Cotton Trade Warehouses, Inc.

In the Matter of COTTON TRADE WAREHOUSES, INC. and INDEPENDENT WAREIIOUSEMEN'S UNION OF NEw ORLEANS, LOUISIANA Case No. R-5703.Decided August 24, 1943 Messrs. C. A. Bertel and J. A. Falcon, of New Orleans, La., for the Company. Messrs. David Fair, MeGrady Shelton, Ben Vesha, Philip Draugh-- ter, Frank Turner, Will Joiner, and Marcelino Mosquera, of New Orleans, La., for the Independent. Mr. Howard Goddard, of New Orleans, La., for the C. I. O. Mr. Wallace E. Royster, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Independent Warehousemen's Union of New Orleans, Louisiana, herein called the Independent, alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Cotton Trade Warehouses, Inc., New Or- leans, Louisiana, herein called the Company, the National Labor Rela- tions Board provided for an appropriate hearing upon due notice before J. Michael Early, Trial Examiner. Said hearing was held at New Orleans, Louisiana, on July 15, 16, 17, and 18, 1943. The Com- pany, the Independent, and International Longshoremen's & Ware- housemen's Union, Local 207, C. I. 0., herein called the C. I. 0., ap- peared, 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. In the course of the hearing, the C. I. O. submitted several oral and writ- ten motions to dismiss the petition. The Trial Examiner reserve& ruling thereon to the Board. For reasons appearing hereinafter, the motions are denied. All parties were afforded opportunity to file briefs with the Board. 52 N. L. R. B., No. 24. 149 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following:, FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Cotton Trade Warehouses, -Inc., is a Louisiana corporation with its office and several warehouses in New Orleans, Louisiana. The Company is engaged principally in receiving, weighing, sampling, compressing, storing, and delivering cotton and, in addition, it stores general merchandise and property of the Federal Government. The Company's warehouses have a storage capacity of 100,000 bales of high density, compressed cotton. During 1942, the Company received 110,000 bales of cotton for storage, of which approximately 33 percent was received from points outside Louisiana. During the same year, 80 percent of the cotton delivered was shipped from the warehouses to points outside Louisiana. There is no contest as to the jurisdiction of the Board, and we find the Company to be engaged in' commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Independent Warehousemen's Union of New Orleans, Louisiana, is an unaffiliated labor organization admitting to membership employees of the Company.,' International Longshoremen's & Warehousemen's Union, Local 207, C. I. 0., is a labor organization affiliated with the Congress of -Indus- trial Organizations, admitting to membership employees of the Com- pany. III. THE QUESTION CONCERNING REPRESENTATION Subsequent to a prior representation proceeding and election involv- ing the Company, the C. I. 0., and an A. F. of L. union,2 the Board certified the C. I. O. as exclusive bargaining representative of the Company's warehouse employees.3 Following the certification, the C. I. O. entered into two consecutive collective bargaining contracts with the Company, the latter of which expired by its terms on March 31, 1943. On that date, the Company and the C. I. O. were in the .process of negotiating a new contract and, by agreement, extended the terms and conditions of the old contract through April 30, 1943. There is much disputed evidence concerning the approval of a new contract by the C. I. O. membership but, since all parties agree that 3 See discussion in Section III, following. Matter of Cotton Trade Warehouses, Inc., et at , 11 N. L. R. B. 1014 = Matter of Cotton Trade Warehouses, Inc., et al., 12 N. L . It. B. 462. COTTON TRADE WAREHOUSES, INC. 151 no collective bargaining contract is presently in effect covering the Company's employees, and thus there is no contractual bar to this proceeding, and we need not resolve this. conflict. There is evidence in the record indicating disaffection in the ranks of the C. I. O. antedating by several months the expiration of the latter contract. A number of employees discontinued payment of dues and, although the contract then in effect contained maintenance of membership provisions, the C. I. O. has made no recent request of the Company to discharge those employees who are no longer its members. This disaffection appears to have been aggravated by the failure of the C. I. O. to negotiate a new contract. On June 9, 1943, following a preliminary discussion and decision, a group of employees circulated a petition which was signed by a substantial number of the Company's employees. The petition contains the following reci- tation : We, the undersigned employees of the Cotton Trade Ware- houses, Inc., of New Orleans, Louisiana, do hereby certify that we resign our membership in the International Longshoremen's & Warehousemen's Union, Local 207, of New Orleans, Louisiana, effective immediately and do hereby make application for and accept membership in the Independent Warehousemen's Union of New Orleans, Louisiana, and designate as our collective bar- gaining agency the Independent Warehousemen's Union of New Orleans, Louisiana, as our bargaining agent to represent us in negotiations with the Cotton Trade Warehouses, Inc. with respect to the terms of a labor agreement covering hours, wages, and other conditions of employment. Officers of the Independent were selected, apparently without a formal election, and a request for recognition as exclusive collective bargain- ing representative of the employees was submitted to the Company. The Company refused to accord recognition unless and until the In- dependent is certified by the Board. Thereupon, on June 15, 1943, the Independent filed its petition herein. The C. I. O. contends that its certification by the Board, referred to above, is a bar to this proceeding. While it is the practice of the Board not to entertain a petition filed within 1 year after certifica- tion of representatives,4 manifestly the case before us presents no such situation. Since the certification relied upon was issued more than 4 years prior to the filing of the petition herein, we find no merit in the contention of the C. I. O. In its brief and at the hearing, the C. I. O. argued that the Inde- pendent is not a labor organization within the meaning of the Act. 9 See Matter of Mona, ch Aluminum Mfg. Co, 41 N. L. R. B. 1. 152 DEC3 IONS OF NATIONAL LABOR RELATIONS BOARD It is undoubtedly true that the Independent lacks many of the indicia generally associated with such organizations. We recognize that the Independent collects no dues; has no permanent, elected officers; has scheduled no regular meetings; and has no constitution. Neverthe- less, the deficiencies of the Independent in these respects do not render its petition ineffectual. Section 2 (5) of the Act defines a labor organization as: " . . . any organization of any kind, or any agency or employee representation committee or plan in which employees par- ticipate and which exists, for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." Since the Independent appears to be an organization created by the collec- tive action of the employees of the Company, and since its avowed purpose is to deal with the Company with respect to hours, wages, and other conditions of employment, we find the Independent to be a labor organization, within the meaning of the Act. The C. I. O. further asserts that since 1939 it has dealt with the Company and its competitors in New Orleans, jointly, in respect to collective bargaining agreements, but that recently the Company has wrongfully refused to participate in such joint negotiations. The certification issued by the Board in the prior case did not require the Company to associate with other employers in bargaining with the C. I. O. and consequently the assertion of the C. I. O. gives rise to no substantial or material issue. ' The assertions of the C. I. O. that the Company has assisted the formation of the Independent and fostered its activities are not ger- mane to this proceeding under the Notice of Hearing herein, and in consequence we make no finding in respect thereto. Statements of the Trial Examiner, made on the record, indicate that the Independent and the C. I. O. each represents a substantial number of employees in the unit hereinafter found appropriate.5 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. 0 The Trial Examiner stated that the Independent submitted a petition by which the sig- natories applied for membership in the Independent , 'to which was appended 53 signatures. Forty-five of the signatures , thereon, appeared to be original and genuine and 8 were allegedly written by direction of the persons named Four signatures were undated and the remainder were dated June 9, 1943. Forty-four of the signatures thereon were names appearing on the Company's pay roll of July 10, 1943. Said pay roll contains the names of 55 employees in the appropriate unit. The Tttal Examiner further stated that the C I 0 submitted 66 membership cards dated Apt ii 8, 1943, and bearing apparently genuine original signatures. Forty-three cards bore names appearing on the Company's pay roll of July 10, 1943. COTTON TRADE WAREHOUSES, INC. 153 IV. THE APPROPRIATE UNIT The parties are in substantial agreement that the unit previously covered by the C. I. O. contract is appropriate. The only dispute concerns certain so-called "key men" whom the C. I. O. alone would exclude. "Key men" is an informal designation given by the C. I. O. to those employees who, by virtue of long experience, have attained a certain facility in the performance of their work and whom the Company rewards through higher wages. No such classification ap- pears on the Company's pay roll records and the employees so desig- nated were covered by the C. I. O. contract. The C. I. O. asserts that "key men," and particularly David Fair, McGrady Shelton, Willis Joiner, and Marcelino Masquera, are gang captains or pushers and exercise supervisory authority over the men working with them. The Company and the Independent deny this assertion and it finds no support in the record. We find that "key men" possess no supervisory authority and shall include all such employees in the unit. In accordance with the foregoing and the agreement of the parties, we find that all employees of the Company at New Orleans, Louisiana, including the so-called "key men," but excluding the superintendent, the assistant superintendent, foremen, engineers and firemen, watch- men, messenger-truck driver, temporary construction and maintenance employees, office employees, clerical employees, and all supervisory em- ployees with authority to hire, promote, discharge, discipline, or other- wise 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 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 the Direction of Election, herein, subject to the limitations and additions set forth in the Direction. 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 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 154 DEMSIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation, to ascertain representa- tives for the purposes of collective bargaining with Cotton Trade Ware- houses, Inc., New Orleans, Louisiana, 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 supervision of the Regional Director, for the Fifteenth 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 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 Independent Warehousemen's Union of New Orleans, Louisiana, or by Interna- tional Longshoremen's & Warehousemen's Union, Local 207, C. I. 0., for the purposes of collective bargaining, or by neither. CHAIRMAN MILLIS took no part in the consideration of the above Decision and Direction of Election.