The National Sugar Refining Company of New Jersey, L. I. City Refinery

National Labor Relations Board - Board Decisions

Jan 25, 1939

10 N.L.R.B. 1410 (N.L.R.B. 1939)

In the Matter of THE NATIONAL SUGAR REFINING COMPANY OF NEW
JERSEY, L. I. CITY REFINERY and LOCAL 1476, SUGAR REFINERY
WORKERS, INTERNATIONAL LONGSHOREMEN'S Ass's
Case No. R-1126.-Decided January 05, 1939
Sugar Relining Industry-Investigation of Rcpresentatives : controversy con-
cerning representation of employees : appropriate unit, stipulated ; rival organi-
zations; existing contract executed with the representative of a majority of
employees held a bar to investigation of representatives ; petition for, dismissed
without prejudice to renewal at a reasonable time before existing contract
expires.
Mr. Millard L. Midonick, for the Board.
Blake-& Voorhees, by Mr. Giddings Howd of New York City, for
the Company.
Liebman, Robbins, Pressman & Leider, by Mr. Harold I. Cammer,
of New York City, for the United Sugar Workers Local Industrial
Union No. 580, C. I. O.
Mr. John R. Owens, of New York City, for the International Long-
,shoremen's Association, A. F. of L.
Miss Margaret Holmes, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On August 5, 1938, Local 1476, Sugar Refinery Workers, Interna-
tional Longshoremen's Association, herein called the I. L. A., filed
with the Regional Director for the Second Region (New York City)
a petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of The National Sugar
Refining Company of New Jersey," herein called the Company, at its
Long Island City, New York, plant, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. On
October 6, 1938, the National Labor Relations Board, herein called
i The petition and order incorrectly designated the Company as National Sugar Refining
Co. At the hearing the petition was amended to designate the Company by its proper
corporate name, The National Sugar Refining Company of New Jersey.
10 N. L. R. B., No. 124.
1410
DECISIONS AND ORDERS 1411
the Board, acting pursuant to Section 9 (c) of the Act and Article
III, Section 3, of National Labor Relations Board Rules and Regu-
tions-Series 1, as amended, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On October 11, 1938, the Regional Director issued notice of hear-
ing, amended on October 22, 1938, copies of which were duly served
upon the Company, upon the I. L. A., and upon the United Sugar
Workers Local Industrial Union No. 580, herein called the 'United,
a labor organization claiming to represent employees directly affected
by the investigation. Pursuant to the notice, a hearing was held on
November 14 and 17, 1938, at New York City, before Henry J. Kent,
the Trial Examiner duly designated by the Board. The Board, the
-Company, and the United were represented by counsel and the I. L. A.
was represented by its secretary-treasurer. All participated in the
'hearing. Full opportiuiity to be heard, to examine and cross-examine
.witnesses, and to introduce evidence bearing on the issues was af-
forded all parties. During the course of the hearing the Trial Exam-
iner made several rulings on motions and on objections to the admis-
sion of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. At the close of the hearing,, the United
made a motion to dismiss the petition of the I. L: A. on the grounds
that no question concerning representation had arisen, which motion
the Trial Examiner reserved for action by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The National Sugar Refining Company of New Jersey, a New
Jersey corporation, is engaged in the business of refining sugar. It
owns and operates two plants, one located in Long Island City, New
York, and the other in Edgewater, New Jersey. We are concerned in
this case with the Long Island City plant.
Raw sugar, the principal raw material used by the Company, is
imported from Puerto Rico, Cuba, the' Philippine Islands, and Ha-
waii. At its Long Island City plant the company refines over 500,-
,000,000 pounds of raw sugar annually, 60 per cent of which is sold
and shipped outside the State of New York. The Company agreed
at the hearing that it is engaged in interstate commerce within the
meaning of the Act.
There are approximately 1,000 employees at the Company's Long
Island City plant.
1412 NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
Local No. 1476, Sugar Refinery Workers, International Longshore-
-men's Association , is a labor organization affiliated with the American
Federation of Labor, admitting to membership employees of the
Company at its Long Island City plant.
United Sugar Workers Local Industrial Union No. 580 is a labor
organization affiliated with the Committee for Industrial Organiza-
tion, admitting to membership employees of the Company at its Long
Island City plant.
III. TIIE APPROPRIATE UNIT
At the hearing the parties stipulated that the appropriate unit con-
sisted of all employees of the Company at its Long Island City plant,
exclusive of supervisors, foremen, watchmen, office workers, chauf-
feurs, and helpers. We see no reason to alter the unit agreed upon
by the parties.
We therefore find that all employees of the Company at its Long
Island City plant, exclusive of supervisors, foremen, watchmen, office
workers, chauffeurs, and helpers, constitute a unit appropriate for
the purposes of collective bargaining and that said unit will insure
to employees of the Company.,at its Long Island}City plant the' full
benefit of their right to self-organization and to collective bargaining
and otherwise effectuate the policies of the Act.
IV. THE QUESTION CONCERNING REPRESENTATION
On September 8, 1937, the Board conducted a consent election in
an agreed unit of employees of the Company at its Long Island City
plant.2 Of 970 employees voting, the United received 507 votes and
the I. L. A. received 441 votes. Thereafter, on September 20, 1937,
the I. L. A. filed a petition with the Board, seeking investigation and
certification of representatives and requesting, that the election be
set aside. At the subsequent hearing on its petition, the I. L. A.
contended that the United had resorted to fraud and bribery during
the election and had violated the clause of the Regional Director's
instructions providing that "no electioneering will be allowed, on the
day of the election, in the plant or near the place of voting." In its
decision on November 30, 1937, the Board found that the election
had been conducted in a fair and impartial manner and consequently
that no question concerning representation had arisen. The petition
of the I. L. A. therefore was dismissed.3
2 It was not contended in this proceeding that such unit , agreed to by the parties to
the consent election, differed from the unit we have found to be appropriate in Section III.
3 Matter of The National Sugar Refining Coinpany of New Jersey and International
Longshoremen 's Association , Local 1476, Sugar Refinery workers, 4 N L. R. B 276.
DECISIONS AND ORDERS 1413
After the consent election the Company and the United commenced
negotiations concerning a collective contract in the Long Island plant.
At that time there existed between the Company and United Sugar
Refinery Workers Local Industrial Union No. 151, C. I. 0., herein
called Local No. 151, a contract covering wages, hours, and working
conditions at the Company's Edgewater, New Jersey, plant, which
by its terms expired in June 1938. The United, therefore, suggested-
a similar expiration date for the proposed contract covering labor
relations in the Long Island City plant. The Company, however,
refused to enter into a contract for such a short period. On Decem-
ber 17, 1937, the United, and the Company finally executed, -a contract
for the Long Island City plant to remain in force until October 6,.
1938. Thereafter, at the suggestion of the Company, the United
unsuccessfully attempted to induce Local No. 151 to extend the Edge-
water contract until October 6, 1938.
At a meeting of the United in June 1938, a committee was selected
to negotiate a new contract with the Company. Local No. 151 was
bargaining with the Company at that time, since the Edgewater con-
tract expired during the month of June. Conferences between Local
No. 151, the United, and the Company were held in the early part of
July, during which month several meetings of the United were called
to inform- members- of, the progress of the joint negotiations. On.
July 28, 1938, the Company signed new contracts with the United
and Local No. 151 which contained uniform expiration dates. The
United's new contract superseded the 1937 contract then in force
and was to be effective at the Long Island City plant until June 30,
1939.
Subsequent to the election in 1937 the I. L. A. had been inactive
in the Long Island City plant. Prior to August 1938, I. L. A. meet-
ings were attended by only five or six employees and over 300 I. L. A.
books had been surrendered to the United. John R. Owens, secre-
tary-treasurer of the I. L. A., wrote a letter to the Company, dated
July 28, 1938, stating that the I. L. A. represented a majority of em-
ployees at the Long Island City plant and requesting a bargaining
conference. There is no evidence in the record establishing the date
on which this letter was received. The Company replied that the
United had been designated as the representative of its empl oyees
in the Long Island City plant by reason of the consent election in
1937. This was the first time the I. L. A. had approached the Com-
pany since the controversy concerning representatives in 1937.
At the hearing the I. L. A. asserted that the new, contract, executed
over 2 months before the expiration date of the 1937 contract, was the
result of a desire to prevent the I. L. A. from organizing employees at
the Long Island City plant. The evidence adduced at the hearing
supports the contention of the Company and the United that the sole
147841-39-vol 10--90
1414 NATIONAL LABOR RELATIONS BOARD
motive in entering into a new contract in July was to enable the
United and Local No. 151 to secure contracts with uniform expiration
dates, and we so find. In addition, although the Company and the
United were negotiating for a new contract throughout July 1938,
during which month the negotiations were discussed at meetings of
the United, the I. L. A. did not apprise the Company of its claim to
represent a majority of employees at the Long Island City plant until
its letter of July 28, 1938, bearing the date on which the new contract
with the United was executed.
At the hearing both the I. L. A. and the United claimed to have
represented a majority of employees in the Long Island City plant
during the month of July 1938. The Company's pay roll of July 16,
1938, shows approximately 970 employees in the appropriate unit. The
United submitted in evidence sheets from the books of its financial
secretary which establish that 518 of such employees paid dues to the
United in July 1938. The I. L. A. introduced 700 membership cards
in evidence, all of which were undated. From the testimony of I. L. A.
officials, it appears that only 300 employees at the Long Island City
plant had signed cards in July 1938, whereas the remaining 400 had
signed cards in August and September 1938. There was no evidence to
identify the 300 employees who allegedly had signed I. L. A. cards
prior to July 28,1938. In the absence of a definite showing of a change
in affiliation, the fact that 518 employees paid dues to the United Bur-
in; the month of July convinces us that a majority of employees at
the Long Island City plant intended to maintain their membership in
and be represented by the United when the new contract was executed.
The I. L. A. alleged, however, that the Company, pursuant -to a
provision in the July 28, 1938, contract, had influenced its employees to
join the United. Paragraph 4 of the July 28, 1938, contract provides
". . . the Company will encourage its employees to become and
remain members (of the United) in good standing . . ." During
the months of August and September 1938 the plant superintendent
called several employees into his office and urged them to affiliate with
the United. However, the 1937 contract did not contain a provision
similar to paragraph 4 of the July 28, 1938, contract, and there is no
evidence that the Company assisted the United in securing members by
any action defined in the Act as an unfair labor practice prior to July
28, 1938. Consequently, no question is raised concerning the validity
of the United's membership in July 1938, when the new contract was
executed. Since no charges of unfair labor practices have been filed,
we are of the opinion that neither the legality of the provision em-
bodied in paragraph 4 of the July 28, 1938, contract nor the evidence
of coercion subsequent to the execution of such contract is before us in
this case.
DECISIONS AND ORDERS 1415
We do not think an election should be ordered or representatives
certified at this time . The Company has entered into a contract with
the United covering all employees at the Long Island City plant in an
-appropriate unit, such contract to remain effective through June 30,
1939. The contract was made at a time when the United represented
a majority of employees in the appropriate unit, and membership in
the United when the contract was executed was not induced by any
action defined in the Act as an unfair labor practice . The duration
of the contract is not for such a long period as to be contrary to the
-purposes and policies of the Act. Under these- circumstances, we will
not proceed with an investigation of representatives until such tune
as the contract is about to expire and a question exists as to the proper
representative for collective bargaining with respect to the negotiation
,of a new agreement,
Therefore , we will dismiss the present petition of the I. L. A. without
prejudice to renewal at a reasonable time before the- expiration of the
contract now existing between the United and the Company.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
No question concerning the representation of employees in the Long
Island City plant of The National Sugar Refining Company of New
Jersey, exists within the meaning of Section 9 ( c) of the National
Labor Relations Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusion of
law, the National Labor Relations Board hereby dismisses the petition
for investigation and certification of representatives filed by Local
1476, Sugar Refinery Workers, International Longshoremen 's Asso-
ciation without prejudice to renewal as stated herein.
MR. EDWIN S . SMITH , dissenting :
The original determination of the United as the majority repre-
sentative was accomplished by the consent election held September 8,
1937. This was considerably more than a year ago . The fact that
there is now a contract with the United, made while the United still
had a majority and running to June 30, 1939, should not be a bar to
a new election.
There is ample showing in the membership cards introduced by the
I. L. A. that a new question concerning representation has arisen. The
petition of the I. L. A. was filed August 5, 1938, about eleven months
after the consent election . It constituted a timely indication that there
might then be a question concerning representation.
1416 NATIONAL LABOR RELATIONS BOARD
Although I do not feel at all certain on the point, there is undoubt-
edly merit in the conclusion indicated in a number of decisions of this
Board that the purposes of the Act, in so far as they look toward the
stabilization of industrial relations, will best be served by not per-
mitting within a year's period a new determination of a majority for
purposes of representation. However, a year having elapsed, to deny
employees opportunity to exercise the right to change bargaining
representatives when there is a substantial showing of a change of
sentiment is an action which, in my opinion, runs counter both to the
intent of the statute and the constitutional theory on which it is based.
The Board recognized in an earlier case 4 that a change of bargaining
representatives taking place as a result of proceedings under the Act
need not operate to invalidate the substantive provisions of a contract
otherwise valid. This conclusion seems to me appropriate to the issues
of the existing contract with the United.
I would sustain the petition of the I. L. A. and order an election
between it and the United in the unit asked for.
A Matter o f New England Transportation Co and International Association of Machinists,
1 N. L. R B. 130.