Washburn Crosby Co.

National Labor Relations Board - Board Decisions

Sep 23, 1937

3 N.L.R.B. 730 (N.L.R.B. 1937)

In the Matter of GENERAL MILLS, INC., DOING BUSINESS UNDER THE
TRADE NAME OF WASHBURN CROSBY COMPANY and FLOUR, FEED, AND
CEREAL WORKERS FEDERAL UNION No. 19184, and UNITED GRAIN AND
CEREAL WORKERS, LoCAL No. 240.
Case No. R-2966
Flour Milling Industry-Investigation of Representatives : controversy con-
cerning representation of employees : rival organizations ; substantial doubt as
to majority status-Unit Appropriate for Collective Bargaining : production em-
ployees ; history of collective bargaining with employer ; established labor organ-
izations among employees ; community of interest-Election Ordered-Certifica-
tion of Representatives.
Mr. Norman F. Edmonds for the Board.
Locke, Babcock, Hollister, and Brown, by Mr. Louis L. Babcock,
of Buffalo, N. Y., for the Company.
Mr. Alfred Chandler, Jr., of Buffalo, N. Y., for the Flour, Feed,
and Cereal Workers Federal Union No. 19184.
Mr. Joseph Kovner, of Washington, D. C., and Mr. Hugh Thomp-
son, of Buffalo, N. Y., for the United Grain and Cereal Workers,
Local No. 240.
Mr. Boris Shishkin, of Washington, D. C., and Mr. Meyer L. Lewis,
for the American Federation of Labor.
Mr. Paul S. Kuelthau, of counsel to the Board.
DIRECTION OF ELECTION
September 23, 1937
The National Labor Relations Board, having found that a question
affecting commerce has arisen concerning the representation of em-
ployees of General Mills, Inc., doing business under the trade name
of Washburn Crosby Company, at its Buffalo, New York, mill, and
that all of the production employees of General Mills, Inc., at its
Buffalo, New York, mill, except foremen, assistant foremen, millers,
handymen with supervisory duties and authority, clerks, and watch-
men, and excluding elevator employees and stevedores, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the National Labor Relations Act, 49
Stat. 449, and acting pursuant to the power vested in the National
730
DECISIONS AND ORDERS 731
Labor Relations Board by Section 9 (c) of said Act, and pursuant
to Article III, Section 8 of National Labor Relations Board Rules
and Regulations-Series 1, as amended, hereby
DIRECTS that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with General Mills, Inc., an election by secret ballot shall be con-
ducted within a period of ten (10) days after the date of this Direc-
tion of Election, under the direction and supervision of the Regional
Director for the Third Region, acting in this matter as agent of the
National Labor Relations Board and subject to Article III, Section
9 of said Rules and Regulations, Series 1, as amended, among all of
the production employees of General Mills, Inc., at its Buffalo, New
York, mill, on its last pay roll prior to the date of this Direction of
Election, except foremen, assistant foremen, millers, handymen with
supervisory duties and authority, clerks, and watchmen, and exclud-
ing elevator employees and stevedores, to determine whether they
desire to be represented by the Flour, Feed, and Cereal Workers
Federal Union No. 19184, affiliated with the American Federation of
Labor, or the United Grain and Cereal Workers, Local No. 240,
affiliated with the Committee for Industrial Organization, for the
purposes of collective bargaining, or by neither.
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Direction of Election.
SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
September 30, 1937
On September 23, 1937, the National Labor Relations Board,
herein called the Board, issued a Direction of Election in the above
entitled proceeding.
The Board having been advised that the Flour, Feed, and Cereal
Workers Federal Union No. 19184, herein called Union No. 19184,
has been supplanted by Flour Mill Workers, Local No. 21021, and
that the latter is desirous of having its name placed on the ballot
instead of the name of Union No. 19184, and all of the parties to
the proceeding, including Union No. 19184, having entered into a
stipulation on September 29, 1937, agreeing to that change, the Board
hereby amends the Direction of Election issued on September 23,
1937, by striking therefrom the name, "Flour, Feed, and Cereal
Workers Federal Union No. 19184", wherever it occurs and substitut-
ing therefor the name, "Flour Mill Workers, Local No. 21021."
732
LSAME, TITLE
NATIONAL LABOR RELATIONS BOARD
DECISION
AND
,CERTIFICATION OF REPRESENTATIVES
October 22, 1937
STATEMENT OF THE CASE
On June 30,1937, Flour, Feed, and Cereal Workers' Federal Union
No. 19184, herein called the Federal Union, filed a petition with the
Regional Director for the Third Region (Buffalo, New York) alleg-
ing that a question affecting commerce' had arisen, concerning the
representation of the production employees of, the Washburn Crosby
mill of General Mills, Inc., Buffalo, New York, herein called the Com-
pany, and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On July 20, 1937, United Grain
and Cereal Workers, Local No. 240, herein called the United, filed a
similar petition with the Regional Director for the Third Region. On
August 17, 1937, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of the Act, and Article III,
Section 3, of the Rules and Regulations-Series 1, as amended, au-
thorized the Regional Director to conduct an investigation and pro-
vide for an appropriate hearing. The Regional Director duly issued
a notice of hearing to be held at Buffalo, New York, on August 23,
1937, copies of which were duly served upon the Company, the
Federal Union, and the United.
Pursuant to notice, a hearing was held at Buffalo, New York, on
August 23 and 24, 1937, before Irving G. McCann, the Trial Exam-
iner duly designated by the Board. The Board and the Company
were represented by counsel, the Federal Union and the United by
their' respective organizers. Full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded to all parties. The Board has reviewed the
rulings of the Trial Examiner on objections to the introduction of
evidence during the course of the hearing and finds no prejudicial
errors were committed. The rulings are hereby affirmed. After all
the evidence in the case was presented, counsel for the Company
moved to dismiss the case on the ground that no question concerning
representation had l arisen. The, Trial Examiner reserved ruling on
that motion. That motion is hereby overruled. The Trial Examiner
granted counsel for the Company permission to file a brief, and the
brief was subsequently, filed. '
DECISIONS AND ORDERS 733
On September 9, 1937, the Board issued a notice to all the parties
of a hearing to be held before it on September 16, 1937, in Washing-
ton, D. C., for the purpose of hearing argument on the record. Pur-
suant to the notice, arguments were heard by the Board inWashing-
ton, D. C., on September 16, 1937. The Company, the American
Federation of Labor, and the Union were represented at and partici-
pated in the argument.
After examining the record in the case,, the Board concluded that
a question affecting commerce had arisen concerning the representa-
tion of employees of the Company at its Buffalo, New York, mill, and
on- the basis of such conclusion, and acting pursuant to Article III,
Section 8 of said Rules and Regulations-Series 1, as amended, issued
a Directon of Election on September 23, 1937, in which it found
that all of the production employees of the Company at its Buffalo,
New York, mill, except foremen, assistant foremen, millers, handy-
men with supervisory duties and authority, clerks, and watchmen, and
excluding elevator employees and stevedores, constituted a unit appro-
priate for the purposes ' of collective bargaining. Merely for the
purpose of expediting the' election and thereby insuring 'to 'the em-
ployees of the Company at its Buffalo mill the full benefit of their
right to collective bargaining as soon as possible, the Board directed
the election without at the same time issuing a decision embodying
complete findings of fact and conclusions of law.
On September 29, 1937, all of the parties entered into a stipulation
agreeing that the Federal Union had been supplanted by Flour Mill
Workers, Local No. 21021, also affiliated with the American Federa-
tion of Labor. By this stipulation the parties agreed that the name
of Flour Mill Workers, Local No. 21021, should appear on the ballot
instead of the name of the Federal Union. On September 30, 1937,
the Board issued an Amendment to Direction of Election which pro-
vided for the substitution of Flour Mill Workers, Local No. 21021
for the Federal Union on the ballot at the election.
Pursuant to the Board's Direction of Election and the Amend-
ment thereto, an election by secret ballot was conducted on October
1, 1937, by the Regional Director for the Third Region among the
employees of the Company constituting the bargaining unit found
appropriate by the Board. On October 2, 1937, the Regional Di-
rector issued his Intermediate Report upon the secret ballot, which
was duly served upon the parties to the proceeding. No exceptions
to the Intermediate Report have been filed by any of the parties.
734 NATIONAL LABOR RELATIONS BOARD
As to the results of the secret ballot, the Regional Director re-
ported the following :
Total number eligible to vote------------------------------------ 473
Total number of ballots cast------------------------------------ 457
Total number of ballots cast for Flour Mill Workers, Local No.
21021-------------------------------------------------------- 267
Total number of ballots cast for United Grain and Cereal Workers,
Local No. 240------------------------------------------------ 174
Total number of ballots rejecting both of the above unions-------- 10
Total number of void ballots------------------------------------ 2
Total number of challenged ballots------------------------------ 4
Upon the entire record in the case the Board makes the following :
FINDINGS OF FACT
1. THE COMPANY AND ITS BUSINESS
General Mills, Inc., is a Delaware corporation with its general
office in Minneapolis, Minnesota. Before June 1, 1937, the Com-
pany was chiefly a holding company controlling 22 subsidiaries lo-
cated in 14 states of the United States and one in Canada., On June
1, 1937, all of these subsidiaries except Washburn Crosby Company,
Limited, of Port Colborne, Ontario, Canada, Frontier Elevator Com-
pany of Buffalo, New York, and The Pacific Coast Elevator Com-
pany of Portland, Oregon, were dissolved and their business taken
over by the Company, which then became an operating company.
In order to retain and protect the good will inherent in them, the
corporate names of the dissolved subsidiaries are used as trade names
by the Company.
The Company manufactures and sells flour, feed, and cereal prod-
ucts. It maintains sales offices in 73 cities and 30 States of the
United States and the Territory of Hawaii, and in the District of
Columbia.2
To facilitate operations the business has been divided into ad-
ministrative divisions. The mill with which we are concerned here
was formerly the Washburn Crosby Company mill and is located at
Buffalo, New York. It constitutes the Eastern Division in the Com-
pany's administrative set-up. Its business is carried on under the
name, Washburn Crosby Company, under the general policy of the
Company of retaining the names of the dissolved subsidiaries as
trade names. The mill at Buffalo employs approximately 550 per-
sons and is the largest of the Company's plants.
' All of these subsidiaries were wholly owned by the Company except the Star Grain
Company of Chicago, Illinois
2 These are listed in the Ninth Annual Report of General Mills, Inc., for the year
ending May 31, 1937 , Board's Exhibit No. 4. At the hearing, H . B. Kelsey, assistant
comptroller for the Company , testified that these were only the principal sales offices
and that there were others.
DECISIONS AND ORDERS 735
In its Buffalo mill the Company manufactures flour and feed, two-
thirds of which is shipped to points outside the State of New York
to Maine, New Hampshire, Vermont, Massachusetts, Connecticut,
Rhode Island, New Jersey, Pennsylvania, Delaware, Maryland, Vir-
ginia, and the District of Columbia. Of the one-third not shipped to
those States, approximately three-fifths is sold in the State of New
York and two-fifths is exported to South America, Central America,
Europe, and Africa. The approximate cash value of the products of
the Buffalo mill which are shipped out of the State of New York
annually is $15,000,000.
Five per cent of the product of the mill is shipped by boat, some
by truck, but by far the largest proportion by railroad.
The Buffalo mill makes two types of flour, "Gold Medal" and first
clear flour, both for human consumption. It also makes second clear
flour, for use in foundry work and as feed and "middlings" for
animal consumption. The mill at Buffalo also extracts the wheat
germ from the wheat. This germ is sold for human consumption
because of its medicinal properties.
Wheat is the only raw material used in the Buffalo mill. It is
shipped to the mill by rail and water from the western states of the
United States and from Canada. All of the wheat comes from outside
the State of New York. By far the greater proportion is brought
by boat.
All of the wheat used in the Company's Buffalo mill is delivered
first to an elevator owned by the Frontier Elevator Company, a wholly
owned subsidiary of the Company. Grain delivered by boat is lifted
into the bins of the elevator by means of two legs, let down into the
hold, which are equipped with endless belts carrying buckets. In the
bins the grain is tested for quality and then taken to the Company's
mill by means of an endless belt conveyor system. The elevator and
the mill are run as one establishment. The Frontier elevator handles
grain only for the Company's Buffalo mill.
IT. THE ORGANIZATIONS INVOLVED
A. Flour, Feed, and Cereal Workers' Federal Union No. 19184,
Flour , Feed, and Cereal Workers ' Federal Union No. 19184 was a
labor organization affiliated with the National Council of Grain Proc-
essors and Allied Industries and with the American Federation of
Labor . It admitted to membership persons employed in the milling
industry in Buffalo and vicinity. According to a stipulation entered
into by all the parties on September 29, 1937, Flour , Feed , and Cereal
Workers' Federal Union No. 19184 has been supplanted by Flour Mill
Workers, Local No. 21021 , a labor organization affiliated with the
American Federation of Labor.
736 NATIONAL LABOR RELATIONS BOARD
B. United Grain and Cereal Workers, Local No. 240
United Grain and Cereal Workers, Local No. 240, is a labor organ-
ization' affiliated with the Committee for Industrial Organization
admitting to membership persons employed in the milling industry in
Buffalo and vicinity.
III. THE QUESTION CONCERNING REPRESENTATION
In April 1937 the Company announced to its employees that the
company union then existing was to be dissolved because it was
illegal under the Act. Soon thereafter both the Federal Union and
the United started to organize among the employees at the Buffalo
mill.
On May 17, 1937, the Company, for itself and its subsidiaries,
entered'into a contract with the American Federation of Labor recog-
nizing the American Federation of Labor as the representative of all
employees of the Company who are members of the American Federa-
tion of Labor or its affiliated unions and agreeing to recognize it as
the sole collective bargaining agent for the employees of those plants
in which it has a majority.
Thereafter the organizing drive -of the Federal Union proceeded
apace. ' Sometime during June 1937 the Federal Union represented
to the Company that it had enrolled a majority of the employees in
the Company's Buffalo mill. The Company requested the Federal
Union'to'prove its majority, and on June 30, 1937, the Federal Union
filed its petition for investigation by the Board.
In the meantime, the United had also been organizing in the Com-
pany's Buffalo mill. At the hearing it did not claim that it had
enrolled a majority of the employees at the Buffalo mill but did
claim that' a majority of the employees would designate it as their
bargaining agent in an election by secret ballot.
The contention of the Company at the argument before the Board
that the May 17, 1937, contract, mentioned above, bars investigation
by the Board is without foundation. The question of majority rep-
resentation is an issue under that contract and this is a proceeding
to settle that issue.
Neither union introduced sufficient evidence of a majority mem-
bership at the hearing to enable the Board to certify without an
election.' In view of the conflicting claims of the two unions claim-
ing to represent the employees of the Company's Buffalo mill, and
the apparent inability of either to prove at the hearing that it had a
majority membership, we find that a question concerning representa-
tion has arisen in respect to employees of the Company at its Buffalo,
New York, mill.
3 Discussed under Section VI below.
DECISIONS AND ORDERS
IV. THE APPROPRIATE UNIT
737
The unions agreed that all production employees at the Buffalo
mill, exclusive of those working in a supervisory capacity, consti-
tuted a unit appropriate for the purposes of collective bargaining.
They did not intend to include the employees in the Frontier eleva-
tor, which is operated as an integral part of the Buffalo mill.
The Company contended that all of its production employees in
Buffalo, exclusive of supervisory employees, but including the em-
ployees in the Frontier elevator, constituted an appropriate unit.
The Frontier Elevator Company apparently has no employees.
The men who work in the boats unloading grain and those who work
in the elevator itself are all paid by the Company and are carried
on the pay roll of the Buffalo mill. The duties of the men who work
in the elevator are much the same as those of the men working in
the mill itself. The elevator is a separate building connected to the
mill only by the overhead conveyor conduit through which the grain
is taken to the mill.
The International Longshoremen's Association in Buffalo is organ-
ized 'into 'two local unions, one of which embraces the stevedores,
and the other, the elevator employees. The International Longshore-
men's Association claims to have enrolled all of the stevedores and
elevator' employees of the Company in Buffalo in its local unions.
Since 1933, the International, Longshoremen's Association has had
a contract with the Frontier Elevator Company which by its terms
covered all persons employed in the elevator as well as those engaged
in work on the boats while they are being unloaded. This is the
standard contract which the International Longshoremen's Associa-
tion has with all elevator companies in Buffalo. The .contract with
the Frontier Elevator Company was limited by an oral understand-
ing excluding from the contract the men employed in the elevator,
and confining its coverage to the stevedores. In the spring of 1937
the oral understanding was terminated and the full terms of the
contract were put into effect as of April 13, 1937. At the present
time, therefore, the International Longshoremen's Association is
bargaining for the elevator employees, and they are covered by the
contract which it has with the Company.
The employees of all elevator companies in Buffalo deal with their
respective employers through the International Longshoremen's As-
sociation. Although the situation is slightly different in these com-
panies in that no mills are operated in connection with their eleva-
tors, there is no reason why the same type of organization should
not prevail in all elevators.
738 NATIONAL LABOR RELATIONS BOARD
Since collective bargaining for the elevator employees has been
carried on through the International Longshoremen's Association
and neither of the unions involved here desired to include the eleva-
tor employees in the unit, they will be excluded.
The stevedores, employed by the, Company in Buffalo also have
dealt with the Company through their own organization. They will
also be excluded from the unit embracing the employees of the mill.
The millers are in charge of, a gang and have supervisory duties.
The handymen are employed in a semi-supervisory capacity and
have the power to recommend hiring and firing. ^ The foremen and
assistant foremen also are employed in a supervisory capacity and
have the power to recommend hiring and firing. Those employees
will be excluded from the unit on that account.
The watchmen are a separate group of employees, who are gener-
ally foremen who have been retired from active service in the mill.
Neither, union desired to include them in the unit, and they will be
excluded.
The clerks are confidential, employees of the Company. Their
duties are like those of office employees. They are not `engaged in
production work. Neither. union desired to include them in the
unit, and they will be excluded.
The production employees of the Company at its Buffalo mill, with
the exclusions mentioned above, have common interests and prob-
lems. They have evidenced their desire to be included in one unit
by joining unions which admit all of them to membership on an
industrial basis. ,
In the light of the facts above set forth, and in order to insure to
the employees the full benefit of their right to collective bargaining,
we find that the production employees of the Company at its Buffalo,
New York, mill, except foremen, assistant foremen, millers,.handy-
men with supervisory duties and authority, clerks, watchmen, eleva-
tor employees,, and stevedores, constitute a unit appropriate for the
purposes of collective, bargaining.
V. THE EFFECT OF THE QUESTION OF REPRESENTATION ON COMMERCE
The question concerning representation which has arisen, occurring
in connection with the operations of the Company described in Sec-
tion I above, has a close, intimate and substantial relation to trade,
traffic, and commerce, among the several -States and with foreign
countries, and tends to lead to labor disputes burdening and
obstructing commerce, and the free flow of commerce.
VI. QUESTION OF MAJORITY
The Federal Union submitted some 355 cards alleged to have been
signed by the Company's employees at its Buffalo mill. These cards
DECISIONS AND ORDERS 739
were checked against the Company's pay roll for the period ending
August 14, 1937, and 43 of them could not be identified as employees
of the Company. Of the 312 which were found on the pay roll,.20
had also signed cards of the United and cannot therefore be' said
to have expressed , their preference for 'either union. Of the 292
remaining, 79 were in the nature of- union record cards with, a space
at the top for the name but no,place for a signature.. Of these 79,
22 were obviously unsigned since the person's name was printed rather
than written and these therefore must be deducted from the mem-
bership list. Of the same 292 cards, 213 were green slips signed by
persons applying for membership in the Federal Union. Twenty-
two of those slips were signed by persons not in the, unit defined
above. If the deductions indicated above are made,, the Federal
Union is left with applications signed by 248 persons in the appro-
priate unit, which embraces at least 501 employees on the August 14,
1937, pay roll.
When, in addition to the above, it is considered that a substantial
number of those cards were undated, it is apparent that the Board
could not certify the Federal Union as the representative of the
majority of the employees in the appropriate unit on the basis of this
evidence.
The United submitted only 89 cards alleged to have been signed
by employees of the Company and made no claim to majority
membership.
Since the Board found it impossible to determine the desires of
a majority of the employees in the appropriate unit from the evidence
submitted at the hearing, an election was ordered.
CoNcLusIoNS of LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of the Company at its Buffalo, New York,
mill, within the meaning of,Section 9 (c) and Section 2, subdivisions
(6) and (7) of the National Labor Relations Act.
2. The production employees of the Company at its Buffalo, New
York, mill, except foremen, assistant foremen, millers, handymen with
supervisory duties and authority, clerks, and watchmen, and exclud-
ing elevator employees and stevedores, constitute an appropriate
unit for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
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, 49 Stat. 449, and pursuant to Article III, Section 8 of
740 NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board Rules and Regulations-Series .1,
as amended,
IT'IS ' HEREBY CERTIFIED that Flour Mill Workers, Local No. 21021,
has been selected by a majority of the production employees' of
General Mills, Inc., at its Buffalo, New York, mill, except foremen,
assistant foremen, millers, handymen with supervisory duties and
authority, clerks, and watchmen, and excluding elevator employees
and stevedores, as their representative for the purposes of -collective
bargaining, and that; pursuant to the provisions of Section 9 (a) of
the Act, Flour Mill Workers, Local No. 21021, is,the exclusive repre-
sentative of all such employees for the purposes of collective bargain-
ing in respect to rates of pay, wages, hours of employment, and
other conditions of employment. '