The Colorado Milling & Elevator Co.

National Labor Relations Board - Board Decisions

Dec 5, 1942

45 N.L.R.B. 1074 (N.L.R.B. 1942)

In ,the Matter of THE COLORADO MILLING & ELEVATOR COMPANY and
UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF_
AMERICA, C. I. O.
Case No. R-4491.Decided December 5,1942
Jurisdiction : flour milling industry.
-Investigation 'and' , Certification,;of Representatives :, existence of question:
refusal- to recognize petitioner because of alleged existing sole bargaining
contract with rival organization ; 1-year contract terminable thereafter on
30-day notice, held no bar when notice of claim was given after definite term
had expired ; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees of one of flour milling company's plants, excluding supervisory and
clerical employees ; agreement as to.
Mr. G. A. Ruegg, of Pueblo, Colo., for the Company.
Mr. E. J. Bouche, of Denver, Colo., for the C. I. O.
Mr. George W. Bray field, by Mr. Robert R. Gallagher, of Pueblo,
Colo., for the A. F. of L.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE ,
Upon amended petition duly filed by United Retail, Wholesale and
Department Store Employees of America, affiliated with the Congress
of Industrial Organizations, herein called the C. I. 0., alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of The Colorado Milling & Elevator Company,
Pueblo, Colorado, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Elmer L. Hunt, Trial Examiner. Said hearing was held at
Pueblo, Colorado, on November 6, 1942. The Company, the C. I. 0.,
and American Federation of Grain Processors Council, Local No.
21845, affiliated with the American Federation of Labor, herein called
the A. F. of L., appeared, participated, and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner's rul-
45 N. L. R. B., No. 152.
1074
THE`COLORADO MILLING'& ELEVATOR COMPANY 1075'
ings made at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in the case, the Board makes the following:,
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Colorado Milling & Elevator Company is engaged in the pur-
chase,and resale of grains and the processing of grains,into flour,.
mill feed, and ground feed. ,The Company owns 21 mills, 9 of whichi
are in Colorado, and 150 grain elevators, 68 of which are in Colorado.
During the past 12 months the total value of grains processed by the
Company exceeded $1,000,000. During the same period, at its Pueblo
plant, the only plant involved in this proceeding, the Company
processed grain valued in excess of $200,000. Approximately 20
percent of the raw material processed at the plant was shipped to the
plant from points outside Colorado. Approximately 49 percent of
the products finished at the plant was shipped to points outside
Colorado.
II. THE ORGANIZATIONS INVOLVED
United Retail, Wholesale and Department Store Employees of
America is a labor organization affiliated with the Congress of Indus-
trial Organizations, admitting to membership employees of the
Company.
American Federation of Grain Processors Council, Local No. 21845,
is a labor organization affiliated with the American Federation of
Labor, admitting to membership employees,of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 1, 1941, the Company recognized the A. F. of L. as
the exclusive bargaining representative of non-supervisory produc-
tion employees at its Pueblo plant and entered into a sole bargaining
contract with the A. F. of L. The contract provides that it shall
remain in effect for 1 year and shall thereafter continue operative
until terminated on 30 days' notice by either party.
On August 2, 1942, the Company's employees who were members
of the A. F. of L. considered a change of affiliation from the A. F. of
L. to the C. I. O. They paid their dues to the A. F. of L. up to Sep-
tember 1, 1942. On September 6, 1942, they decided to withdraw
from the A. F. of L. and apply for a charter from the C. I. O. On
1076 DECISIONS „OF; NATIONAL LABOR RELATIONS BOARD
September 14,,1942,, the C.. I. -O. asked the Company to recognize it as
bargaining agent of the Company's employees. The Company ac-
knowledged receipt of this letter. On September 15,.1942, the. Com-
pany's employees formally notified the A. F. of L. of their change of
affiliation and their desire-to be. represented by the C. 1. 0.
The A. F. of L. contends that its contract of September 1, 1941, was
automatically renewed. on. September- 17,'1942, and therefore operates
as a bar to this proceeding. We find no merit in this contention.
Since the contract is now terminable upon 30' days' notice, the original
1-year term having expired, on September 1, 1942-, we fihd' 'that 'it
does not constitute a bar to, a determination, of' representatives at
this time. .
A statement prepared' by the Regional Director and- introduced' into
evidence at the hearing indicates- that the C. I. O: represents- a• sub-
stanti'aP number of employees in the appropriate unit.1
' We find' that a: question' affecting commerce has arisen concerniI hg
the representation of employees of the- Company; within the meaning
of Section .9 (c)' and' Section 2 (6)• and- (7)' of the National Labor
Relations-Act. k
IV. THE APPROPRIATE UNIT
We find, in accordance with the agreemei t of the parties,2 that all
production and'maintenance' empioyees-, employed, at. the'- Company's
Pueblo:plant, excluding;supervisory andiclericallemployees; the clfem-
ist,, and, the- outside salesmen;, constitute a, unit, appropriate, for the;
purposes of collective bargaining, within the meaning of Seetiom 9
(b), of the- Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees- of the Company can, best be resolved by an
election by, secret ballot. The C. I. O. and the A., F., of L. desire that
eligibility to vote be determined',by reference-to. the pay roll of Sep-
tember 11, 1942, the date the contract year terminated. The Company
urges that the Board's usual practice of using, a current pay roll be
.1 The Regional Director ' s statement discloses:that' the C. I. O. submitted' 22 , authorization
cards (11 undated and 11 dated bet,ueen September 7. and, September 10„ 1942), 20 of
which bear apparently genuine signatures of employees on the Company's pay roll of
September, 1, 1942 At the hearing;, the, C. L. O. submitted(to the Trial- Examiner 3 addi-
tional cards bearing apparently genuine signatures of. employees on the Company's pay
roll, of October, 31, 1942' The A. F of L. submitted no, evidence of current' representation,
but relies on its, contract as, establishing its interest . Theie are approximately, 26
employees in the appropriate unit.
-'Employees tin , the agreed unit have been covered by the contract' between the Company
and,the A. F. of L.
THE COLORADO MILLING & ELEVATOR COMPANY' 1077
followed, since there have been some changes in personnel since Sep-
tember 1. We see no valid reason for departing from our customary
practice, and accordingly find that those eligible to vote in the election
shall be all employees of the Company within the unit found appro-
priate, in Section IV, above, who-,were employed during :the .,payroll
period immediately preceding the date of the 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 9, of National Labor
Relations Board Rules and Regulations-Series 2, as,:amended, It is
hereby -
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The 'Colorado
Milling & Elevator Company, Pueblo, Colorado, 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 'Twenty-second Region,
acting in this matter as agent for the National Labor Relations Board
and subject to Article III, Section 1'0, 'of said Rules and Regulations,
among all employees of the Company within the unit found appro-
priate in Section IV, 'above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including
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 temporarily laid off, brit excluding employees
who have'since•quit or been discharged for cause, to-determine whether
they desire-to be represented by United Retail, Wholesale'and'•Depart-
, lnent Store Employees of America,,C. I. 0., or -by American Federa-
tion-of Grain Processors Council, Local No.'21845, A. F. •of L; for.;-the
purposes of- collective bargaining,,or'by neither.