Dibrell Brothers Inc.

In the Matter 'of DIBRELL BROTHERS INC. and TOBACCO WORKERS INTERNATIONAL UNION, AFL 3 Case No. 5-R-1716.Decided November .2, 1944 Messrs. Frank Talbott, Jr., and W. C. Heard, of Danville, Va., for the Company. Mr. George Benjamin, of Richmond, Va., and Mrs. Maude V. Fitz- gerald, of Danville, Va., for the Union. Mr. Philip Licari, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Tobacco Workers International Union, AFL, herein called the Union, alleging that a question affecting com- merce had arisen concerning the representation of employees of Dibrell Brothers Inc., Danville, Virginia, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before George L. Weasler, Trial Examiner. Said hearing was held at Danville, Virginia, on October 17, 1944. The Company and the Union appeared and participated. All parties were afforded° full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. At the close of the hearing, the Company moved to dismiss the peti- tion on the ground that a prior consent election bars the present pro- ceeding. The motion was referred to the Board by the Trial Ex- aminer. For reasons stated in Section III, infra, the motion is denied. Subsequent to the hearing, the Company filed with the Board a motion to correct the record in certain respects. The Union, having been apprised by the Board of the Company's motion, has filed no objec- tions within the time provided therefor. The motion is hereby granted and, the record is corrected accordingly. The Trial Examiner's rul- ings madeat'the hearing are free from prejudicial error and are hereby affirmed. • All parties were afforded an opportunity to file briefs with the Board. 59 N. L. R. B, No. 86 f 429 430 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 Dibrell Brothers Inc., a Virginia corporation, is engaged in the purchasing, processing, storing, and selling of leaf tobacco at Danville, Virginia. During the year ending June 30, 1944, the Company pur- chased green tobacco valued in excess of $6,000,00p, of which approxi- mately, 75 percent originated outside the State of Virginia. During the same period the Company sold tobacco valued in excess of $7,000,- 000, of which approximately 90 percent was shipped to points outside the State of Virginia. The, Company admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Tobacco Workers International Union, affiliated with the American ' Federation of Labor, is a labor organization admitting to member- ship employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On August 4, 1944, a consent election among the Company's em- ployees was held under the auspices of the Board? The Union failed to obtain a majority of the votes cast and thereafter filed objections to the conduct of the election. Subsequently, it requested permission of the Board to withdraw its objections and its petition. Permission was granted and the case was closed on September 22, 1944. Thus, no bargaining representative was chosen as a result- of the consent election. Sometime during the month of September, the Union advised the Company that it then represented a majority of the Company's employees and wished-to be recognized as their sole bargaining representative. The Company refused to recognize the Union until it was certified by the Board in an appropriate unit. The Company urges that the petition in the instant proceeding be dismissed because of the prior consent election. However, the Union has submitted new evidence of substantial representation among the Company's employees consisting of at least 142 applica- tions for membership dated since the' time of the consent election? 1 Case No. 5-R-1634. I See footnote 5, infra. DIBRELL BROTHERS INC. 431 Furthermore, the record indicates that, in the past 90 days, the Company has substantially increased the number of its employees.3 We find, therefore, that there is no bar to the present proceeding.4 A statement of a Field Examiner for the Board, introduced into evidence at -the hearing, indicates that the Union represents a substantial number of employees in the unit hereinafter found appropriate.' 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. TV. THE APPROPRIATE UNIT The parties agree to a unit consisting of "all employees at the Company's plant in Danville, Virginia, working with or handling tobacco, or classed as tobacco workers, including truck drivers, but excluding all clerical employees, firemen, and all supervisory em- ployees of the rank of assistant foreman, foreman and above, and all other supervisory 'employees. .. ." However, the Company de- sires to exclude cooper shop employees from the unit, whereas the Union seeks their inclusion. The Company maintains as part of its operations a cooper shop located in a building acro-s the street from its main plant. In,the cooper shop, the Company manufac,u_•es hogsheads for the purpose of packing its tobacco. In connection with its cooper shop activities, the Company employs an individual under an- arrangement whereby he builds hogsheads on a piece-work basis.' This person, in turn, hires four employees who help him build hogsheads and whom he pays out of the proceeds he receives from the Company for the total number of hogsheads produced during any given period of time. Although the Company does not hire the cooper shop workers directly, they appear on the Company's pay roll and are subject to the same work- ing conditions as the Company's other employees.7 We further note that, during slack seasons in the cooper shop, the Company employs the cooper shop workers as regular tobacco workers. The record dis- closes that the Company depends entirely on the cooper shop for its 3 During July 1944, the Company had in its employ approximately 60 workers The record discloses that it now employs in excess of 500 workers. 4See MatteOof New York Central Iron Works, Hagerstown, Maryland, 37 N. L. R. B. 894, and Matter of The Mead Corporation, 58 N L R B. 1645 'The Field Examiner reported that the Union submitted 49 membership cards and 142 applications for membership , and that all of the applications for membership bear dates subsequent to August 4, 1944. He further reported that there were 474 employees in the unit alleged to be appropriate. 5 George Washington Robinson is the individual concerned. - ' The Company's general superintendent testified that the cooper shop workers appear on the Company 's pay roll for the purposes of complying with the provisions of the Federal Social Security Act and the Federal Fair Labor Standards Act. 618683-45-vol. 59--29 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ° supply of hogsheads, thereby inakii g the cooper shop operations an integral part of its activities. In view of the above facts, we find that the cooper shop workers are the Company's employees and have a substantial interest in the Company's worki_;hg conditions. We shall, therefore, include all cooper shop' workers except for the person in charge of the shop. We find, in accordance with, the agreement of the parties and our foregoing determination, that all employees at the Company's plant in Danville. Virginia, working with or handling tobacco, or classed as tobacco workers, including truck drivers, an(] all cooper shop em- ployees (except for the person in charge of the cooper shop), but excluding all clerical employees, firemen,.all supervisory employees of the rank of assistant foreman, foreman and above, and all other supervisory employees with authority to hire, promote, 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 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 the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. 1 DIRECTION OF ELECTION By virtue of and pursuant to the power vestZA 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 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Dibrell Brothers Inc., Danville, Virginia, an election by secret ballot shall be con- ducted 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 Fifth Region, acting in this mater as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, 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 employees who did not work during DIBRELL BROTHERS INC. 433 the said 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 and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by Tobacco Workers International Union, AFL, for the purposes of collective bargaining.