " terminal seniority" than Poe, McAllister, and Edwards. It appears
that General Counsel meant "company" seniority, or date of hiring, and not "terminal"
seniority, which is length of time on runs between the same terminals But whatever General
Counsel actually meant, and whatever the actual seniority standings of the individuals
involved, either terminal or company, the evidence is conclusive that the posting of the
bids in May was in full conformity with the agreement between the 2 Locals and the Company,
that it has long been the practice on rotating runs, such as the St. Louis-Chicago run, to
move drivers up as vacancies occur while new bidders come in at the bottom, and that
putting the 3 complainants at the bottom of the list in July was neither in "disregard" of
practice nor discrimination to encourage membership in Local 710.
The Trial` Examiner concludes and finds that the preponderance of evidence fails to sustain
the allegations of the complaint as to the alleged unfair labor practices.
It will therefore be recommended that the complaint be dismissed in its entirety.
Upon the foregoing findings of fact and upon the entire record in the case, the Trial
Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of the Company occur in commerce within the meaning of Section 2 (6)
of the Act.
2. The Respondent Union is a labor organization within the meaning of Section 2 (5) of the
Act
3. The Respondent Union has not engaged in unfair labor practices, as alleged in the
complaint, within the meaning of Section 8 (b) (1) (A) and (2) of the Act.
[Recommendations omitted from publication]
THE COLORADO MILLING AND ELEVATOR COMPANY'
and AMERICAN FEDERATION OF GRAIN MILLERS, AFL,
Petitioner . Cases Nos . 19-RC-1434, 19-RC-1435, 19-RC-
1438, 19-RC-1439, 36-RC- 1012, and 36-RC-1013. May 24,
1954
DECISION AND DIRECTION OF ELECTIONS
U on petitions duly filed and consolidated under Section
9 (c) of the National Labor Relations Act, a hearing was held
before Orville W. Turnbaugh, hearing officer. The hearing
iThe name appears as amended at the hearing.
108 NLRB No. 133
THE COLORADO MILLING AND ELEVATOR COMPANY 1015
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 mean-
ing of the Act.
2. The labor organizations involved claim to represent
certain employees of the Employer.'
3. 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. The Petitioner seeks separate units of production and
maintenance employees at the Employer ' s Burley, Twin Falls,
Caldwell, and Weiser, Idaho, flour mills, and at the Employer's
Ontario and Nyssa, Oregon , elevators , with certain requested
exclusions .4 The parties are in substantial agreement as to
the appropriateness of the units.' The Employer, however,
would exclude as supervisors all employees classified as second
millers . The Petitioner and Intervenor take contrary positions.
The Employer, a Colorado corporation , is engaged in the
processing and marketing of grain and flour. It operates ap-
proximately 150 flour mills and elevators , including flour
mills at Burley, Twin Falls, Caldwell, and Weiser, Idaho, and
elevators at Ontario and Nyssa , Oregon . The Intervenor has
represented units of the mill and elevator employees for a
number of years under a series of written agreements of
which the most recent was executed on May 1, 1953 , effective
for a period of 1 year . Historically it appears that second
millers have been excluded from all other units ` of production
and maintenance employees at the Employer ' s plants except
at the Weiser and Caldwell mills where the Intervenor has
bargained for second millers as part of units of rank-and-file
employees.
As regards the status of second millers, the record shows
that the second miller is the most skilled and highest paid
2 The Intervenor's (International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers, Local No. 483, AFL) motion to dismiss the petition on the alleged ground that
the Petitioner improperly secured its representative showing through fraudulent misrepre-
sentation and other misconduct is hereby denied. Showing of interest is a matter for adminis-
trative determination and is not subject to collateral attack by the parties. Moreover, we
are administratively satisfied that the Petitioner has made adequate showings of interest
in this proceeding.
3The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,
Local No. 483, AFL, was permitted to intervene herein on the basis of its contractual interests.
4 The parties are agreed that temporary employees, defined as those employed for a specific
job with no expectation of continued employment after the completion of their temporary
work, shall be excluded from the unit. In addition the Employer would exclude seasonal
employees As the record shows that neither of these categories of employees has been em-
ployed for a number of years and that there is no present expectation of their being employed,
we shall make no present determination as to their inclusion or exclusion from the unit.
5 The Intervenor contends that the current contractual units listing certain specific cate-
gories of employees are the appropriate wiits. It is not disputed, however, that the present
contractual units constitute substantially the production and maintenance units sought by the
Petitioner.
1 016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee in the plant ; that under the general supervision of
the mill superintendent , who is the head miller , the second
miller responsibly directs the work of other employees. Fur-
thermore, on the second and third shifts, when the mill super-
intendent is not present, the second miller is in complete
charge of the milling operations and is responsible for the
proper functioning of the mill. Although the second miller has
no authority to hire and discharge employees , the record
indicates that he has authority to make effective recommenda-
tions in that regard.
Because of curtailed operations at the Caldwell plant,
necessitating for the most part only single shift operations, 6
the Unions contend that the 2 =second millers , who would
otherwise be in charge of the second and third shift operations,
possess no supervisory authority and therefore should be in-
cluded in the production and maintenance unit at the Cald-
well plant. While it is true that present business conditions
have made it necessary for 2 of the 3 second miller at Caldwell
to perform a considerable amount of miscellaneous manual
labor, there is no evidence in the record that reduced opera-
tions at this point are more than temporary , Indeed , it appears
that as recently as a week prior to the hearing the mill
operated a second shift . Moreover , the Employer indicates
that it will operate on a full 24 -hour schedule as soon as
business conditions warrant . In these circumstances , we find
that second millers are supervisors within the meaning of the
Act. Accordingly, we will exclude them from the unit.'
We find that the following employees at the Employer's
Burley, Twin Falls, Caldwell and Weiser , Idaho , mills consti-
tute respectively separate units for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
All production and maintenance employees ,, excluding office
clerical employees , laboratory employees , professional em-
ployees, outside salesmen, commission buyers, watchmen,
guards, second millers, and all other supervisors as defined
in the Act.
We also find that the following employees at the Employer's
Ontario and Nyssa , Oregon, elevators constitute respectively
separate units appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act: All
production and maintenance employees , excluding office
clericals , watchmen, guards , professional employees, plant
managers, and all other supervisors as defined in the
Act.
[Text of Direction of Elections omitted from publication.]
6 The Iniervenor' s representative admitted , however, that the mill had operated intermit-
tently on a multiple shift basis since the curtailment of the operations.
7 Flour Mills of America d/b/a Valier and Spies Milling Company, 78 NLRB 324; Continen-
tal Pipe Line Co., 78 NLRB 379, 383