R. J. Reynolds Tobacco Co.

In the Matter of R. J. REYNOLDS TOBACCO COMPANY, EMPLOYER and UNITED TRANSPORT SERVICE EMPLOYEES, TOBACCO WORKERS DIVI- SION, CIO, PETITIONER Case No. 34-RC-95.-Decided May 3, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Miles J. McCormick, hearing officer of the "National Labor Relations 'Board. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in the business of manufacturing and selling cigarettes and other tobacco products at Winston-Salem, North Carolina. In the conduct of its business the Employer operates sev- eral redrying plants.' Only the redrying plant at Greensboro, North Carolina, is involved in this proceeding. All material for hogsheads, with the exception of coal, is shipped to Greensboro from Winston-Salem .2 During the 1947 season green leaf tobacco valued at more than $31,000,000 was brought to the redrying plant at Greensboro to be treated, of which approximately 40 percent was shipped from points outside the State of North Carolina. After the green leaf tobacco has been treated at the redrying plant at Greensboro, it is•shipped to storage warehouses in North Carolina, where it is kept for at least 18 months. The tobacco is then sent to Winston-Salem where it is processed and manufactured into cigarettes and other tobacco products.-3 The Employer asserts that the operations here involved are not within the Board's jurisdiction because, (1) the plant at Greensboro is engaged in redrying green leaf tobacco which has come to rest in the State of North Carolina, and which does not become an object of inter- state commerce until it is processed and manufactured into tobacco, I There are five redrying plants outside the State of North Carolina. 2 At least 50 percent of the material going into hogsheads was shipped to Winston- Salem from points outside the State. 3 The Employer admits that the Board has jurisdiction over its operations at Winston- Salem, North Carolina. 83 N. L. R. B., No. 46. 348 R. J. REYNOLDS TOBACCO COMPANY 349 products for sale more than 18 months later, and (2) the operations at Greensboro are seasonal, and there is such a large turn-over of eni- ployees,4 that they do not have the mutuality of interest to constitute a representative group for bargaining purposes. The Board's jurisdiction is not dependent solely upon the extent to which the Greensboro plant, viewed as a separate enterprise is engaged in interstate commerce.5 The operations of the Greensboro plant constitute an integral part of the Employer's over-all business enter- prise, which clearly is interstate in nature. The fact that the goods come to rest in the State prior to their manufacture into finished prod- ucts, or that the Employer's operations at the Greensboro plant are seasonal, does not destroy the interstate character of the Employer's operations.° Accordingly, we find that the Employer's operations affect com- merce within the meaning of the Act. 2. The Petitioner is a labor organization claming to represent cer- tain employees of the Employer. At the hearing, United Tobacco Workers, herein called the Inter- venor, moved to intervene. The Petitioner opposed this motion on the ground that the Intervenor is acting on behalf of the Food, Tobacco, Agricultural and Allied Workers of America, CIO, Local 22, herein called the FTA, which is not in compliance with the filing require- ments of the Act. The hearing officer permitted the Intervenor to participate in the hearing, but reserved ruling on its motion to inter- vene for the Board.7 The following evidence was adduced at the hearing with respect to the Intervenor: The persons responsible for the formation of the Intervenor were Mrs. Jessie Robinson, an employee at the Employer's Greensboro plant, Effie T. Butler and Mary Waddell, both voluntary organizers The Greensboro plant operates from about August to January . During the 1947 season 1,225 persons were employed to fill 510 jobs. Of the 1,225 persons employed in 1947, only 288.returned to work in the 1948 season. Since September 22, 1948 , 44 of these em- ployees had left the Employer 's employ. E Matter of Ford Motor Co., 66 N. L. R. B. 365. Cf. Matter of Royal Palm Ice Company, 81 N. L R B . 858; Matter of Kentucky Utilities Company, 81 N. L. R.'B. 1006; Matter of Ritchie Grocer Company, 80'N. L. R. B. 285 ; Matter of Thaihimer Brothers, Incorporated, 81 N. L. R. B. 1175 ; Matter of Celanese Corporation of America, 81_N. L. R. B. 1041. 9 Cf. Matter of Save Electric Corporation, Verd-A-Ray Processing Co., 79 N. L. It, B. 370; Matter of Longhorn Sash and Door Company, 79 N. L. R. B. 1430 ; Matter of Cities Service Oral Co . of Pennsylvania (Marine Division ), 80 N. L. R. B. 1512 ; Matter of Cain Canning Company, 81 N. L. R. B. 213. I The Petitioner also objected to the intervention of the Intervenor on the ground that the Intervenor is not in compliance with the filing requirements of the Act. The hearing officer properly refused to permit evidence to prove this fact . Such showing is purely an administrative matter for the Board to determine, and not litigable at a hearing. Matter of General Beverages Company, 81 N. L. R. B. 047; Matter of Hughes Aircraft Company, 81 N. L. R. B. 867 . Moreover, we have administratively determined that the Intervenor is in compliance.. , 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Intervenor. Butler was secretary-treasurer and on the execu- tive board of the FTA from May 1947, until July 1, 1948. Although Butler testified that she severed her relations with the FTA in July 1948, the record shows that she distributed literature for the FTA at the time the Greensboro plant reopened in August 1948 for the 1948- 1949 season, and continued such activity on behalf of the FTA until the formation of the Intervenor. Robinson testified that she decided to form another union because the FTA had not complied with the filing requirements of the Act, and when the plant reopened in August 1948, she spoke to several employees about organizing a new union. In September, Karl Kar- stad, a regional director for the FTA, approached her at the plaint, and asked if the employees were trying to organize a union. Robin- son invited him to attend an organizational meeting to be held at her home on September 15. Karstad came to this meeting with Butler, Waddell, Bronner Torain, and Curtis Raleigh." One other person, not identified in the record, was at this meeting. Although the evi- dence relating to this meeting is conflicting, it is undisputed that Karstad spoke for about 5 minutes before the meeting started and then left.' Robinson testified'that she invited Karstad to attend the meeting because she had talked to many union representatives and "wanted to get the truth,",that she "had tried everybody elso so [she] thought [ she] might try him." Robinson could name no union representative that she had spoken to, and the record shows that she made no effort to get in touch with any :other union representives in Greensboro. Nor did she call the local CIO office, or the State office in Charlotte, North Carolina, to attempt to obtain information concerning union organizations. _ Although president Of the Intervenor, Robinson herself did very little work to perfect its organization. She requested Butler and Waddell to act as organizers, and apparently left all decisions to their discretion. Waddell appears to have been responsible for most of the work accomplished on behalf of the Intervenor.1° She represented the Intervenor at - a prehearing conference held at the Employer's plant in Winston-Salem in October 1948, ,and hired an attorney from Washington, D. C., to represent the Intervenor at the conference in :The officers - of the Intervenor as, shown on the affidavit filed with the Board are : president-Mrs. Jessie Robinson ; recording secretary-Mrs. Bronner Torain ; secretary- treasurer-Curtis Raleigh. Torain sent a letter and an affidavit to the Board In October '1948, requesting that her name be removed as an officer of the Intervenor. She contends that no officer's were elected at the organizational meeting of the'Inteibeiior'., ° In her affidavit Torain stated that Butler took charge of the organizational meeting. 10 Waddell ordered the printing of, and paid for, the membership application cards, posters, and -literature for the Intervenor ; had forms , to be sent to the Board mimeo- graphed ; gave membership cards to Butler for distribution ; and made arrangements for membership meetings. } R. J. REYNOLDS TOBACCO COMPANY 351' Winston-Salem and also at the hearing on November 20, 1948, at Greensboro. Robinson testified that she did not know who was going to pay the attorney's expenses or fee for representing the Intervenor at the hearing."' Robinson, as president of the Intervenor, made no arrangements whereby the attorney would be paid at a later date 12 FTA literature was distributed at the plant when it reopened in August 1948.13 After the Intervenor was organized such distribu- tion stopped, and distribution for the Intervenor began. Butler was identified as one of the, persons handing out literature for both the FTA and the Intervenor. We cannot reconcile Robinson's professed concern in forming a labor organization which would meet the filing requirements of the Act '14 with her obvious indifference to the interests of this organization once it was formed, and with her patent lack of knowledge as to other phases of the Act and labor organizations in general, as disclosed by her testimony at the hearing. Nor are we satisfied with Robinson's explanation as to her reasons for inviting Karstad, an FTA represen- tative, to the organizational meeting of the Intervenor. The record does not disclose any adequate explanation why Robinson chose Wad- dell and Butler, both identified with the FTA, to carry on the work of forming the Intervenor.15 Nor does the record show any satisfac- tory reason why Waddell and Butler, neither of whom worked at the Employer's plant at the time of the formation of the Intervenor, were willing to work as "voluntary" organizers for the Intervenor. If we are to accept Robinson's story, despite the Intervenor's total lack of funds, a Washington attorney was hired to make two trips, one to Winston-Salem for a conference, and one to Greensboro for the hear ing. Yet Robinson had no idea who would pay for his services unless perhaps "the Labor Board would help some." It places too great a strain on our credulity to believe that a lawyer would make two inter- 11 The Intervenor has no funds, and according to Robinson , no means of obtaining any funds. Until an election is held, members are permitted to join the Intervenor without paying any initiation fee or dues. At the time of the organizational meeting it was decided that, after the election, the initiation fees will be $2, and the dues $1.50. Robinson's testimony is as follows. Q. Do you expect to pay for the service of any attorney in connection with this hearing? A. Do I expect? Q. I mean does the union expect to pay or does it expect to get its services for nothing? A. Well, practically. Q. Practically what? A. I don't know. I was under the impression that the Labor Board would help some. The Petitioner was distributing leaflets at the plant during the period of PTA, activity: 14 It is difficult for us. tos perceive Robinson's concern in this respect, ;inasmuch as ,,the PTA was not at the time the collective bargaining representative for the employees at the plant. 15 Robinson admitted that she knew Waddell had formerly engaged'in union activity for the PTA. She testified that she asked Waddell to take the necessary steps to organize the Intervenor because the latter was not working and she was. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' state trips to represent a penniless organization without a satisfactory understanding at the time of his employment in regard to how he would be reimbursed for his expenses and paid for his services. The only reasonable inference on the present state of the record is that someone other than the Intervenor was providing its legal representa- tion. We further find it significant that organizational activity for the FTA at the Greensboro plant stopped as soon as such activity was started on behalf of the Intervenor, and that Butler assisted in the dis- tribution of literature for both organizations. While, no one of these facts standing alone is proof that the Inter- venor is "fronting" for the FTA, we cannot agree with our dissenting colleagues that these facts taken together do no more than give rise to a suspicion; we believe that "the patent imponderables permeating the entire record" - give rise to an inference of "fronting." Under the circumstances, the evidence plainly was sufficient to shift the bur- den to the Intervenor to go forward with additional evidence to rebut such inference and to establish that in fact it is independent of the FTA. Its failure to do so may be taken as indicative of its inability to do so. Moreover, we cannot accept the suggestion of our dissent- ing colleagues that the absence of evidence as in the Campbell Soup case, that employees were told that designating the Intervenor would be equivalent to designating the FTA, is in any way.significant. Nor is the absence of proof that FTA actively assisted in obtaining ad- herents to the Intervenor. The Campbell Soup case happened to be a flagrant case of "fronting"; it does not follow that all cases must be similarly flagrant to be proved. Concealment from employees gen- erally that an organization is a "front" for a non-complying union by those who. launch the organization may often be indispensable to enlisting adherents as well as to successful evasion of the filing require- ments of the Act. We accordingly conclude and find from the record as a whole, that the Intervenor is acting as a "front" for the FTA. We shall, therefore, deny the Intervenor a place on the ballot in the election hereinafter directed. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. -- 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All seasbnal employees engaged in the handling, redrying, packing, prizing, loading and unloading of leaf tobacco at the Employer's re- drying and prizing plant at Greensboro, North Carolina, excluding 141. A. M. v. N. L. R..B., 311 U.. S.72, 79. II R. J. REYNOLDS TOBACCO COMPANY 353 all office and clerical employees, watchmen, medical nurses, buying personnel, and supervisors.17 5. The Employer's season at its Greensboro redrying plant usually begins the first week in August and ends sometime the following Jan- uary. Peak employment is ordinarily reached between September 15 and October 15. The parties have agreed that the eligibility date should be about October 15, 1949, when a full complement of employees may be expected at this plant."' We shall direct that the election be held during the peak of the 1949 season on a date to be determined by the Regional Director, among the employees in the appropriate unit who are employed during the pay-roll period immediately preceding the date of the issuance of Notice of Election by the Regional Director. DIRECTION OF ELECTION 19 As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted on a date to be selected by the Regional Director, subject to the instructions set forth in paragraph 5, above, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations- Series 5, as amended, among the employees in the unit found appro- priate in paragraph numbered 4, above, who, were employed during the pay-roll period immediately preceding the date of the issuance of Notice of Election by the Regional Director, including the em- ployees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the ejection, and also excluding employees on strike who are not entitled to reinstate- ment, to determine whether they desire to be represented, for purposes of collective bargaining, by United Transport Service Employees, Tobacco Workers Division, CIO, or by United Tobacco Workers, Local 22, Food, Tobacco, Agricultural and Allied Workers of Amer- ica, CIO, or by neither. 17 The parties agree that the permanent employees engaged in the maintenance of plant machinery. both durine the sesenn when the niant is in f»n -ration and h •t i h an n down, should be excluded from the unit. w e i s s UL 18 The parties agree that the eligibility date should not be before September 20, 1949. 11 Since issuance of the above Decision, the Intervenor has complied with Section 9 (f), (g), and ( h) of the Act . The Board, therefore , by Order dated September 6, 1949 , accords the Intervenor a place on the ballot. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CHAIRMAN HERZOG and MEMBER HOUSTON, dissenting : The decision of the majority to exclude the Intervenor from the ballot appears to us to be based on nothing more substantial than sus- picion. In support of it the majority cites the fact that Karstad spoke for 5 minutes before the initial meeting of the Intervenor and then left, that two employees formerly active in the FTA were active in the organization of the Intervenor, and that Robinson, the president of the Intervenor, did not give a convincing and satisfactory exposi- tion of the plans of the Intervenor for the future. All of the cited factors are equally consistent with abandonment of the FTA and for- mation of a new organization by persons not experienced in organiz- ing unions and not adept at the job. This possibility is underscored by the fact, conceded by the majority, that Waddell, who had never played a conspicuous role in FTA, was much the most active sponsor of the Intervenor. We should have supposed that it would be necessary to show, at the very least, that the Intervenor was in some manner connected with and controlled by the FTA, and that it was not seeking certification for itself but merely seeking to advance the interests of the FTA and pro- tect the FTA's interest: There is no such showing here. Unlike the situation in the Campbell Soup case,20 in which we joined unhesitat- ingly in the decision, there is no evidence that employees were given to understand that designating the Intervenor was equivalent to be- longing to the FTA. Nor is there a scintilla of proof that the FTA in any way assisted the Intervenor in obtaining any of its adherents. On the evidence here, we cannot say that there is anything more than a suspicion that the Intervenor might be acting on behalf of the FTA. We believe that the Board's power to revoke the certification, if the Intervenor should be certified and thereafter, in bargaining, show it- self merely to be the alter ego of the FTA, is adequate to deal with the situation disclosed by this particular record. No labor organization should be declared an outlaw by this Board except upon a clear pre- ponderance of the evidence.. 2176 N. L. R. B. 950.