Foley Lumber & Export Corp.

In the Matter of FOLEY LUMBER & EXPORT CORPORATION, VIRGINIA- CAROLINA CHEMICAL CORPORATION , WILSON & TOOMER FERTILIZER COMPANY, NACO FERTILIZER COMPANY, AND FLORIDA AGRICULTURAL SUPPLY COMPANY, EMPLOYERS and THE UNITED FERTILIZER AND *ALLIED WORKERS UNION OF AMERICA, PETITIONER In the Matter of NACO FERTILIZER COMPANY, VIRGINIA-CAROLINA CHEMICAL CORPORATION, AND FOLEY LUMBER & EXPORT CORPORATION, EMPLOYER-PETITIONERS and THE UNITED FERTILIZER AND ALLIED WORKERS UNION OF AMERICA and FOOD, TOBACCO, AGRICULTURAL & ALLIED WORKERS UNION OF AMERICA, LOCAL 4-A, C. I. 0. Cases Nos. 10-R-1777 through 10-R-1781 and 10-RE-16 through 10-RE-18, respectively.Decided August 16,1946 Mr. A. Y. Milan, of Jacksonville, Fla., for Wilson & Toomer Fertilizer Company, and Florida Agricultural Supply Company. Messrs. B. W. Haynes, R. S. Jones, and W. B. Hicks, of Jackson- ville, Fla., for Wilson & Toomer Fertilizer Company. Mr. J. H. Jackson, of Jacksonville, Fla., for Florida Agricultural Supply Company. Messrs. W. H. Klee and- W. E. Abbott, of Jacksonville, Fla., for Naco Fertilizer Company. Adair, Kent, Ashby & McNatt, by Mr. 0. C. Beakes and Messrs. E. Cheasson and L. Foley, all of Jacksonville, Fla., for Foley Lumber and Export Corporation. Mr. R. C. Riley, of Jacksonville, Fla., for Virginia-Carolina Chemi- cal Corporation. Mr. E. D. Koelman, of Jacksonville, Fla., for The United Fertilizer and Allied Workers Union of America. Mr. J. G. Lackner, of Jacksonville, Fla., for Food, Tobacco, Agri- cultural & Allied Workers Union of America, Local 4-A, C. I. 0. Mr. Harvey B. Diamond, of counsel to the Board. 70 N. L. R. B., No. ?. 73 74 DECISIONS OF NATIONAL LABOR RELATIONS ' BOARD ' DECISION DIRECTION OF ELECTIONS AND ORDER Upon - petitions duly filed,, hearing in these cases 2 was held at Jacksonville, Florida, on May 17 and 20, 1946, before Albert D. May- nard, Trial Examiner. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Trial Examiner reserved ruling for the Board on motions made by Food, Tobacco, Agricultural & Allied Workers Union of America, Local 4-A, C. I. 0., hereinafter called Allied, to dismiss the petitions in each of the cases involved herein. For reasons hereinafter stated the motions are hereby denied. ' Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT- 1. TILE BUSINESS OF TILE EMPLOYERS Foley Lumber & Export Corporation is a Florida corporation having its offices and plant in Jacksonville, Florida, where it is engaged in the manufacture, distribution, and sale of finished lumber. During 1945, Foley Lumber & Export Corporation purchased raw materials valued at in excess of $1,000,000, 33 percent of which was received from points outside the State of Florida. During the same period, it sold finished products valued at in excess of $1,000,000, approximately 66 percent of which was shipped to points outside the State of Florida. Virginia-Carolina Chemical Corporation is a Virginia corporation operating a plant in Jacksonville, Florida, for the manufacture of com- mercial fertilizer, and 35 other plants in various cities in, the United States. The Jacksonville, Florida, plant is the only one involved in this proceeding. During 1945, the Jacksonville plant purchased raw materials valued at in excess of $500,000, approximately 66 percent of which was received from points outside the State of Florida. Dur- ing the same period finished products valued at in excess of $500,000 were produced and sold by the Jacksonville plant, approximately 5 percent of which was shipped to points outside the State of Florida. Wilson & Toomer Fertilizer Company is a Florida corporation oper- ating a plant in Jacksonville, Florida, where it is engaged in the 1 On May 9, 1946 , the Board issued an Order consolidating the cases herein. 2 At the hearing Naco Fertilizer Company moved for leave to withdraw its petition in Case No. 10-RE-16. The Trial Examiner reserved decision on the motion for the Board. Inasmuch as the withdrawal of the petition will not affect the proceedings herein, the motion is hereby granted, and we shall sever Case No. 10-RE-16 from the instant pro- ceeding. FOLEY LUMBER & EXPORT CORPORATION 75 manufacture of fertilizers, sulphuric acids, and sodium-silico-fluorides. During 1945, Wilson & Toomer Fertilizer Company purchased raw materials valued at in excess of $1,000,000, approximately 85 percent of which-was received from points outside the State of Florida. Dur- ing the, same period, it sold finished products valued at in excess of $1,000,000, of which less than 5 percent was shipped-to points outside the State of Florida. Naco Fertilizer Company is a West Virginia corporation having its main offices in New York City and branches in Charleston, South Carolina; Spartanburg, South Carolina; Wilmington, North Caro- lina ; Findlay, Ohio ; and Jacksonville, Florida. The Jacksonville, Florida, plant, which is the only one involved in this proceeding, is engaged in the production and sale of commercial fertilizers, insecti- cides and fungicides. During 1945, the Jacksonville plant purchased raw materials valued at in excess of $1,000,000, 85 percent of which was received from points outside the State of Florida. During the same period it,sold finished products valued at in excess of $1,000,000, less than 5 percent of which was shipped to points outside the State of Florida. Florida Agricultural Supply Company is a Florida corporation operating a plant in Jacksonville, Florida, where it is engaged in the manufacture and sale of insecticides and fungicides. During 1945, Florida Agricultural Supply Company purchased raw materials val- ued at in excess of $500,000 of which 57 percent was received from points outside the State of Florida. During the same period it sold finished products valued at in excess of $1,000,000, less than 1 percent of which was shipped to points outside the State of Florida. The Employers admit and we find that they are engaged in com- merce' within the meaning of the National Labor Relations Act. , II. THE ORGANIZATIONS INVOLVED Food, Tobacco, Agricultural & Allied Workers Union of America is a labor -organization affiliated with the Congress of Industrial Or- ganizations claiming to represent employees of the Employers. The United Fertilizer and Allied Workers Union of America, herein called United, is a labor organization claiming to represent employees of the Employers.3 s Allied contends that the petitions herein are improper inasmuch as the United is not a labor organization within the meaning of the Act. Section 2 (5) of the Act provides, "The term 'labor organization ' means any organization of any kind , or agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part , of dealing with employers concerning grievances , labor dis- putes, wages , rates of pay, hours of employment , or conditions of work ." Although the United has not yet completed drafting its constitution and bylaws , it nevertheless is a functioning organization with an executive committee , officers, and grievance committees in each of the plants involved herein, and it has processed grievances on behalf of employ- ees of the Employers. We therefore find no merit in Allied 's contention. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTIONS CONCERNING REPRESENTATION Each of the Employers refuses to recognize either Allied or United as the exclusive bargaining representative of its employees until one of the labor organizations has been certified by the Board in an appropriate unit. In 1943, Allied chartered Local 4-A and sent an' International representative, who was also business agent of the Local, to Jackson- ville to organize the employees of the Employers herein. Since then Local 4-A had executed contracts with each of the Employers 4 and with one other company.5 On January 28, 1946, the International president notified the International representative that his services were terminated effective February 1, 1946, and that the Regional Director of the International would take over the affairs of the Local. However, at a general nlembership meeting of the Local held on February 6, 1946, some 400 members who were present voted to retain the service of the business agent and to disaffiliate from the Interna- tional and continue the Local as an independent organization to be called United Fertilizer and Allied Workers Union of America. All the officers and committee members of Local 4-A were reelected` to similar positions in the new organization. In the meantime, the International Regional Director had also called 'a meeting on Febru- ary 3, 1946, which was attended by approximately 40 members who voted to continue Local 4-A and elected new officers and a new execu- tive committee. Each organization now claims to be the legal successor to original Local 4-A and each has demanded of the Employers that they bargain with it exclusively in accordance .with the terms of their contracts. Allied opposes a present determination and contends that the contracts bar the proceeding herein. The conflicting claims of successorship establish that there is an unresolved doubt with respect to the identity of the labor organization which the employees desire to represent theme Under such circumstances, we find that the contracts do not. constitute a bar to a present determination of representatives .7 4 Contracts in effect as of the date of the hearing are as follows : Foley Lumber & Export Corporation-executed October 1, 1945, expired July 28, 1946 ; Virginia-Carolina Chemical Corporation-executed August 27, 1945, expires August 27, 1946; Wilson & Toomer Ferti- lizer Company-executed June 30, 1945, expired June 30, 1946; Naco Fertilizer Com- pany-executed August 22, 1945; expires August 22, 1946; Florida Agricultural Supply Company-executed October 1, 1945, expires September 30, 1946. - Eppinger and Russel. This company is not involved in the proceeding herein, and its employees have remained members of Allied. Matter of Brenizer Trucking Company, 44 N. L. R. B. 810; Matter of Central Pattern and Foundry Company, 51 N. L. R. B 400; Matter of Sealed Power Corporation, 41 N. L R. B. 1225; Matter of Olive & Meyers Manufacturing Company, 59 N. L. R. B. 650; Matter of Carson Parse Scott & Company, 69 N. L. R. B. 935 7 We note that at least two of the contracts have already expired and that the others will expire within the near future. We would not consider the contracts which have expired a bar to a present determination in any event. FOLEY LUMBER & EXPORT CORPORATION 77 We find that a question affecting commerce has arisen concerning the representation of employees of the Employers, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNITS United seeks a unit of production employees in each of the plants involved herein.s The Employers are in accord with the composition of the units sought by United. Allied does not oppose the unit com- position as requested by United and the Employers in four of the plants, but contends that the unit sought at the Wilson & Toomer Fertilizer Company plant is inappropriate inasmuch as it would ex- clude certain skilled maintenance employees. The maintenance crew of the Wilson & Toomer Fertilizer Com- pany plant consists of carpenters, electricians, millwrights, machinists, welder-mechanic, and crane operators. They work under the super- vision of a chief mechanic, who is directly responsible to the superin- tendent of the plant. They have different wage scales and working hours from the production employees and the Company maintains a separate building for their use. The Company's personnel policy for maintenance employees differs from that for production employees in that the former receive longer vacation periods and, together with supervisory employees, participate in bonus and group insurance pro- grams. The contracts executed by the Company and Local 4-A have always excluded the maintenance employees from their coverage, and at no time have any of these employees requested membership in either labor organization. In support of its contention that the unit sought is inappropriate Allied points out that the maintenance employees are white whereas the production employees are colored, and that therefore the unit is based on racial distinctions. We do not agree with this contention. The Board has consistently held that such factor is ii relevant in de- termining the appropriateness -of a bargaining unit.9 We are of the opinion that the maintenance employees are a homogeneous, skilled, multiple-craft group whose interests differ from those of the produc- tion employees, and who therefore could constitute a separate appro- priate unit if one were sought. In view of the foregoing, and of the The approximate number of employees in each of the alleged appropriate units is as follows : Foley Lumber & Export Corporation-127; Virginia-Carolina Chemical Corporation-43; Wilson & Toomer Fertilizer Company-160; Naco Fertilizer Company-50; Florida Agricultural Supply Company-22 Matter of U. S. Bedding Company, 52 N. L. R. B . 382 ; Matter of Colorado Fuel and Iron Corporation, 67 N. L. R. B. 100. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previous bargaining history, we shall exclude the maintenance em- ployees from the unit hereinafter found appropriate to We find, in accordance with the foregoing determination and sub- stantially in accord with the agreement of the parties, that the follow- ing groups of employees of the Employers herein, excluding watchmen, office and clerical employees, employees specifically excluded herein- after, and all or any supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of•employees, or effectively recommend such action, constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: 1. All employees of the Foley Lumber & Export Corporation em- ployed.at its Talleyrand Avenue plant, Jacksonville, Florida, includ- ing truck drivers, but excluding talleymen, timekeepers, and tem- porary employees. 2. All employees of the Virginia-Carolina Chemical Corporation employed at its Jacksonville, Florida, plant, excluding gang foremen. 3. All employees of the Wilson & Toomer Fertilizer Company em- ployed at its Jacksonville, Florida, plant, excluding the storeroom clerk, electric crane operators, carpenters, electricians, millwrights, machinists, wel°ler-mechanic, and the master mechanic. 4. All employees of the Naco Fertilizer Company employed at its Jacksonville, Florida, plant, including truck drivers. 5. All employees of the Florida Agricultural Supply Company employed at its Jacksonville, Florida, plant, including the truck driver. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by elections by secret ballot, subject to the limitations and additions set forth in the Direction. Allied contends that the 'Board should defer issuing its Direction of Elections in the instant proceeding pending a determination of the charges filed against each of the Employers herein alleging unfair labor practices 11 After investigation, the Regional Director dis- missed ° the charges and on April 1, 1946, notified the parties that he declined to issue complaints. No request to review -the action of the Regional Director has been received by the Board, and we therefore see no reason to delay proceeding with the present cases.12 10 See Matter of Tobacco By-Products and Chemical Corporation , 64 N. L. R. B. 252, and cases cited therein. "Case No. 10-C-1872, Foley Lumber & Export Corporation ; Case No. 10-C-1873, Vir- ginia-Carolina Chemical Corporation ; Case No. 10-C-1874, Wilson & Toomer Fertilizer Company ; Case No. 10-C-1875, Naco Fertilizer Company ; Case No. 10-C-1876 , Florida Agricultural Supply Company. 12 Matter of Durasteel Company, 67 N. L R . B. 1295. FOLEY LUMBER & EXPORT CORPORATION DIRECTION OF ELECTIONS 79 As part of the investigation to ascertain representatives for the purposes of collective bargaining with Foley Lumber & Export Corporation, Virginia-Carolina Chemical Corporation, Wilson & Toomer Fertilizer Company, Naco Fertilizer Company, and Florida Agricultural Supply Company, all of Jacksonville, Florida,, elections 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 direc- tion and supervision of the Regional Director for the Tenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, among the employees in the units 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 quite or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by United Fertilizer and Allied Workers Union of America, or by Food, Tobacco, Agricul- tural & Allied Workers Union of America, Local 4-A, C. I. O:, for the purposes of collective bargaining, or by neither. ORDER IT IS HEREBY ORDERED, pursuant to Article III, Section 13 (c) (4), of National Labor Relations Board Rules and Regulations-Series 3, as amended, that Case No. 10-RE-16 be, and it hereby is, severed. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision, Direction of Elections, and Order.