National Oats Co.

National Labor Relations Board - Board Decisions

Mar 26, 1951

93 N.L.R.B. 939 (N.L.R.B. 1951)

NATIONAL OATS COMPANY 939
Association of Broadcast Engineers & Technicians (Omaha Chap-
ter) ? If the professional employee in voting group (b) votes
"yes" to the first question, indicating his wish to be included in a unit
with the nonprofessional employees, he will be so included. His
vote on the second question will then be counted together with the
votes of the nonprofessional voting group (a) to decide the repre-
sentative for the engineering and technical unit. If, on the other
hand, the professional employee votes against inclusion, he will not
be included with the nonprofessional employees, and his vote on
the second question will not be counted.
Our unit determination is based, in part, then, upon the ballot of
the professional employee. However, we now make the following
findings in regard to the appropriate unit :
1. If the professional employee votes for inclusion in the unit with
the nonprofessional employees, we find that the following employees
will constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act:
All radio engineers and technicians who operate and/or maintain
those facilities of the engineering department of the Employer's Tulsa,
Oklahoma, station, used in transmitting, converting, and/or conduct-
ing audio, FM, video, and/or radio frequencies for use in broadcast,
rebroadcast, audition, rehearsal, recording, and/or "on the air" play-
back, including the professional employee, but excluding all other em-
ployees, and supervisors.
2. If the professional employee does not vote for inclusion in the
unit with the nonprofessional employees, we find the unit set forth
above to be appropriate, with the exclusion, however, of the profes-
sional employee.
[Text of Direction of Elections omitted from publication in this
volume.]
NATIONAL OATS COMPANY and AMERICAN FEDERATION OF GRAIN
MILLERS, LOCAL 167, AFL, PETITIONER. Case No. 14-RGi-1278.
March 26, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Tabor Relations Act, a hearing was held before Milton O. Talent,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.'
IIn accordance with a stipulation of the parties, the testimony of J. J. Mooney is
stricken from the record. The motion of the International Union of Operating Engineers,
Local 149, AFL, to correct certain minor errors in the record is granted and the record
is hereby amended accordingly.
93 NLRB No. 156.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Reynolds and Mur-
dock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa:
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit consisting of all production em-
ployees, firemen, and oilers at the Employer's East St. Louis, Illinois,
plant, excluding maintenance carpenters and millwrights, the licensed
engineer, professional, office, and clerical employees, guards, and super-
visors as defined in the Act. In the alternative, the Petitioner seeks
the same unit with the additional exclusion of oilers. The Employer,
the Intervenor Engineers, and the Intervenor Longshoremen contend
that the unit sought by the Petitioner is inappropriate upon the
ground that it would merge employees of different skills into one unit,
contrary to the bargaining history at the plant. In addition, the
Intervenors Engineers and Longshoremen contend that certain his-
toric bargaining units described below are appropriate. The Inter-
venor Carpenters takes no position in the matter.
At its East St. Louis plant, which is the only plant involved in this
proceeding, the Employer is engaged in the manufacture and sale of
feed for poultry and livestock. It also stores grain in its capacity as
a public warehouseman. The feed is manufactured by grinding, grad-
ing, and screening grain, grain byproducts, and byproducts of other
industries which are blended, in accordance with various formulae,
into the final product. Although the processes involved are not the
same as those used in the "wet-milling industry" 3 the processes are,
to a large degree mechanized, with about 95 percent of production on
a continuous process basis.
Among the production and maintenance employees sought to be
represented by the Petitioner are approximately 34 laborers and 12
employees classified as operators. The degree of skill required of the
2 The International Union of Operating Engineers , Local 149, AFL, hereinafter called
the Intervenor Engineers , and the United Brotherhood of Carpenters and Joiners of
America, Local 169, AFL, hereinafter called the Intervenor Carpenters , were allowed to
intervene in this proceeding on the basis of their contractual relationship with the Em-
ployer The International Longshoremen 's Association , Local 1642 , AFL, hereinafter
called the Intervenor Longshoremen , was allowed to intervene in this proceeding on the
basis of a sufficient showing of interest in the unit for which representation is sought.
3 Compare , Corn Products Refining Company , 87 NLRB 187
NATIONAL OATS COMPA\"Y 941
operators as contrasted with the laborers varies from that required of
the operator of the bag sewing machine to that required for operation
of more complicated machines.4 Although an operator can be trained
to operate the more complicated machines in a year to 14 months, the
Epiployer was able to fill only 4 of the 12 operator positions by ad-
vancing qualified men from the laborers' force in accordance with its
policy. At the present time, there are laborers training for opera-
tors' positions. Ordinarily, all employees work the same hours, but,
when the occasion so demands, a night shift is instituted. On such
occasions, the day oiler takes the position of the licensed engineer, and
an operator takes the position of the oiler. The employee force is
supervised by a mill superintendent who is in charge of all plant
operations; an elevator superintendent, who supervises only the em-
ployees in the grain elevator; and an assistant superintendent, who
supervises all other employees.
Although there has been no previous Board determination of the
appropriate unit for the purposes of collective bargaining,5 the Em-
ployer has bargained since 1037 with the Intervenor Carpenters as
representative of the carpenters and millwrights; with the Intervenor
Engineers as representative of the operators, two operating foremen,
an oiler, and a licensed engineer; and with the Petitioner's prede-
cessor 6 as representative of the laborers.7
Except for the proposed exclusion of the licensed engineer, which
is discussed hereinafter, the unit sought by the Petitioner is an over-
all production and maintenance unit, in which the historic unit of
operators would be merged with the historic unit of laborers now rep-
resented by the Petitioner, and from which the craft group of car-
penters and millwrights would be excluded." The over-all unit thus
sought is of the type which the Board has found appropriate for the
4 The laborers are paid $1 . 10 per hour and the operators are paid $1 . 25 per hour.
A consent election resulted in the certification of the Intervenor Engineers for their
contract unit on May 9, 1949. (Case No. 14-RC-666 .) Three elections for the purpose
of union-shop authorization have been held. ( Cases Nos 14-UA-318, 14-UA-554, and
14-UA-3000. ) These elections having been conducted upon the basis of units stipulated
by the parties and not upon a Board determination of the merits , are not binding upon
the Board . Illinois Cities Water Company , 87 NLRB 109.
8 The laborers ' unit was previously represented by the Elevator and Feed Store Employees,
Local 1123 , affiliated with the International Hod Carriers Building and Common Laborers
of America , AFL. By an agreement executed on March 28, 1950, Local 1123 assigned,
and the Petitioner accepted , its rights , duties , and the contract as bargaining representa-
tive for the laborers' unit.
4 The Employer 's contracts Ni ith the Petitioner and the Intervenor expired on December
31, 1950 , and the Employer ' s contract with the Intervenor Carpenters will expire on June
30, 1951. Seniority has been established by the contracts on a departmental basis within
the contract units.
8 The Board has generally excluded from production and maintenance units craft groups
such as the carpenters and millwrights here excluded where they are already represented
on a craft basis and no union seeks their inclusion , G G Mayrose, 89 NLRB 959. Cf.
Calumet and Hecla Consolidated Copper Company, 86 NLRB 126.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining." In view, therefore, of the common
supervision, general working conditions, and the interchange of em-
ployees between the contract units, we conclude that a single unit
including all production and maintenance employees at the Employer's
East St. Louis, Illinois, plant, excluding carpenters and millwrights,
guards, and supervisors 10 as defined in the Act, may be appropriate.
As regards the requested exclusion of the licensed engineer from the
production and maintenance unit sought by the Petitioner, the record
indicates that the work of the licensed engineer is integrated with that
of other production and maintenance workers 11 and that the oiler
interchanges with the engineer on night shifts. Under the circum-
stances, we find that there is no basis for excluding the licensed engi-
neer from the production and maintenance group.
Although, as indicated above, an over-all production and main-
tenance unit at the Employer's East St. Louis plant may be appro-
priate in view of the separate bargaining history for the laborers' and
operators' units, respectively, we find that the requested merger of the
laborers' unit and the operators' unit should not be permitted without
first permitting the latter group an opportunity, by means of a sepa-
rate election, to express its desires on the question .12 Since the Peti-
tioner has failed to establish the necessary showing of interest among
the group which it seeks to merge with its present unit of laborers,
we shall dismiss the petition, without prejudice to the filing of a new
petition at such time as the required showing of representation can
be made.13 On the other hand, because the Intervenor Longshoremen
seeks to represent the employees in the historical laborers' unit, and
has made an adequate showing of interest therein, we shall direct an
election for that unit and shall allow the Petitioner a place on the
ballot.
We find that all laborers at the Employer's East St. Louis, Illinois,
plant, excluding all office and clerical employees, guards, and super-in
"The Board has previously found over -all production and maintenance units to be appro-
priate in plants similar to that involved in this proceeding Omar, Incorporated, 75
NLRB 1224. Meridian Grain & Elevator Company , 74 NLRB 900 ; Tex-O -Ken Flour Mills
Company, 74 NLRB 426, El Campo Rice Milling Company , 74 NLRB 927 ; Coopersville
Cooperative Elevator Co , 73 NLRB 480 , Ralston Purina Company, 48 NLRB 840
11 The recoi d shows that the operating foremen do not have the authority to hire, promote,
discharge , or discipline employees or the power effectively to recommend such action
However , the record does not disclose whether or not the operating foremen responsibly
direct the work of other employees or are in charge of operations in the absence of the
plant superintendent and the assistant supeuntendent For this reason we shall make
no determination with respect to the exclusion or inclusion of these employees at this
time Cf Union Bits Lines, Inc, 85 NLRB 107. Compare with Flour Mills of America,
Inc , d/b/a Valuer & Spies Milling Company , 78 NLRB 324
11 The licensed engineer is responsible not only for the maintenance of the heating and
sprinkling systems throughout the plant , but also for the production of power and steam
which is used in making feed pellets
12 New Jersey Brewers Association , 92 NLRB 1404 ; J R Reeves and A . Tetchert &
Sons, Inc, 89 NLRB 54, Illinois Cities Water Company, 87 NLRB 109
11 Illinois Cities Water Company , supra, footnote 12
JACKSONVILLE PROCESSING CORPORATION 943
visors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Election omitted from publication in this
volume.]
JACKSONVILLE PROCESSING CORPORATION and INDUSTRIAL UNION Or
MARINE AND SHIPBUILDING WORKERS OF AMERICA, LOCAL 32, CIO,
PETITIONER . Case No. 10-RC-933. March 06, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before James W. Mackle,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.,-
Upon the entire record in this case, the Board finds :
1. The Employer, a Florida corporation,2 is engaged solely in the
production of naval stores (gum resin and turpentine). The raw
material used is oleoresin, gum from living pine trees, which is
brought or shipped to the Employer's plant, known as a central still,
by the gum farmers who take it from the trees. Sixty percent of the
oleoresin received by the Employer is processed for and on account of
gum farmers. The Employer buys the remaining 40 percent from
farmers, processes it, and sells the resulting gum rosin and turpentine
on its own account.
During the fiscal year ending March 31, 1950, the Employer pur-
chased supplies valued at about $82,000, of which $6,000 represents
supplies shipped to the Employer from outside Florida. The value
of all oleoresin delivered to the Employer and processed by it was
about $1,127,593. Of this, $50,721 represents the value of oleoresin
shipped to the Employer from outside Florida.
IAt the hearing, the Employer moved to dismiss the petition upon the grounds that (1)
the Petitioner was not in compliance with Section 9 (f) (B) (2 ) of the Act and therefore
no question of representation exists within the meaning of Section 9 (c) (1) of the Act;
(2) the Employer is not engaged in commerce within the meaning of the Act , and (3)
the employees involved are employed as agricultural laborers within the meaning of the
Act We have repeatedly held that proof of compliance is a matter of administrative
determination, not litigable by the parties. Further, we are satisfied that the Petitioner
has fully complied with the filing requirements of the Act Accordingly, the motion is
denied with respect to the first ground. W. R. Wrape Stave Company , hae., 90 NLRB
No 150
For the reasons given below in paragraphs numbered 1 and 4 , respectively , the motion is
denied with respect also to the second and third grounds
2 The Employer is owned by The Glidden Company (over which the Board has asserted
jurisdiction • 61 NLRB 297 ) and Turpentine and Rosin Factors, Inc , each of which con
porations holds 50 percent of the Employer 's capital stock
93 NLRB No. 170.