Shawnee Milling Co.

National Labor Relations Board - Board Decisions

Jul 8, 1943

51 N.L.R.B. 147 (N.L.R.B. 1943)

In the Matter of SHAWNEE MILLING COMPANY and UNITED GRAIN
PROCESSORS , LOCAL 21987, AFFILIATED WITH AMERICAN FEDERATION OF
GRAIN PROCESSORS (AFL)
Case No. R-5523. -Decided July 8,1943
Abernathy & Abernathy, by Mr. G. C. Abernathy, of Shawnee,
Okla., for the Company.
Mr. H. A. Schneider, of Dallas, Tex., for the Union.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Grain Processors, Local 21987,
affiliated with American Federation of Grain Processors (AFL),
herein called the Union, alleging that a question affecting commerce
had arisen concerning the representation of employees of Shawnee
Milling Company, Shawnee, Oklahoma, herein called the Company,
the National Labor Relations Board provided for an appropriate
hearing upon due notice before Elmer Davis, Trial Examiner. Said
hearing was held at Shawnee, Oklahoma, on June 8, 1943. The Com-
pany and the Union appeared, participated, and 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 parties were afforded opportunity to file
briefs with the Board.
At the hearing the Company moved that the Union's petition be
dismissed on the ground that the petition was filed in less than a year
from the date of a Board election conducted among the Company's
employees which the Union lost, and on the additional ground that
no question concerning representation has arisen since the Union did
not request recognition from the Company. In view of our findings
in Section III, infra, the Company's motion to dismiss is denied.
Upon the entire record in the case, the Board makes the following :
51 N. L. R. B., No. 32.
540612-44-vol . 51-11 147
148 DECIISQONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Shawnee Milling Company, an Oklahoma corporation, maintains
its principal office and place of business in Shawnee, Oklahoma, where
it is engaged in the manufacture, sale, and distribution of flour, corn
meal , dairy feed, poultry feed, and related products. The principal
raw material used by the Company is wheat. During the year 1942,
the Company purchased approximately 2,000,000 bushels of wheat, of
which approximately 15 percent was purchased outside the State of
Oklahoma. During the same period, the Company sold and distrib-
uted approximately 50 percent of its products to points outside the
State of Oklahoma.
H. THE ORGANIZATION INVOLVED
United Grain Processors, Local 21987, is a labor organization affili-
ated with the American Federation of Grain Processors, which in turn
is affiliated with the American Federation of Labor. It admits to
membership employees of the Company.
III THE QUESTION CONCERNING REPRESENTATION
The Company contends that no question concerning representation
has arisen because no request for recognition was made by the Union.
The record indicates the contrary, however. H. A. Schneider, vice
president of the American Federation of Grain Processors Council,
testified that on May 20, 1943, he talked by long distance telephone
with Leslie A. Ford, the vice president of the Company, stating in
effect that the Union represented a majority of the Company's em-
ployees and requesting that it be recognized as the sole bargaining
representative of such employees, and that Ford replied in substance
that the Union would first have to be certified by the Board.
The Company contends further that a previous Board election con-
ducted among the Company's employees is a bar to a present determi-
nation of representatives. This election was held on October 29,
1942, resulting in a majority vote against the Union. Since no col-
lective bargaining representative was designated as a result of the
election and because a statement of a Field Examiner of the Board,
introduced in evidence at the hearing, as supplemented by a state-
ment of the Trial Examiner made at the hearing, indicates that the
Union, subsequent,to the election, obtained designations from a sub-
stantial number' of employees in the unit hereinafter found to be
appropriate,' we find that the previous election is no bar.2
' The. Field Examiner stated that the Union submitted to him 78 authorization cards, all
bearing 'apparently genuine original signatures , and that all but 6 of the cards were dated
SHAWNEE MILLING COMPANY 149
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union requests a unit of all employees of the Company, ex-,
eluding supervisors, second millers, foremen, chemists, office em-
ployees, salesmen, and truck drivers. As in the previous case, the
sole dispute between the parties over the appropriate unit concerns
specified employees sought to be excluded from the unit by the.Union
as supervisory employees. The parties agreed that the board might
use the record in the previous case in determining the duties of the
disputed employees.
In our previous decision, we found the following to be supervisory
employees and excluded them as such from the appropriate unit.,
R. G. Alfrey and Ewing Longworth, leadmen in the elevator depart-
ment; C. A. Scott, leadman in the alfalfa department; John Turner,
leadman in the poultry feed mill; C. A. McKeeman, and Garland,
King and A. L. Rosier, head and second millers, respectively; H. N.
Welch, head packer ; J. T. Helton, leadman of the hand truckers;'
L. E. Garrett, leadman in the warehouse; H. E. Smith, night loading
foreman; and Clyde Giles, millwright. The record in the instant`
case indicates that there have been no material changes in the func-
tions associated with the positions set forth above since our previous;
decision, although there have been some changes in the personnel oc-
cupying the positions. In view of this fact, we shall exclude the,
occupants of the above positions, which we found to be supervisory
in nature in our prior decision, from the appropriate unit.
Since our prior decision, the number of employees of the Company
has expanded. Several departments of the mill now have two and
even three permanent shifts rather than one. Each shift is headed
by a Madman. The Company and the Union both agree that "the'
leadmen of the new second and third shifts should be included in
the appropriate unit. In nearly tvery instance, such l'eadmen are
hourly paid, whereas the leadmen of the first shifts whom we have
excluded above, are paid semi-monthly at a higher rate of pay.
However,, the positions held are identical excepting that the second
and third shifts usually comprise fewer employees. Thernleadmen
subsequent to the previous election The Trial Examiner stated that 55 of the cards bore
names of persons whose names appeared on the Company 's pay roll for May 20 , 1943, which
listed 138 employees in the unit which the Union contended to be appropriate
a Matter of Gluck Bros , Inc., 49 N. L R B 1428; Matter of Lehigh Portland Cement
Company , 38 N I, R' B. 308 ,' 310; Matter of Chrysler Corporation , 37 N L R B 877, 879
150 DECDSIIONS OF NATIONAL LABOR RELATIONS BOARD
transmit orders and arrange work assignments. On the basis of all
the facts, we see no reason why leadmen of the second and third shifts
in the several departments of the mill should not be excluded with
the leadmen of the first shifts. As one possible basis for different
treatment the Union argues that when the company is not operating
a third shift or a second and a third shift, the leadmen of such shifts
become ordinary employees on the shifts still operating. This fact,
however, does not change our conclusion, since it is the position and
not the men occupying it which we are excluding from the appropri-
ate unit. We find, therefore, that the leadmen of the second and
third shifts, as well as the leadmen of the first shifts, are supervisory
employees, and we shall exclude them from the appropriate unit as
such.
J. T. Helton, leadman of the hand truckers, whom we excluded in
our previous decision, now has an assistant on his shift, Martin Rush-
ing, who checks cars, directs loading, and gives orders just as does
Helton. The Company and the Union both agree that Rushing
should be included in the unit. We shall, however, in view of the
similarity of his duties to Helton's exclude Rushing from the appro-
priate unit as a supervisory employee.
We find that all employees of the Company, excluding office em-
ployees, salesmen, chemists, truck drivers, and second millers, fore-
men and any other supervisory employees with authority to hire, pro-
mote, 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 shall direct that the question concerning representation which
has arisen be resolved by means of an election by secret ballot among
the employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of our Direction' of
Election, subject to the limitations4and additions set forth therein.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National La-
bor Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DmEcTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Shawnee Milling
Company, Shawnee, Oklahoma, an election by secret ballot shall be
0
SHAWNEE MILLING COMPANY 151
conducted as early as possible, but not later than thirty (30) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Sixteenth Region, acting in this mat-
ter as agent for the National Labor Relations Board, and subject to
Article III, Section 10, of said Rules and Regulations, among the em-
ployees 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 those employees who did not work during
such pay-roll period because they were ill or on vacation or tempo-
rarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding those employees who have since quit or been discharged for
cause, to determine whether or not they desire to be represented by
United Grain Processors, Local 21987, affiliated with American Fed-
eration of Grain Processors (AFL), for the purposes of collective
bargaining.