United States Sugar Corp.

In the Matter of UNITED STATES SUGAR CORPORATION and BROTHERHOOD OF LocoMOTIvE FIREMEN & ENGINEMEN Case,No. 10-R-1306.-Decided March 31, 1945 Mr. Fred C. Sikes, of Clewiston, Fla., and Mr. Rufus G. Poole, of Washington, D. C., for the Company. Mr. L. E. Whitler, and Messrs. Harold C. Heiss, Russell B. Day, and W. W. Openlander, of Cleveland, Ohio, for the Brotherhood. Mr. Henry Lutes, of Clewiston, Fla., for the A. F. L. Mr. Julius G. Serot, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE 0 Upon a petition duly filed by the Brotherhood of Locomotive Fire- men & Enginemen, herein called the Brotherhood, alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of United States Sugar Corporation, Clewiston, Florida, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before George S. Slyer, Trial Examiner. Said hearing was held at Clewiston, Florida, on January 11, 1945. The Company, the Brotherhood, and Sugar Mill Workers Local Union No. 23211, FLU-AFL, affiliated with the Ameri- can Federation of Labor, herein called the A. F. L., 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. During the hearing, the Company moved to dismiss the petition, and the Trial Examiner referred this motion to the Board for determination. For the reasons set forth in Section III, infra, this motion is hereby granted. The Trial Examiner's rulings made at the hearing are free from prejudicial error, and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. 61 N. L. R. B., No. 23. 215 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record ^n the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY United States Sugar Corporation is a Delaware corporation, licensed to transact business in the State of Florida. It is engaged in planting, cultivating, and harvesting sugar cane and extracting raw sugar there- from; and in planting, cultivating, and harvesting lemon grass, and extracting oils therefrom. During the fiscal year ending June 30, 1944, the value of raw materials used by the corporation for mer- chandise, maintenance repair, and operating supplies, was in excess of $750,000, 90 percent of which was shipped to its plant at Clewiston, Florida, from points outside the State. During the same period, the Company sold 59,002 tons of raw sugar, all of which it shipped to a point outsidepthe State, and 4,139,000 gallons of black strap molasses. The Company also manufactured an unstated quantity of cattle feed, all of which was sold within the State of Florida. In connection with its activities, it maintains 12 plantation villages, at each of which it operates a retail store. At the time of the hearing, the Company was engaged in constructing an addition to its plant to be used for the processing of sweet potatoes into starch. . The Company admits that its operations affect commerce within the meaning of the National Labor Relations Act and we so find. H. THE ORGANIZATIONS INVOLVED Brotherhood of Locomotive Firemen & Enginemen, unaffiliated, is a labor organization admitting to membership employees of the Company. Sugar Mill Workers Local Union No. 23211, FLU-AFL, affiliated with the American Federation of Labor,-is a labor organization ad- mitting to membership employees of the Company. III. THE ALLEGED APPROPRIATE UNIT 'The Brotherhood seeks a unit composed of locomotive engineers and firemen; the Company and the A. F. L. contend that, in view of the history of collective bargaining on a plant-wide basis, the unit sought is inappropriate. The Company operates 469 freight cars and 7 locomotives on 25 miles of standard guage track. This railroad is wholly intraplant, the Company's engine crews %perating solely within the limits of its 2 yards, which are connected by main line railroads whose crews operate all trains between the yards. Although the record is not clear UNITED STATES SUGAR CORPORATION 217 on this point, the Company apparently employs 9 engineers and 2 firemen, in addition to conductors and brakemen.' The duties of the engineers and the firemen are those usual to yard engine crews. They operate the locomotives in accordance with instructions from the switchmen on the ground, building trains and delivering them to the interchange points where main line railroads take over, and also receiving trains from the main lines and delivering the various cars to their proper destinations within the yards. The loaded trains operate on a regular schedule. Apparently, the only difference be- tween the duties of these engine crews and those of yard crews in any other type of plant or railroad arises out of the need for washing some of the sugar cane after the cane has been loaded into the freight cars. The engineers shunt a cut of cars under a wash rack and each car is allowed to stand under the water until the switchman signals the engineer to proceed. During the slow season, usually between April and November, the Company affords these engineers and firemen an opportunity to work in its other production departments, and the record shows that from time to time several of these employees have availed themselves of such opportunity. During the 1944 slow season, two engineers and two firemen worked in departments other than the railroad department. The Company's engineers are thoroughly experienced, all but one of them having been trunk-line engineers prior to their employment by the Company.- All were required to undergo the physical, mechan- ical, and air-brake examinations given by trunk-line roads as a condi- tion precedent to their present employment, although the record indi- cates that, at times, the Company was not as stringent as the trunk lines and employed men who could not meet the physical requirements to the satisfaction of the trunk lines; all of the engineers are appar- ently qualified by experience and skill to work on trunk lines. All are members of the Brotherhood, many of long standing. On the other hand, the Company's railroad department is an integral part of the plant and its operations are a necessary part of the Com- pany's production activities. These engineers and firemen enjoy the same vacation and bonus policies as the other production and mainte- ' One of the en gineer,; is permanently assigned as an office clerk, although he is rated as third in seniority among the Company 's engineers The senior of the 2 firemen is perma- nently assigned as a yard clerk The Field Examiner reported that the Brotherhood submitted 7 authorization cards dated in August 1944, all of which bore apparently genuine original signatures The A F L submitted dues records for the month of November 1944, containing the names of 7 employees in the alleged appropriate unit , and also relies upon its contract to show its interest in these proceedings 2 One engineer was promoted by the Company from the position of a fireman to that of engineer. Any one of the Company's emploN ees may become a fireman after the satis- factory completion of a week's training period, but the Company will not promote a fireman to the position of engineer until he has had at least 3 years of experience as a fireman. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nance employees and the record indicates a community of interest among all of the Company's production and maintenance employees. It is apparent from the foregoing that, absent the history of collec- tive bargaining, the respective considerations for and against the segre- gation of the craft group in question from the plant-wide bargaining unit are equally balanced. We are of the opinion, however, that the bargaining history in this case is determinative of the issue. As a result of an election conducted by the Board in October 1942, pursuant to a consent election agreement, the A. F. L. was established as the exclusive bargaining representative for the Company's pro- duction and maintenance employees.3 Apparently because of a delay occasioned by the necessity for War Labor Board approval of pro- posed wage scales, the first collective bargaining agreement was not executed until May 1943, but it was made retroactive to October 1942. In October 1943, and again in October 1944, new contracts were ex- ecuted.4 Under all the three contrasts the A. F. L. represented the engineers and firemen as part of the production and maintenance employees. Prior to the 1942 consent election, the engineers and firemen' dis- cussed among themselves the then approaching election. With full knowledge of the proposed establishment of a plant-wide bargaining unit, and fully aware of the fact that the ballot was to include only the names of the A. F. L., these employees lodged no protest against the proposed unit and made no request that the Brotherhood appear on the ballot. They voted in the election. Nor was any protest forth- coming when the original contract was executed in 1943. Although refusing to cooperate in the negotiations for the second contract, these employees raised no objection to the continuance of the plant-wide unit as their bargaining representative. Indeed, the first articulate objection to the exclusive agency of the A. F. L. was not made until as late as August 7, 1944. On that date, a committee consisting of two engineers and two switchmen called upon the Company and orally requested that the Brotherhood be recognized as the exclusive bargain- ing representative for the Company's locomotive engineers, firemen, and switchmen. When that request was refused, the instant petition was filed. The petition itself is the first request for an exclusively craft I 'The Field Examiner's report shows that as of October 31 , 1944 , there were 452 pro- duction and maintenance employees included within the plant -wide unit and that the A. F L. submitted dues records indicating that 274 of these employees were members of that union 4 Although the Company and the A F. L. both urge the October 1944 contract ( presently in existence ) as a bar, they apparently do not contend that the contract itself is a bar, but rather, that the unit described in that contract is the only appropriate unit. At any rate, since this petition was filed prior to the execution of the present contract, the agree- ment itself is not a bar. UNITED STATES SUGAR CORPORATION 219 unit, the oral request having specified switchmen as among the mem- bers of the proposed unit. Although there is some indication of dissatisfaction among the engineers and firemen prior to their request for separate representa- tion,5 the record contains many instances of their participation in the bargaining activities of the A. F. L. Thus, they shared in a raise of pay obtained through the efforts of the A. F. L., and participated in a strike of all the Company's employees which resulted in another in- crease, in which the engineers and firemen shared. At least four of the engineers voluntarily joined the A. F. L.6 While it is true that the engineers and firemen, as a group, refused to nominate a shop steward to represent them on the A. F. L.'s grievance committee, this committee did handle at least two grievances on behalf of individual firemen and engineers. Moreover, one of the engineers is a member of that committee, although he does not represent the other engineers, having been selected by the production and maintenance employees working in a section of the plant where he is the only engineer. It is noteworthy that throughout the plant's bargaining history many of the engineers, if not all, were members of the Brotherhood. In view of all the facts of this case, and in the interest of stability in collective bargaining relations, we shall not disturb the unit estab- lished and maintained in accordance with the will of a majority of the Company's employees and with the knowledge and participation of the engineers and firemen.7 In reaching our conclusion, we have con- sidered those cases previously before the Board wherein we held that, under given circumstances, a craft unit may be severed from an estab- lished plant-wide unit." The factors which we considered decisive in those cases are not present here. Accordingly, we find that the unit sought by the Brotherhood is not an appropriate unit for the purposes of collective bargaining be- tween the Company and its employees. 5 They refused to cooperate with the A. F L. in the negotiations for the second and third contracts and in the preparation of the A. F L.'s bylaws and constitution. The testimony also shows that during the course of informal talks with the supervisors of the railroad department , they indicated, from time to time, their displeasure with the seniority provisions of the contracts 6 At one time , several of the engineers who belonged to both the A. F. L. and the Brotherhood sought to drop their A. F L. membership but were prevented from so doing by reason of a maintenance -of-membership clause in the contract Only the last of the 3 contracts is in evidence This agreement , executed after the petition herein was filed, contains a maintenance -of-membership clause and , apparently , the prior agreements also contained such clause 7 See Matter of American Can Co , 13 N. L R B 1252; Matter of The Procter & Gamble Manufacturing Company, 52 N L. R B 661, Matter of The Columbus Bolt Works Com- pany, 56 N L R B 1517. s Matter of Moore Drop Forging Company , 60 N. L. R B. 494 ; Matter of National Automatic Tool Company, 60 N. L R B 565, Matter of Goodyear Tire it Rubber Com- pany, 55 N. L it. B. 918, Matter of General Electric Company (Lynn River Works and Everett Plant), 58 N. L. It. B 57. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE ALLEGED QUESTION CONCERNING REPRESENTATION Since, as we have held in Section III, above, the bargaining unit Sought to be established by the petition is inappropriate for the purposes of collective bargaining , we find that no question has been raised concerning the representation of employees in an appropriate bargaining unit. Accordingly, we shall dismiss the petition. ORDER Upon the basis of the above findings of fact, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives filed by the Brotherhood of Locomo- tive Firemen & , 'Enginemen be, and it hereby is, dismissed. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order.