Burrus Feed Mills

National Labor Relations Board - Board Decisions

Jun 30, 1947

74 N.L.R.B. 426 (N.L.R.B. 1947)

In the Matter of TEX-O-KAN FLOUR MILLS COMPANY D/B/A BuRRUs
FEED MILLS, EMPLOYER' and CONGRESS OF INDUSTRIAL ORGANIZA-
TIONS, PETITIONER
Case No. 16-R-2221.-Decided Jnne 30, 1947
Mr. Alto P. Cervin, of Dallas, Tex., for ,the Employer.
Mr. W. A. Ford, of Garland, Tex., for the Petitioner.
Cllr. Irving D. Rosenman, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
Upon an amended petition duly filed the National Labor Relations
Board on April 18, 1947, conducted a prehearing election among the
employees of the Employer in the alleged appropriate unit, to deter-
mine whether or not they desired to be represented by the Petitioner
for the purposes of collective bargaining.
At the close of the election a Tally of Ballots was furnished the
parties. The Tally shows that there were approximately 50 eligible
voters and that 51 ballots were cast, of which 40 were for the Petitioner,
8 were against the Petitioner, and 3 were chall enged.
Thereafter a hearing was held at Dallas, Texas, on May 14, 1947,
before Elmer Davis, hearing officer. At the hearing the Employer
moved to dismiss the petition on the ground that it was not engaged
in commerce within the meaning of the Act. The hearing officer re-
served ruling on the motion for the Board. For reasons stated in
Section I, infra, the motion is denied. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Tex-O-Kan Flour Mills Company, a Delaware corporation, operates
three feed mill plants at McKinney, Dallas, and Fort Worth, Texas,
1 The Employer's name appears above as amended in accordance with testimony at the
hearing.
74 N. L. R. B., No. 76.
426
TES-O-KAN FLOUR MILLS COMPANY 427
respectively, under the trade name of Burrus Feed Mills. We are
herein concerned with its plant at McKinney, where it is engaged in
the production of animal, livestock, and poultry feed. During a 12-
month period the Employer purchases processed raw materials from
points outside the State of Texas for use at the McKinney plant valued
at approximately $175,000, which represents approximately 5 percent
of the materials used at this plant. During a similar period the Em-
ployer produces feed products valued at approximately $3,500,000,
of which approximately 5 percent represents shipments to points out-
side the State.
We find, contrary to the contention of the' Employer, that it is en-
gaged, at its McKinney, Texas, operation, in commerce within the
meaning of the National Labor Relations Act?
H. THE ORGANIZATION INVOLVED
The i etitioner is a labor organization claiming to represent em-
ployees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of its production and maintenance em-
ployees, until the Petitioner has been certified by the Board in an
appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
1V. THE APPROPRIATE UNIT
The parties generally agree that the appropriate unit for bargaining
purposes should consist of all production and maintenance employees,
including truck drivers, but excluding office and clerical employees,
shipping clerks, feed mill foremen, elevator foremen, superintendents,
and supervisory employees. The sole disagreement between the parties
concerns the Employer's two night watchmen, two car checkers and
the feed mix and blend department foreman,3 all of whom the Peti-
tioner would include and the Employer would exclude from the unit.
Night watchmen: The Employer's 2 night watchmen have no mon-
itorial functions. They are engaged primarily in protecting the
2 See Matter of Burrus Food Mills, Dallas Plant, 59 N L . R B. 425, in which the Board
asserted jurisdiction over the Dallas Plant of the Employer where operations similar to
those of the McKinney Plant are conducted.
3 The challenged ballots were those of the two car checkers and the feed mix and blend
department foreman.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARI>
feed mill plant property after working hours. In the course of
their work they are required to punch hourly the clocks located at
the 11 stations throughout the mill grounds. It is also their func-
tion to open and close the (Yates for trucks entering or leaving after
hours, but they are not required to check the merchandise in these
trucks. Their duties are thus purely custodial in nature, and we
shall, in accordance with our customary practice, include them in the
unit.4
Car Checkers: The two employees in this classification are engaged
in checking feed as it is being loaded into railroad box cars by
laborers called hand truckers. It is their responsibility to see that
the loading orders are properly filled. While checking the feed,
they also assist in unloading the hand trucks and in stacking the
feed in the box cars. The car checkers are paid only 5 to 7 cents
more per hour than the hand truckers, and have no authority to
hire, discharge, or effectively recommend any change in the status
of hand truckers. In view of the foregoing and on th'e entire
record, we are of the opinion that these employees are riot super-
visory within our customary definition of the terns. ' We shall,
therefore, include them.5
Feed mix and blend department foreman: This employee super-
vises five men engaged in the mixing of livestock and poultry feed
in the feed mix and blend department. He has access to the vari-
ous formulas used by the Employer in the making 'of feeds. It is
his duty to see that the formulas are followed and that his depart-
ment furnishes a continuous flow of the mixed feeds for further
processing. He is paid approximately 20 cents more per hour than
the men he supervises and is held responsible by the Employer for
the complete handling of this department. Although he works
along with his crew,6 he is in complete charge of his department,
and has, at least on two occasions, effectively recommended the
discharge or transfer of employees therein: In view of the fore-
going, we believe that this employee possesses supervisory authority
within our customary definition of the term. Accordingly, we shall
exclude him from the unit.'
We find that all production and maintenance employees at the
McKinney, Texas, plant of the Employer, including truck drivers,
" Matter of Domestic Engine & Pump Company, 70 N. L. R B. 1263; Matter of Cameron
Machine Company, 67 N L. R B. 1066
5 Matter of Aga? Packing it Provision Corporation, 62 N. L. it. B. 358; Matter of Maui
Pineapple Company, Limited, 60 N. L R B 401.
Q The record indicates that this individual has been instructed by the plant superintendent
not to spend so much of his time doing physical labor and to have his crew do mole of
the work
7 Matter of Sequin Milling Company, 65 N L. R B. 66.
TEX-O-KAN FLOUR MILLS COMPANY 429
night watchmen , and car checkers , but excluding office and clerical
employees , shipping clerks, feed mill foremen , elevator foremen, the
feed mix and blend department foreman , superintendents , and all
other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, 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. TIIE DETERMINATION OF REPRESENTATIVES
The results of the election held before the hearing show that the
Petitioner has secured a majority of the valid votes cast, irrespective
of the counting of the three challenged ballots. Under these cir-
cumstances, we shall certify the Petitioner as the collective bar-
gaining representative of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that Congress of Industrial Organizations has
been designated and selected by a majority of the production and
maintenance employees at the McKinney, Texas, plant of the Em-
ployer, including truck drivers, night watchmen, and car checkers, but
excluding office and clerical employees, shipping clerks, feed mill fore-
mnen, elevator foremen, the feed mix and blend department foreman,
superintendents, and all other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, as their
representative for the purposes of collective bargaining, and that, pur-
suant to Section 9 (a) of the Act, the said organization is the exclusive
representative of all such employees for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of employment, and
other conditions of employment.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Certification of Representatives.