The Ellis Canning Co.

In the Matter of N . L. KOIN AND D. M. KoIN, A PARTNERSHIP D/B/A THE ELLIS CANNING COMPANY and WAREHOUSING , PROCESSING AND DISTRIBUTING UNION, No. 217, AFFILIATED WITH INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, C. I. O. Case No. 17-R-1339.-Decided April 16, 1946 Mr. Ira C. Rothgerber, of Denver, Colo., for the Company. Mr. Louis Levin and Mrs. Eunice Dolan, of Denver, Colo., for the I. L. W. U. Mr. Philip flornbein, Jr., of Denver, Colo., for the Teamsters. Mr. Harry R. Ehrlich, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by Warehousing, Processing and Distributing Union, Local No. 217, affiliated with the Interna- tional Longshoremen's and Warehousemen's Union, C. I. O., herein called I. L. W. U., alleging that a question affecting commerce had arisen concerning the representation of employees of N. L. Koin and D. Al. Koin, a partnership d/b/a The Ellis Canning Company, Denver, Colorado, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Daniel J. Leary, Trial Examiner. The hearing was held at Denver, Colorado, on March 12 and 13, 1946. The Company, the I. L. W. U., and Produce Drivers, Helpers and Warehousemen, Local Union No. 452 of the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, affiliated with the A. F. of L., here- in called the Teamsters, 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. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the Teamsters moved to dismiss the petition for lack of a question concerning representation. ' At the hearing the name of the Company was amended as designated above. 67 N. L. R B., No. 54. 384 THE ELLIS CANNING COMPANY 385 The Trial Examiner referred this motion to the Board. For reasons stated hereinafter, the motion is hereby denied. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Ellis Canning Company is a partnership consisting of N. L. Koin, and D. M. Loin, existing by virtue of and pursuant to the laws of the State of Colorado, with its principal office and plant in Den- ver, Colorado. The Company is engaged in the business of proc- essing and producing foodstuffs. During the year 1945, the Com- pany bought produce and materials of an approximate value in excess of $500,000, approximately 70 percent of which was produced and transported to it from points outside the State of Colorado. Dur- ing the same period, approximately 60 percent of the finished prod acts of the Company was sold and transported to points outside the State of Colorado. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Warehousing, Processing and Distributing Union, No. 217, is a labor organization , affiliated with International Longshoremen's and Warehousemen's Union, C. I. 0., admitting to membership employees of the Company. Produce Drivers, Helpers and Warehousemen, Local Union No. 452 of the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , is a labor organization , affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On January 21, 1946, the I. L. W. U. notified the Company by letter that it represented a majority of its employees and requested a meet- ing for the purposes of collective bargaining , and on the same date filed its petition herein . The Company did not reply to the I. L. W. U.'s request. Since December 16, 1941, the Teamsters has had a written bar- gaining contract with the Company covering its production and maintenance employees . The last contract provided that it should be effective from July 1, 1945 , to July 1, 1946 , and from year to year 692148-46-vol. 67-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter unless terminated in writing by either party upon 45 days' notice prior to its yearly expiration date. The Teamsters contends that the foregoing contract is a bar to a present determination of representatives. The I. L. W. U. contends that the contract is not a bar because the Teamsters is no longer functioning effectively as the bargaining representative of these employees. Although there may be a considerable group of employees who are dissatisfied with the representation accorded them by the Teamsters, the record discloses that the Teamsters has not ceased to function as the bargaining representative of the Company's employees. It has taken up grievances with the Company and secured wage adjust- ments for the employees. Although the Teamsters agreed not to invoke the closed-shop provision of its contract for the period of the war, it appears that it did so because of the labor shortage and its pledge of non-stoppage of work. We are of the opinion that the Teamsters is still a functioning labor organization capable of admin- istering its contracts.2 However, inasmuch as the contract may be terminated in less than 2 months upon notice by either party thereto, we find that it is not a bar to a determination of representatives within the next thirty (30) days pursuant to our usual Direction of Election. However, any certification of representatives which we may issue as a result of the election shall be for the purpose of designating a rep- resentative to negotiate a new contract to succeed the contract now in effect.' A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the I. L. W. U. represents a substantial number of employees in the unit hereinafter found appropriate .4 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. IV. THE APPROPRIATE UNIT The parties are in substantial agreement that the appropriate unit should consist of all production and mainteBance employees of the Company, excluding office and clerical employees, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively rec- 2 See Matter of Douglas Public Service Corporation , 62 N. L. R. B. 651 ; Matter of White Brothers Smelting Corporation, 61 N L R. B 340; and Matter of Creamer & Dunlap, 60 N. L. R. B. 437. 3 See Matter of Peerless Stages, Inc., 62 N. L R B. 1514, and Matter of Joseph Dyson c6 Sons, Inc., 60 N L. R. B. 867 4 The Field Examiner reported that the I L W. U. submitted 84 cards , bearing the names of 69 employees, listed on the Company's pay roll of January 23, 1946. At the hearing, the I. L. W. U. submitted 4 cards bearing the names of 4 employees hired since January 23 , 1946. The Teamsters relied upon its contract as evidence of its interest. There are approximately 95 employees in the appropriate unit. THE ELLIS CANNING COMPANY 387 ommend such action. The parties disagree, however, as to janitors, firemen, watchmen, and stationary engineers. The I. L. W. U. would include these employees with the production and maintenance em- ployees. The Teamsters would exclude them on the ground that they have not been part of the production and maintenance unit estab- lished by the contract between itself and the Company. Although the record does not disclose that the disputed employees have interests or duties which would of necessity prevent their inclu- sion in the present bargaining unit, in the absence of any compelling circumstances warranting a departure therefrom, we shall adhere to our usual practice and not disturb the contract unit established as the result of collective bargaining between the Company and the Teamsters. Accordingly, we shall exclude janitors, firemen, watch- men, and stationary engineers from the unit involved in this proceed- ing. Our finding in this respect, however, shall not preclude a later determination, based upon a new petition and a sufficient showing of representation, that these employees may be offered an opportunity to vote as to their inclusion in the larger unit herein found appro- priate.5 We find that all production and maintenance employees - of the Company at its Denver, Colorado, plant, excluding office and clerical employees, janitors, firemen, watchmen, stationary engineers, and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES Inasmuch as the plant is not now operating, the I. L. W. U. requests that in determining eligibility to vote the Board use the company pay roll for the week ending February 13, 1946, the last week in which the plant was in full operation. However, all employees are deemed by the Company to be only temporarily laid off and, therefore, under the Board's customary practice, retain their voting rights. Accord- ingly, we see no reason to depart from our usual practice in this regard. We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among 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. See Matter of Petersen & Lytle, 60 N. L. R. B. 1070 , and subsequent cases. Including beef-boners who it appears perform pioduction duties, and excluding out-of- State truck drivers whose duties and interests, we are of the opinion, differ substantially from those of the production and maintenance employees 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with N. L. Koin and D. M. Koin, a partnership d/b/a The Ellis Canning Company, Denver, Colorado, 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 Direc- tor for the Seventeenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations , among 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 em- ployees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election , to deter- mine whether they desire to be represented by Warehousing , Process- ing and Distributing Union, No. 217, affiliated with the International Longshoremen's and Warehousemen's Union, C. I. 0., or by Produce Drivers, Helpers and Warehousemen, Local Union No. 452 of the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , affiliated with the A. F . of L., for the purposes of collective bargaining, or by neither.