Tobacco By-Products & Chemical Corp.

National Labor Relations Board - Board Decisions

Oct 15, 1945

64 N.L.R.B. 252 (N.L.R.B. 1945)

In the Matter of TOBACCO BY-PRODUCTS & CHEMICAL CORPORATION and
TOBACCO WORKERS INTERNATIONAL UNION, AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR
Case No. 5-R-1987.-Decided October 15,1915 '
Messrs. George G. Osborne, James W. Schofield, and C. Bruce
Rennie, of Richmond , Va., for the Company.
minMr. J. E. Lentie, of Washington, D. C., and Mr. George Benja
and Miss Naomi Woodridge, of Richmond, Va., for the Tobacco
Workers.
Mr. Yelverton Cowherd, of Washington, D. C., and Mr. Hugh V.
-Brown, of Richmond, Va., for District 50.
Mr. W. L. Grctnt, of Atlanta, Ga., and Mr. A. A. Thompson, of
Richmond, Va., for the Machinists.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE, CASE
Upon an amended petition duly filed by Tobacco Workers Inter-
national Union, herein called the Tobacco `Yorkers, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Tobacco By-Products & Chemical Corporation, Rich-
mond, Virginia, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice
before Sidney F. Barban, Trial Examiner. The hearing was held at
Richmond, Virginia, on August 3, 1945. The Company; the Tobacco
Workers; United Mine Workers of America, District 50, herein called
District 50, on ,behalf of Tobacco Chemical Workers Local 13011,
here called Local 13011; and International Association of Machin-
ists, Lodge No. 10, herein called the Machinists, appeared and
participated. All parties were afforded 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. All
1)arties were afforded an opportunity to file briefs with the Board.
64 N. L. R. B., No. 43.
252
,TOBACCO- BY-PRODUCTS & CHEMICAL CORPORATION 25a
Uponthe.entire record, in the case, the Board makes the following.
•l,
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Tobacco-By-Products &, Chemical Corporation has its principal
place of 'business in Louisville, Kentucky, and operates'a branch•'plant
at Richmond,' Virginia, the only plant involved in, this`proceedin'g.
The -raw materials annually used by the Company at its Riclimoiid
plant, exceed $500,000 in value, of ' which more than 50 percent ' is
shipped to the plant from points outside Virginia. Products finished
at the Richmond plant annually exceed $1,000,000 in' value, of which
about 95 percent is shipped from 'the plant to points outside Virginia,.
The Company admits that it is'engaged in commerce''within'the•
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Tobacco Workers International Union and International Associa7
tion of Machinists are labor organizations affiliated with the Ameri-
can Federation of Labor,. admitting to membership employees of the
Company. i
United Mine Workers of America, District 50, and its local union,
Tobacco Chemical, Workers, Local 13011, are labor organizations,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated May 17, 1945, the Tobacco Workers asked 'the'Com-
pany for recognition as bargaining representative of employees of the
Company. The Company refused to grant recognition to the Tobacco
Workers until that organization, should be certified by the Board.
On July 3, 1944, the Company and Local 13011 entered into a con-
tract, effective on July 7, 1944, for 1 year, renewable thereafter from
year to year unless'terminated by thirty (30) days notice'prior to'the
expiration date. On May 25, 1945, the' Company gave due notice
to terminate the contract. The contract, so terminated, constitutes
no;bar,to a determination of representatives at'this time.
A statement'of a Board agent, introduced into evidence at the hear-
ing, indicates that the Tobacco Workers represents a substantial num-
ber- of employees in the unit hereinafter found appropriate 1
The Field Examiner reported' that the Tobacco Workers submitted 105 cards , bearing
the names of employees appearing on the Company ,s pay roll of June 10, 1945.
. District 50 relies on a recently expired contract covering employees ' in the appropriate
unit , as proof of its interest among them. ,
There are approximately 146 employees in the appropriate unit.
' 254 DECISIONS OF ' NATIONAL LABOR ' RELATIONS -BOARD
We find that a question affecting commerce has ari's'en concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) aiid (7) of the Act.
IV. THE APPROPRIATE UNIT
The'Tobacco Workers contends that all the Company's employees
in the production, shipping, extract, nicotine, unloading, raw material,
and. shop 'helpers' departments, including gang leaders, but excluding
technical, employees (chemists and laboratory technicians); skilled
mechanics, clerical employees,, superintendent, foreman, assistant fore-
man, and all other, supervisory employees, constitute-an appropriate
bargaining, unit. District 50 contends that skilled mechanics should
be, included, in the, production unit and that their exclusion con'sti=
tutes racial discrimination respecting representation among the•Com-
'pany's employees, contrary to Board policy. The Machinists contends
that skilled mechanics constitute a separate, appropriate bargaining
unit and that these employees are presently covered by a contract,
which precludes a"determination' of representatives among them at
this 'time.
A. Th'e plant operations'
The Company's plant' at"Richmond, Virginia, consists of 8 to .10
buildings. - Refuse tobacco -is unloaded at the, plant and placed' in
storage until needed. The tobacco as needed- is removed from storage
-and submitted to drying and grinding operations. It is then processed
to remove nicotine. The nicotine' extracted, the residue is loaded into
cars for shipment to fertilizer companies. The nicotine- is processed
for use in the various products made by the Company. These products
are packed- and shipped from the.Company's plant. All the work,re:
quired to handle the raw, material and produce the finished products
is performed by production employees.. ,
A superintendent at the plant"has general charge of all plant opera-
tions. He is assisted by an assistant superintendent of production,
who has charge of all production processes, and by, a master mechanic,
who has charge of all 'maintenance workers. Under the assistant
superintendent",of production -are, shift -supervisors, and foremen, who
have, super-vision over approximately 150 production, workers, un-
skilled and semi-skilled laborers engaged in machine and other" opera-'
tions. Under the master mechanic are a shop foreman and a group, of
approximately 14 skilled craftsmen, including a steam fitter,-an elec-
trician, `a carpenter, an auto mechanic, and machinists. The place-
ment of these craftsmen in the'produe'tion. unit 'is -the principal issue
raised in this proceeding.
The work of the -Company's craftsmen is not closely confined-to the
trade in which each'has special training, since the plant does not sup-
TOBACCO BY-PRODUCTS & CHEMICAL CORPORATION 255
ply enough 'work along restricted craft lines. These craftsmen have
'their headquarters in the machine shop, but they spend most of their
time throughout the plant in building and'installing machine'r`y and
in general repair and maintenance work. Four laborers; who assist
the skilled craftsmen as helpers in lifting heavy machinery and other
work, are under the supervision of the master mechanic and are the
only employees, aside from the craftsmen, who work'part of their time
in the machine .shop., While all production and ,maintenance em=
ployees of the Company are hourly paid and share the same vacation
and other privileges, maintenance mechanics have separate seniority
and are much higher paid than semi skilled and unskilled, production
workers. ,
B. The bargaining history
Prior to 1937, the Company's employees were unorganized. In
June 1937, the Machinists asked the Company for recognition, as bar-
gaining representative of skilled maintenance employees at the Com
pany's Richmond plant in a multiple-craft unit and, thereafter, the
parties entered into a closed-shop contract covering these employees.
The recognition accorded the Machinists by the Company, and the
contract, covered only skilled craftsmen and did not cover the laborers
who spend most of their time, assisting maintenance employees in the
machine shop and throughout the plant wherever the latter might
be working. The contract between the Machinists and the Company,
was renewed with amendments, year after year, and, among other
changes, the closed-shop provisions were changed to preferential hir-
ing provisions. On June,26, 1945, the contract was again renewed
for an additional year.
In 1937 two representatives from the Negro Youth Congress came
to Richmond. and organized the production workmen at the Com-
pany's plant, all of whom were colored employees, including the
,laborers who assist the craftsmen. The Company's production em-
ployees subsequently affiliated with the Tobacco Stemmers and La-
borers Union, affiliated with the Congress of Industrial Organizations,
and on July 8, 1937, this organization entered' into a contract with
the Company for 1 year, subject to automatic renewal.z In 1938 pro-
duction employees of the Company, changed their affiliation and joined
Local 13011, the local union presently chartered by District 50.3 On
July 8, 1938, the Company entered into a contract with Local, 13011
covering the unit described in the contract of the preceding year.
2 This contract in terms recognizes the labor organization as the bargaining agent for its
members only As a practical matter, all production employees of the Company were
deemed covered by the contract , and classifications for the Company ' s production . processes
were subsequently set up without regard to union membership of employees concerned
3 In 1938, Local 13011 was affiliated with` the, Congress of Industrial Organizations.
Changes in union affiliation resulted in no change in the structure of the bargaining unit
for production employees.
256, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Succeeding, ,contracts, followed covering , production employees as- a
unit. The last contract between the -parties was executed on July, 3;
1944, , to be , effective on July , 7, 1944, , for 1 ' year , subject , to automatic
renewal unless written , notice were- given by either : party, 3,0 ,days
prior to the expiration date of a. desire to terminate the same. As
noted above , the Company gave , due notice to terminate the contract.
Onir July 20, 1945 ,, the Tobacco, Workers filed the petition , in, this
proceeding:
C. Conclusions
District 50, on , behalf of Local 13011, contends "that the unit pro-
posed -by, the' Tobacco Workers, and represented by Local 13011' and
its predecessor since 1937 , does not constitute an appropriate unit,
in that skilled mechanics , all of whom employed at the Company's
plant are white employees , are excluded from the production' unit,
composed entirely of colored employees , and urges that the separate
units of production workers and skilled craftsmen constitute dis-
crimination as -to race which vitiates the bargaining history as a
determinant of the appropriate unit. The Machinists contends that
skilled craftsmen in the plant constitute a homogeneous multiple-craft
group of employees , that their bargaining history as a separate unit
since 1937 precludes their inclusion in the bargaining unit of produc-
tion'employees at this time ; and, further ,' that the'current contract
covering these'employees constitutes a bar to a determination of repre-
sentatives among them. '
As'noted above, the Company '"' maintenance employees are skilled
craftsmen . At the time they ' we're organized by the Machinists, and
at the present time, they were all white employees . There is very
little turn -over among them and several of the 14 employees who pres-
ently constitute the group were employed by the Company before
these employees were organized by the Machinists in 1937.
The contention in the instaiit, proceeding is not that the Machinists
denies representation and membership to colored employees, but that'
the long exclusion of colored employees from the craftsmen's unit
was racial discrimination which can'riow be remedied, since the repre-
sentation issue is for the. first, time before the Board, b'y including
the`craftsmen in' the larger p'roddctioii unit'. There is nothing in the
recoi d to indicate that the, bargaining unit set' up by the 'Machinists
in 1937`was drawn upon racial lines, nor did District 50, in t$e many
years in -which', Local 13011 represented the Company's production
employees, raise this issue. The'Company's craftsmen clearly con-
stitute a homogeneous group of skilled multiple-craft employees, and
may constitute an appropriate bargaining' group.4 Whether a bar-
4 See Matter of The Pure Oil Companyy ,'55 N. L ., R B. 1455' , also Matter of The Electro
Metallurgical Company, 56 N. L R. B 1464.
TOBACCO.BY-PRODUCTS , & CHEMICAL CORPORATION 257
gaining, unit drawn along departmental lines, including the crafts-,
men and their,•helpers, is also appropriate is not before us at this
time. ; Since craftsmen are presently covered by a contract which
does.not terminate until June 26, 1946, we will make no determina-
tion of representatives with respect to these employees at this time.
We find that all the Company's employees in the production, ship-
ping, extract, nicotine, unloading, raw material, and shop helpers'
departments, including gang leaders, but excluding technical em-
ployees (chemists-and laboratory technicians), skilled mechanics,
clerical employees, superintendents, assistant superintendents, fore-
men, assistant foremen, and any other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees,, or effectively recommend such
action, constitute a, unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of, the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which-has
arisen may be resolved by an election by secret ballot.
The Tobacco Workers contends that Local 13011 of District 50 has
not shown a sufficient interest among employees in the appropriate
unit to participate in the election held among them. Local 13011 has
been the, bargaining representative of the employees concerned for a
number of years and its recent contract has only lately expired. On
this basis, we will permit Local 13011 to participate in the election'.
The Machinists does not claim to represent any employees in the unit
found appropriate. We shall make no provision for the Machinists
to appear on the ballot.
Those elegible to vote in -the election shall be all employees in the
appropriate' unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
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 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Tobacco By-Prod-
ucts & Chemical Corporation, Richmond, Virginia, an election by
secret ballot shall be conducted as early as possible, but not later than
670417-46-vol 64-18
258 ' DECISIONS OF NATIONAL 'LABOR RELATIONS''.BOARD
thirty (30) days from the date of this Direction, under the direction
and supervision' of the Regional Director for the Fifth Region, act-
ing in this matter as agent for the National Labor Relations Board,
and,subject to Article III, Sections 10 and 11, of said Rules and Regu-
lations, 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 employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces'
of the United States who present themselves in person at the polls, but
excluding those employees who have since quit or been discharged, for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether they desire to be, r epresented by Tobacco
Workers International Union, affiliated with the 'American Federa-
tion' of Labor, or by Tobacco- Chemical Workers Local 13011, affil-
iated with the United Mine Workers of America, District 50, for the
purposes of collective bargaining, or by neither.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.