Colonial Sugars Co.

In the Matter of COLONIAL SUGARS COMPANY, GRAMERCY REFINERY and UNITED 'SUGAR WORKERS LOCAL INDUSTRIAL UNION, AFFILIATED WITH CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. R-3492.-Decided March 4, 1942 Jurisdiction : sugar refining industry. Investigation and Certification of Representatives : existence of question : refusal to bargain with the union until the Board certified that the union was duly designated by a majority of its employees in an appropriate collective bargain- ing unit; election necessary. Unit Appropriate for Collective Bargaining : all production and maintenance em- ployees, including weighers in the wash plant, liquor runners in the char house, defecator men in the defecator house, sugar boilers on the pan floor, drum men in the granulators, production clerks in the packing department, the bag clerk in the packing department, checkers in the shipping department, clerks in the materials and supplies storeroom, and dynamo operators in the electrical department, but excluding employees listed as foremen and assistant foremen on the Company's "Classification of Employees", deputies, deputized watchmen, assistant chemists, bench chemists, yardmen working as domestics, employees of the Company store, employees who work exclusively in connec- tion with the swimming pool of the Company, sack sewers who are temporarily employed by the Company, extra raw sugar stackers, the warehouseman in the shipping department, the checker in the river loading department, shift checkers in the shipping department, house engineers in the engineering department-process, river pump men, and water purification plant employees. Mr. Charles Payne Fenner, Jr., of New Orleans, La., for the Company. Mr. John Bouche, of New Orleans, La., for the Union. Mr. George A. Koplow, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 12, 1941, United Sugar Workers Local Industrial Union,' affiliated with Congress of Industrial Organizations, herein 'The Union was. so described in the petition The record, however, shows that the local involved is Local Industrial Union, No . 1167, which was chartered on November 25, 1941. 39 N. L. It. B., No. 75. 417 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called the Union, filed with the Regional Director for the Fifteenth Region (New Orleans, Louisiana), a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Colonial Sugars Company, at its Gramercy, Louisiana, refinery, herein called the Company, and requesting an. investigation, and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 19, 1942, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and 'Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 23, 1942, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. , Pursuant to notice, a hearing was held on February 2, 1942, at New Orleans, Louisiana, before C. Paul Barker, the Trial Examiner duly designated by the Chief Trial Examiner. The Com- pany and the Union appeared by counsel or their representatives and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the-following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Colonial Sugars Company, a subsidiary of The Cuban-American Sugar Company, of New York, is a New Jersey corporation engaged in the operation of a sugar refinery at Gramercy, Louisiana. The raw materials used in the operation of the refinery consist of centrif- ugal sugars, of which, in the last 6 months of 1941, approximately 5 percent came from the State of Louisiana and the balance from outside the United States, largely from Cuba. The finished products of the Company consist of refined sugars and final blackstrap molasses. The average capacity of the refinery is approximately 320 million pounds of sugar annually. During the last 6 months of 1941 approxi- mately 94 percent of the finished products were shipped outside the State of Louisiana. The Company does not contest the Board's jurisdiction. ` COLONIAL SUGARS COMPANY" 419 -II. THE ORGANIZATION INVOLVED United Sugar Workers Local Industrial, Union, No. 1167, affiliated with Congress of Industrial Organizations, is, a labor organization admitting to membership employees of the Company. III. THE , QUESTION CONCERNING REPRESENTATION The Company will not bargain with the Union until the Board certifies that the Union was duly designated by a majority of its employees in an appropriate collective bargaining unit. A statement by the Regional Director introduced into evidence shows that the Union represents a' substantial number of employees in the collective bargaining unit hereinafter found to be appropriate.2 We find' that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and between the United States and foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The parties agree that the unit appropriate for the purposes of collective bargaining should consist of all production and maintenance employees of the Company, excluding clerical and -supervisory em- ployees. The Union defines a supervisor as one who has the authority to hire and discharge employees; and defines a clerical employee as an office worker and not a plant clerical employee. The Company, on the other hand, defines a supervisor as one who performs supervisory dutes, whether or not he has the authority to hire and discharge, and defines a clerical employee as one who does clerical work, whether 2 The Regional Director stated that the Union had submitted to him 345 applications for membership , of which 336 were dated between July 1, 1941 and January 31, 1942, and the remaining 9 were dated 1941, with no day or month given. Three hundred seventeen of the 345 applications bore apparently genuine original signatures of persons whose names were on the Company's pay roll of November 21, 1941. The remaining 28 applications bore apparently genuine original signatures , but due to the fact that they contained no pay-roll number or contained a number not corresponding with that on the pay roll itself, they wen not checked to determine if they were listed on the pay roll of November 21, 1941. On this pay, roll there were approximately 700 employees in the unit hereinafter found to be appropriate, 420 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD in the office or in the plant.- In addition, the Company contends that employees in the water plant are in a different category from the production and maintenance employees, and should be excluded from the appropriate unit, while the Union contends that they should be included. These differences lead to a dispute among the parties over some 14 categories of employees, discussed below. The Company submitted a list entitled "Classification of Em- ployees," setting forth the categories of -employees constituting a normal working force. The parties stipulated, and we find, that the following employees, should be excluded from the unit : All em- ployees listed on the "Classification" as foremen and assistant foremen,' deputies,, deputized watchmen, assistant chemists, bench chemists, yardmen working as domestics, employees - of the Com- pany store, employees who work exclusively in connection with the swimming pool of the Company, sack sewers temporarily employed by the Company, and extra raw-sugar stackers 4 The parties disagree on the following classifications of, employees, the Union contending in each case that they should be included in the appropriate unit, and the Company contending that they should be excluded. A. Weighers in the wash plant There are 3 weighers in the wash plant, paid an hourly wage of 41 cents. They weigh all incoming sugar and perform all clerical work in connection therewith. They are responsible to the assistant superintendent of the plant rather than to the foreman of the wash plant, and the more experienced among them occasionally act as foremen of the wash plant when necessary. On the other hand, the foreman of the wash plant keeps track of their working time, and they are paid only for the time 'they actually work, instead of being paid "running time," like regular foremen.5 While it appears that they perform no manual labor, we nevertheless consider their work as part of the process of production and shall include them-in the appropriate unit. 3It was stipulated that employees so designated on this "Classification " have authority to hire and discharge. 4 Both parties agreed at the hearing that if a raw-sugar stacker 's name appears on the Company 's pay roll for six or more consecutive pay-roll periods he is -no longer to be considered an extra raw-sugar stacker, but is to be included in the appropriate unit. We adopt this definition. 5 Regular foremen and certain other employees are paid "running time." That is, they are listed on the pay roll at an hourly rate , but are paid for 40 hours each week, even if the plant works less than that time or they are not present all the time the plant is in operation. The regular foremen, with one exception , are paid from 50 to 86 cents per hour, with most of them receiving approximately 57 cents COLONIAL SUGARS COMPANY 421 B. Liquor runners in the char house There are 3 liquor runners in the char house paid an hourly wage of 381/2 cents. Their duties are to see that the various kinds of liquor flowing from the char filters are distributed properly to various parts of the char house, following the controls given them by the laboratory. They are paid running time, like regular foremen,, are in charge of 3 or 4 men, who work on the floor with them, and act as foremen of the char house' when the regular foreman is ill or away. On the other hand, they work in the char house and, like other employees in this department, are responsible to the foreman of the char house. Their hourly rate is approximately the same as that of other ordinary employees in the department, whereas the regular foreman is paid 60 cents per hour. We find that the liquor runners are not supervisory or clerical employees, and shall include them in the appropriate unit. - C. De f ecator men in the defecator house There are 3 defecator men, paid an hourly rate of 41 cents. They have charge of the defecator house and the 7 other employees working there, since there is no foreman in this department. Their duties are to direct the outflowing liquors from the defecators into various canals, and to fill out daily reports on operations, including the operations of the other employees in the defecator house. They are not paid running time, are themselves answerable to the char house foreman, and have the "power to recommend their helpers" to the char house foreman, although the record does not show what effect such a recommendation would have. We find- that they are not supervisory or clerical employees, and shall include them in the appropriate unit. D. Sugar boilers on the pan /door There are 6 sugar boilers, paid an hourly rate of 60 and 65 cents. They work on the pan floor, with no.foreman over them, and are responsible directly to the assistant superintendent. If one of the 3 "watchers",on the pan floor were not cooperating with the boilers they could lay him off and discuss the matter with the management later. They are paid-running time. While their work is highly skilled, it is a necessary part of the production process, their duties being to see that, the sugar comes out of the vacuum pan in the proper form as to size, hardness, and character of grain, and density 422 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD of massecuite. We find that they are not supervisory or clerical employees, and shall include them in the appropriate unit.' E. Drum men in the granulators There are 3 drum men, paid an hourly rate of 41 cents. They are in direct charge of drying and checking the sugar, with several 35-cents-an-hour men' under them. The record does not reveal whether they actually hire and discharge these men, although the manager of the refinery testified that if one was not doing his work accurately the drum men could discharge him and, in all likelihood would be sustained by the management. The drum men are not paid running time, and the foreman of'the packing department keeps track' of their,working time. We find that they are not supervisory or clerical employees, and shall include them. in the appropriate unit. F. Production clerks in the packing department There are 3 production clerks, paid an hourly, rate of 41 cents. They work in the packing department, reweighing all refined sugar coming from the packing department before it goes to-the warehouse, checking as to weight, grade, and number and kind of packages. If the variance is too great they send the sugar back to the, packing department. They keep certain'records and make a recapitulation at the end of the day. The packing department foreman keeps a record of their working time, but they are responsible only to the assistant superintendent for the character of their work. We do not believe that the nature of their duties so differentiates them from the production and maintenance employees that they should be ex- eluded. We shall therefore include them in the appropriate unit. G. Bag clerk in the packing department 7 There is one bag clerk, paid an hourly rate of 41 cents. He is listed with the packing-department employees but spends approxi- mately half his time in the office. He is responsible only to the office, and is described as- having "full responsibility of the receipt, storage, and disbursement of refined sugar packages." His duties ° See Matter of Godchaux Sugars, Inc and Sugar Workers' Union No. 21934, affiliated with the American Federation of Labor, 26'N . L. It. B. 33 , in which we included sugar boilers, despite the fact that the only union taking a position on them requested their exclusion , and Matter of Godchaux Sugars, Inc and United Sugar Workers , Local 1124, af]lltiated with Congress of Industrial Organizations , 36 N L R B 926 , \in which we included sugar boilers as stipulated by the parties. 7 This employee was referred to in the record by various other names . By stipulation dated February 12, 1942 , the parties agreed to change his designation to "bag clerk in the packing department," COLONIAL SUGARS COMPANY 423 include checking the receipt of all packages against invoices, taking samples to see that they meet specifications, supervising the delivery of packages from the bag room to the granulator department, and making a daily check of packages filled against those given out on requisitions. We are of the opinion that his duties do, not suffi- ciently differentiate the .bag clerk from the production and main- tenance employees, and we shall therefore include him in the appro- priate unit. H. Warehouseman in the skipping department There is one warehouseman, paid an hourly rate ` of 47 cents. He is ' listed with the shipping department employees but is re- sponsible only to the office. His duties include auditing the ship- ping and packing departments by counting the sugar in the ware- house each day and checking it against production and shipment. He also checks production of molasses and has full supervisory authority, with power to hire and discharge, over intermittent crews loading molasses. He. is paid running time. We find his duties to be such as to place him in the class of supervisory and clerical employees and shall exclude him from the appropriate unit. I. Checkers in the shipping department There are 3 checkers in the shipping department, paid an hourly rate of 41 cents. They check all shipments of refined sugar as they go to the transportation units, against copies of the orders. They also supervise the arrangement of packages in the cars, record the details concerning the shipments, and, together with the shipping- department foreman, sign certifications of the shipments. They perform similar duties with respect to shipments of bags and'scrap. They are not paid running time and are responsible to the shipping- department foreman. We find that they, are not supervisory or clerical employees, and "shall include them in the appropriate unit. J.' Checker, in the river-loading department There is oi}e checker in the river-loading department, paid an hourly. rate of 41 cents. His duties appear, to be quite similar to those of the checkers in the shipping department, except that he checks shipments and keeps records of 'refined sugar being loaded into barges on the river. However, the record shows that in addi- tion, the checker in the river-loading department is the •foreman, with full authority to hire and discharge the members of the crew of approximately 8 laborers who unload the trucks whenever sugar 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is shipped by barge. For this reason we consider the checker in the river-loading department a supervisory employee and shall ex- clude him from the appropriate unit. K. Shift checkers in the shipping department There are 3 shift checkers in they shipping department, paid an hourly rate of 45 cents. They work on rotating shifts, each man spending 2 weeks out of every 6 on the day shift, when his duties are identical with those of the checkers listed in Section "I", above. However, each shift checker spends 4 out of 6 weeks on the other shifts, and during that time is in full charge of the warehouse and shipping department with approximately 12 men under him., Dur- -irig these 4 weeks he has the regular duties of the foreman, keeps his own time and that of the men under him, and has the authority to hire and discharge. We find that the shift checkers are super- visory employees and shall therefore exclude them from the appropriate unit. L. Clerks in the materials and supplies storeroom There are 2 employees listed as clerks in the materials and sup- plies storeroom, paid an hourly rate of 371/2 cents. One of the two performs manual labor, doing the sorting and handling of the ma- terials and supplies, is not paid running time, and admittedly be- longs in the unit. The only dispute is as to the other employee, who gives out materials on requisitions, records them as they are given out, and fills out reports regarding the materials. While he is paid running time,, his hourly rate, 371/2 cents, is the same as the other storeroom employee. We find that. he is not sufficiently dis- tinguishable from regular production and maintenance employees, and shall therefore include both clerks in the appropriate unit. M. House engineers in the engineering department-process There are 4 house engineers, paid an hourly rate of 561/2 cents. They supervise the mechanical side of the refinery's operations, tak- ing care of all breakdowns: They are assisted by other employees in the engineering department-process, and keep their own time and that of the men under them. They,are responsible only to the man- agement on the night shifts, and to the assistant engineer of the entire plant on the day shift. They are paid running time. We, find that the house engineers are not properly part of a unit of non- supervisory production and maintenance employees, and shall therefore exclude them. ' COLONIAL SUGARS COMPANY 425 N. River pump men and water-purification plant employees There are 4 river pump men and 4 water-purification plant em- ployees, each paid an hourly rate of 35 cents. The Company con- tends that the water plant is an entirely separate operation from the refinery, and that employees in the water plant should be excluded for that reason. The water plant is located across the street from the refinery office, 75 percent of its production is used by the re- finery, and its employees are hired and paid by the Company. On the other hand, it is the sole source of water supply for the com- munities,in the neighborhood, has to be kept operating whether or not the refinery operates, and is under the partial direction of the State Board of Health. We find that the water-plant employees are not properly a part of a unit consisting of the refinery's production and maintenance employees, and shall therefore exclude them. We find tFiat all production and maintenance employees of the Company, including weighers in the wash plant, liquor runners in the char house, defecator- men in the defecator house, sugar boilers on the pan floor, drum men in the granulators, production clerks in the packing department, the bag clerk in the packing department, checkers in the shipping department, clerks in the materials and sup- plies storeroom, and dynamo operators in the electrical department,' but excluding employees listed as foremen and assistant foremen on the Company's "Classification of Employees," deputies, deputized watchmen, assistant chemists, bench chemists, yardmen working as domestics, employees of the Company store, employees who work exclusively in connection with the swimming pool,of the Company, sack sewers who are temporarily employed by the Company, extra raw-sugar 'stackers, the warehouseman in the shipping department, the checker in the river-loading department, shift checkers in the shipping department, house engineers in the engineering department- process, river pump men, and water purification plant employees, constitute a unit appropriate for the purposes of collective bargain- ing, and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bar-, gaining, and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by, secret ballot. The Company requested that an election should not take place' before April 1, 1942, because the present national emergency makes g There was some dispute between the parties, early in the hearing, as to whether dynamo operators in the electrical department should be included or excluded. They later stipulated , and we hereby find, that they should be, included. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the future prospects of the sugar industry uncertain, and because by April 1942 the industry may have adjusted itself to whatever new conditions may prevail. The Union contended that an election should be held as soon as possible, since the refinery is admittedly operating in a normal way at the present time. The Company con- tended that the pay roll-to be used in determining eligibility to vote in the election should be one dated not earlier than April 1, 1942, while the Union desired a pay roll dated during February 1942. Under the circumstances, we see no reason for departing from our customary procedure. " We shall direct that an election be held within thirty (30) days from the date of our Direction of Election, and that the employees eligible to vote in such election shall be those in the appropriate unit who were employed during the pay-roll period immediately preceding the date of our Direction of 'Election, subject to the limitations and additions set forth in the Direction. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of Colonial Sugars Company, at its Gra- mercy, Louisiana, refinery, within the meaning of Section 2 (6) and, (7) of the National Labor Relations Act. -2. All production and maintenance employees of the Company, including weighers in the wash plant, liquor runners in the char house, defecator men in the defecator house, sugar boilers on the pan floor, drum men in the.granulators, production' clerks in the packing department, the bag clerk in the packing department, checkers in the shipping department, clerks in the materials and supplies storeroom, and dynamo operators in the electrical department, but excluding employees listed as foremen and assistant foremen on the Company's."Classification of Employees," deputies, deputized watch- men, assistant chemists, bench chemists, yardmen working as domes- tics, employees of the Company store, employees who work exclu-' sively in connection with the swimming pool of the Company, sack sewers who are temporarily, employed by the Company, extra raw sugar stackers, the warehouseman in the shipping department, the checker in the river-loading department, shift checkers in the ship- • ping department, house engineers in the engineering department- process, river pump men, and water-purification plant employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. COLONIAL SUGARS COMPANY 427 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 8,-of National Labor 'Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Colonial Sugars Company, at its Gramercy, Louisiana, refinery, 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 of Election, under the direction and supervision of the Regional Director for the Fifteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article, III, Section 9, of said Rules and Regulations, among all production and maintenance employees of the Company who were employed during the pay-roll period immediately preceding the date of this Direction, including weighers in the wash plant, liquor runners in the char house, defecator men in the defecator house, sugar 'boilers on the pan floor, drum men in the granulators, production clerks in the packing department, the bag clerk in the packing department, checkers in the shipping department, clerks in the materials and supplies storeroom, dynamo operators in the electrical department, and em- ployees who did'not work during such pay-roll period because they. were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding employees listed as foremen and assistant foremen on the Company's "Classi- fication of Employees," deputies, deputized watchmen, assistant chem- ists, bench chemists, yardmen working as domestics, employees of the Company store, employees who work exclusively in connection with the swimming pool of the Company, sack sewers who are tem- porarily employed by the Company, extra raw-sugar stackers, the warehouseman in the shipping department, the checker in the river- loading department, shift checkers in the shipping department, house engineers in the engineering department-process, river pump men, water-purification plant employees, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Sugar Workers, Local In- dustrial Union, No. 1167, affiliated with Congress of Industrial Organizations, for the purposes of collective bargaining. CHAIRMAN MILLIs took no part in the consideration of the above Decision and Direction of Election.