The William Kelly Milling Co.

National Labor Relations Board - Board Decisions

Jun 26, 1943

50 N.L.R.B. 879 (N.L.R.B. 1943)

In the Matter of THE WILLIAM KELLY MILLING COMPANY and DISTRICT
No. 50, UNITED MINE WORKERS OF AMERICA ,
Case No. R-5481.Decided June 26, 194.3
Margaret L. Fassig, for the Board. -
Mr., C. E. Chalfant, of Hutchinson, Kans., for the Company.
Messrs. H. W. Moore and John L. Mayo, of Kansas City, Mo., and
Mr. John W. Edwards, of Hutchinson , Kans., for the U. M. W.
Mr. Howard L. Rizer, of Kansas City,'Mo., for the C. I. O.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION,
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by District No. 50, United Mine Workers
of America, herein called the U. M. W., alleging that a question affect-
ing commerce had arisen concerning'the representation of employees
of The William Kelly Milling Company, Hutchinson, Kans, herein
called the Company, the National Labor- Relations Board' provided
for an appropriate hearing upon due notice before Eugene 'R. Mel-
son, Trial Examiner. Said hearing was held at Hutchinson, Kan-
sas, on June 3, 1943. The Company, -the U. M. W., and Local Indus-
trial, Union No. 1153, affiliated with the Congress of Industrial Or-
ganizations , herein called the C. I. 0., appeared, participated, ' and
were afforded full opportunity to be heard to examine and cross-exam-
ine witnesses, and to introduce evidence bearing on, the issues. The
rulings of the Trial Examiner made at the hearing are free from prej-
udicial error and are hereby affirmed. All parties were afforded op-
portunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY '
The William Kelly Milling Company, a Kansas corporation, main-
tains its principal office and place of business in Hutchinson, Kansas,
where it is engaged in the processing of grain and the manufacture
50 N. L. R. B., No. 127.
879
880 DiEC 'ISIONS OF , NATIONAL LABOR, RELATIONS' BOARD
of wheat flour and mill feeds ', , In" the course of its operations, ' the-
Company uses wheat , bags, and other materials . During the, year
1942 the Company used approximately 11/4 million bushels of wheat.-
of which 5 to 10 percent was shipped to its plant from points outside
the State of Kansas . During the same period , the Company manu-
factured approximately 240,000 barrels of flour, of which approxi-
mately 90 percent was,shipped to points outside the State of Kansas.
H. THE ORGANIZATIONS INVOLVED
District No. 50, United Mine Workers of America is a labor organ-
ization admitting to,membership employees of the Company.
Local Industrial Union No: 1153, is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On May 8, 1943, the U. M. W. requested the Company to recognize
it as the exclusive collective bargaining representative of the Com-
pany's employees. The Company, at that time a party to a collective
bargaining, contract with the C., I. 0., replied in- effect that it would
recognize whatever. organization was certified by the Board.
The C. I. O. contends that the U. M. W. petition should be dismissed
because the C. I. O. was selected as the exclusive collective bargaining
representative following a consent election and now has a contract
with the Company. The, first reason advanced by the C. I. O. for dis-
missing the petition is clearly without merit. The consent election
was conducted under the auspices of the Board's Regional Office on
November 17, 1941. Since the election, was conducted more than a
year ago,,it is,no bar to a present determination of representatives?
Nor are the contracts to' which the C. E O. has reference a bar. The
basic contract was entered into on' December 21, 1941. It provides
that it "shall be in full force and effect from the 1st day of December
1941 to the 31st day of May 1943." The latter date has passed and
the contract has not been renewed. . On March 3, 1943, however, the
C. I. O. and the Company entered into a supplemental contract which
the C. I. O. contends had the effect of extending the basic contract.
It is clear from a reading of the supplemental contract that its purpose
was merely to effect a change in the wage schedule from December 31,
1942, a procedure expressly provided for in the basic contract. Fur-
thermore, the change in wage schedule was contingent upon 'the ap-
proval of the War Labor Board. Such approval wa§ not forthcom-
ing., Finally, the supplemental contract makes no reference to extend-
ing the term of the basic contract. We find, therefore, that at the
I See Matter of Eagle Iron Works, 46 N. L. R B. 1145.
THE WILLIAM 'KELLY MILLING COMPANY 881
present time there is no contract covering the employees in question.
A statement,of a field Examiner of the Board, introduced into evi-
^dence at the hearing, indicates that the U. M. W. represents a sub-
stantial number ' of €mployees in the unit hereinafter found to be,
appropriate' ; , . •
We findAhat 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
We find, in substantial•accordance with a'stipulation of the parties,
that-all production and maintenance employees of the Company, ex-
cluding all office ' employees and all supervisory employees with au-
thority to hire, discharge, discipline; or otherwise effect` changes in
the status of employees, or effectively recommend such action, consti-
tute 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 an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of our Direction of Elec-
tion herein, subject to the limitations and additions set forth therein.
DIRECTION OF ELECTION
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, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The William Kelly
Milling Company, Hutchinson, Kansas, an election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)'
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Seventeenth Region, acting in
this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 10, of said Rules and Regulations,
2 The Field Examiner stated that the U . M. W. had submitted to him 54 application-for-
membership cards, all bearing apparently genuine original signatures ; and that 52 of the
cards bore names of persons whose names appeared on the Company 's May 12, 1943, pay
roll, which listed 53 employees in the unit hereinafter found to be appropriate
This is substantially in accord with the unit covered by the C I. 0 's contract.
882 DECISIONS OF NAfTIOIV'AL LABOR REILATIONS BOARD
among the employees 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 employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at' the polls,
but excluding those employees who have since quit or been discharged
for cause, to determine whether they desire to be represented by Dis-
trict No. 50, United Mine Workers of America, or by Local Indus-
trial Union No. 11531, affiliated with- the Congress of Industrial Or-
ganizations, for the purposes of collective bargaining, or by neither.
CHAIRMAN Minis took no part in the consideration of the above
Decision and Direction of Election.-
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