United States Sugar Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1945

61 N.L.R.B. 215 (N.L.R.B. 1945)

In the Matter of UNITED STATES SUGAR CORPORATION and BROTHERHOOD
OF LocoMOTIvE FIREMEN & ENGINEMEN
Case,No. 10-R-1306.-Decided March 31, 1945
Mr. Fred C. Sikes, of Clewiston, Fla., and Mr. Rufus G. Poole, of
Washington, D. C., for the Company.
Mr. L. E. Whitler, and Messrs. Harold C. Heiss, Russell B. Day, and
W. W. Openlander, of Cleveland, Ohio, for the Brotherhood.
Mr. Henry Lutes, of Clewiston, Fla., for the A. F. L.
Mr. Julius G. Serot, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
0
Upon a petition duly filed by the Brotherhood of Locomotive Fire-
men & Enginemen, herein called the Brotherhood, alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of United States Sugar Corporation, Clewiston, Florida,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before George S.
Slyer, Trial Examiner. Said hearing was held at Clewiston, Florida,
on January 11, 1945. The Company, the Brotherhood, and Sugar Mill
Workers Local Union No. 23211, FLU-AFL, affiliated with the Ameri-
can Federation of Labor, herein called the A. F. L., 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. During the hearing, the Company moved to
dismiss the petition, and the Trial Examiner referred this motion to
the Board for determination. For the reasons set forth in Section
III, infra, this motion is hereby granted. The Trial Examiner's rulings
made at the hearing are free from prejudicial error, and are hereby
affirmed. All parties were afforded opportunity to file briefs with
the Board.
61 N. L. R. B., No. 23.
215
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record ^n the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
United States Sugar Corporation is a Delaware corporation, licensed
to transact business in the State of Florida. It is engaged in planting,
cultivating, and harvesting sugar cane and extracting raw sugar there-
from; and in planting, cultivating, and harvesting lemon grass, and
extracting oils therefrom. During the fiscal year ending June 30,
1944, the value of raw materials used by the corporation for mer-
chandise, maintenance repair, and operating supplies, was in excess
of $750,000, 90 percent of which was shipped to its plant at Clewiston,
Florida, from points outside the State. During the same period, the
Company sold 59,002 tons of raw sugar, all of which it shipped to a
point outsidepthe State, and 4,139,000 gallons of black strap molasses.
The Company also manufactured an unstated quantity of cattle feed,
all of which was sold within the State of Florida. In connection
with its activities, it maintains 12 plantation villages, at each of which
it operates a retail store. At the time of the hearing, the Company
was engaged in constructing an addition to its plant to be used for
the processing of sweet potatoes into starch.
. The Company admits that its operations affect commerce within
the meaning of the National Labor Relations Act and we so find.
H. THE ORGANIZATIONS INVOLVED
Brotherhood of Locomotive Firemen & Enginemen, unaffiliated, is
a labor organization admitting to membership employees of the
Company.
Sugar Mill Workers Local Union No. 23211, FLU-AFL, affiliated
with the American Federation of Labor,-is a labor organization ad-
mitting to membership employees of the Company.
III. THE ALLEGED APPROPRIATE UNIT
'The Brotherhood seeks a unit composed of locomotive engineers
and firemen; the Company and the A. F. L. contend that, in view of
the history of collective bargaining on a plant-wide basis, the unit
sought is inappropriate.
The Company operates 469 freight cars and 7 locomotives on 25
miles of standard guage track. This railroad is wholly intraplant,
the Company's engine crews %perating solely within the limits of its
2 yards, which are connected by main line railroads whose crews
operate all trains between the yards. Although the record is not clear
UNITED STATES SUGAR CORPORATION 217
on this point, the Company apparently employs 9 engineers and 2
firemen, in addition to conductors and brakemen.' The duties of the
engineers and the firemen are those usual to yard engine crews. They
operate the locomotives in accordance with instructions from the
switchmen on the ground, building trains and delivering them to the
interchange points where main line railroads take over, and also
receiving trains from the main lines and delivering the various cars
to their proper destinations within the yards. The loaded trains
operate on a regular schedule. Apparently, the only difference be-
tween the duties of these engine crews and those of yard crews in any
other type of plant or railroad arises out of the need for washing some
of the sugar cane after the cane has been loaded into the freight cars.
The engineers shunt a cut of cars under a wash rack and each car is
allowed to stand under the water until the switchman signals the
engineer to proceed.
During the slow season, usually between April and November, the
Company affords these engineers and firemen an opportunity to work
in its other production departments, and the record shows that from
time to time several of these employees have availed themselves of such
opportunity. During the 1944 slow season, two engineers and two
firemen worked in departments other than the railroad department.
The Company's engineers are thoroughly experienced, all but one
of them having been trunk-line engineers prior to their employment
by the Company.- All were required to undergo the physical, mechan-
ical, and air-brake examinations given by trunk-line roads as a condi-
tion precedent to their present employment, although the record indi-
cates that, at times, the Company was not as stringent as the trunk
lines and employed men who could not meet the physical requirements
to the satisfaction of the trunk lines; all of the engineers are appar-
ently qualified by experience and skill to work on trunk lines. All are
members of the Brotherhood, many of long standing.
On the other hand, the Company's railroad department is an integral
part of the plant and its operations are a necessary part of the Com-
pany's production activities. These engineers and firemen enjoy the
same vacation and bonus policies as the other production and mainte-
' One of the en gineer,; is permanently assigned as an office clerk, although he is rated as
third in seniority among the Company 's engineers The senior of the 2 firemen is perma-
nently assigned as a yard clerk
The Field Examiner reported that the Brotherhood submitted 7 authorization cards
dated in August 1944, all of which bore apparently genuine original signatures The
A F L submitted dues records for the month of November 1944, containing the names of
7 employees in the alleged appropriate unit , and also relies upon its contract to show its
interest in these proceedings
2 One engineer was promoted by the Company from the position of a fireman to that of
engineer . Any one of the Company's emploN ees may become a fireman after the satis-
factory completion of a week's training period, but the Company will not promote a fireman
to the position of engineer until he has had at least 3 years of experience as a fireman.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nance employees and the record indicates a community of interest
among all of the Company's production and maintenance employees.
It is apparent from the foregoing that, absent the history of collec-
tive bargaining, the respective considerations for and against the segre-
gation of the craft group in question from the plant-wide bargaining
unit are equally balanced.
We are of the opinion, however, that the bargaining history in this
case is determinative of the issue.
As a result of an election conducted by the Board in October 1942,
pursuant to a consent election agreement, the A. F. L. was established
as the exclusive bargaining representative for the Company's pro-
duction and maintenance employees.3 Apparently because of a delay
occasioned by the necessity for War Labor Board approval of pro-
posed wage scales, the first collective bargaining agreement was not
executed until May 1943, but it was made retroactive to October 1942.
In October 1943, and again in October 1944, new contracts were ex-
ecuted.4 Under all the three contrasts the A. F. L. represented the
engineers and firemen as part of the production and maintenance
employees.
Prior to the 1942 consent election, the engineers and firemen' dis-
cussed among themselves the then approaching election. With full
knowledge of the proposed establishment of a plant-wide bargaining
unit, and fully aware of the fact that the ballot was to include only the
names of the A. F. L., these employees lodged no protest against the
proposed unit and made no request that the Brotherhood appear on
the ballot. They voted in the election. Nor was any protest forth-
coming when the original contract was executed in 1943. Although
refusing to cooperate in the negotiations for the second contract, these
employees raised no objection to the continuance of the plant-wide
unit as their bargaining representative. Indeed, the first articulate
objection to the exclusive agency of the A. F. L. was not made until
as late as August 7, 1944. On that date, a committee consisting of two
engineers and two switchmen called upon the Company and orally
requested that the Brotherhood be recognized as the exclusive bargain-
ing representative for the Company's locomotive engineers, firemen,
and switchmen. When that request was refused, the instant petition
was filed. The petition itself is the first request for an exclusively craft
I 'The Field Examiner's report shows that as of October 31 , 1944 , there were 452 pro-
duction and maintenance employees included within the plant -wide unit and that the
A. F L. submitted dues records indicating that 274 of these employees were members of
that union
4 Although the Company and the A F. L. both urge the October 1944 contract ( presently
in existence ) as a bar , they apparently do not contend that the contract itself is a bar,
but rather , that the unit described in that contract is the only appropriate unit. At any
rate, since this petition was filed prior to the execution of the present contract, the agree-
ment itself is not a bar.
UNITED STATES SUGAR CORPORATION 219
unit, the oral request having specified switchmen as among the mem-
bers of the proposed unit.
Although there is some indication of dissatisfaction among the
engineers and firemen prior to their request for separate representa-
tion,5 the record contains many instances of their participation in the
bargaining activities of the A. F. L. Thus, they shared in a raise of
pay obtained through the efforts of the A. F. L., and participated in
a strike of all the Company's employees which resulted in another in-
crease, in which the engineers and firemen shared. At least four of
the engineers voluntarily joined the A. F. L.6 While it is true that
the engineers and firemen, as a group, refused to nominate a shop
steward to represent them on the A. F. L.'s grievance committee, this
committee did handle at least two grievances on behalf of individual
firemen and engineers. Moreover, one of the engineers is a member
of that committee, although he does not represent the other engineers,
having been selected by the production and maintenance employees
working in a section of the plant where he is the only engineer.
It is noteworthy that throughout the plant's bargaining history
many of the engineers, if not all, were members of the Brotherhood.
In view of all the facts of this case, and in the interest of stability
in collective bargaining relations, we shall not disturb the unit estab-
lished and maintained in accordance with the will of a majority of the
Company's employees and with the knowledge and participation of
the engineers and firemen.7 In reaching our conclusion, we have con-
sidered those cases previously before the Board wherein we held that,
under given circumstances, a craft unit may be severed from an estab-
lished plant-wide unit." The factors which we considered decisive in
those cases are not present here.
Accordingly, we find that the unit sought by the Brotherhood is
not an appropriate unit for the purposes of collective bargaining be-
tween the Company and its employees.
5 They refused to cooperate with the A. F L. in the negotiations for the second and
third contracts and in the preparation of the A. F L.'s bylaws and constitution. The
testimony also shows that during the course of informal talks with the supervisors of the
railroad department , they indicated , from time to time , their displeasure with the seniority
provisions of the contracts
6 At one time , several of the engineers who belonged to both the A. F. L. and the
Brotherhood sought to drop their A. F L. membership but were prevented from so doing
by reason of a maintenance -of-membership clause in the contract Only the last of the 3
contracts is in evidence This agreement , executed after the petition herein was filed,
contains a maintenance -of-membership clause and , apparently , the prior agreements also
contained such clause
7 See Matter of American Can Co , 13 N. L R B 1252; Matter of The Procter & Gamble
Manufacturing Company, 52 N L. R B 661, Matter of The Columbus Bolt Works Com-
pany, 56 N L R B 1517.
s Matter of Moore Drop Forging Company , 60 N. L. R B. 494 ; Matter of National
Automatic Tool Company, 60 N. L R B 565, Matter of Goodyear Tire it Rubber Com-
pany, 55 N. L it. B. 918, Matter of General Electric Company (Lynn River Works and
Everett Plant), 58 N. L. It. B 57.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE ALLEGED QUESTION CONCERNING REPRESENTATION
Since, as we have held in Section III, above, the bargaining unit
Sought to be established by the petition is inappropriate for the
purposes of collective bargaining , we find that no question has been
raised concerning the representation of employees in an appropriate
bargaining unit. Accordingly, we shall dismiss the petition.
ORDER
Upon the basis of the above findings of fact, the National Labor
Relations Board hereby orders that the petition for investigation and
certification of representatives filed by the Brotherhood of Locomo-
tive Firemen & , 'Enginemen be, and it hereby is, dismissed.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.