Southern Extract Co.

In the Matter of SOUTHERN EXTRACT COMPANY, EMPLOYER and DIS- TRICT 50, UN ITED MINE WORKERS OF AMERICA, LOCAL #12807, PE- TITIONER Case No. 10-R-1739.-Decided February 13, 1947 Messrs. Thomas G. McConnell and S. V. Minsky, of Knoxville, Tenn., for the Employer. Mr. William J. Turnblazei% of Jellico, Tenn., and Mr. Harvey Ham- mond, of Knoxville , Tenn., for the Petitioner. Mr. Ross H. Williams, of Knoxville , Tenn., for the Intervenor. Mr. Gerald P. Leicht, of counsel to the Board. DECISION AND DIRECTION Upon a petition duly filed, the National Labor Relations Board, on March 8, 1946, conducted a prehearing election among employees of the Employer in the alleged appropriate unit, to determine whether or not they desired to be represented by the Petitioner 1 for the pur- poses of collective bargaining. At the close of the election a Tally of Ballots was furnished the parties. The Tally shows that of the approximately 159 eligible voters, 147 cast valid ballots, of which 68 were for, and 69 against, the Peti- tioner; there were 10 challenged ballots. On March 8, 1946, the Petitioner filed objections to the election, alleging Employer interference. Thereafter, an appropriate hearing in the case was held at Knoxville, Tennessee, on December 16 and 17, 1946, before John C. McRee, hearing officer. The Employer, the Petitioner, and a "Committee representing*em- ployees of Southern Extract Company opposed to the UMWA Dis- trict No. 50," herein called the Intervenor, appeared, participated and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues raised by the petition, challenges and objections.2 1 The Petitioner appeared on the ballot as Paper, Pulp and Sulphide Division of Disti let 50, United Mine Workers of America 2 We shall not pass upon the objections until the results of the election have been ascer- tained , inasmuch as the objections may become moot after the challenged ballots herein ruled valid have been counted. 72 N L. It B, No. 109. 569 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Southern Extract Company is a Delaware corporation with its principal office and place of business in Knoxville, Tennessee, where it is engaged in the manufacture and sale of paper board and chestnut tanning extract. During the calendar year 1945, the Employer pur- chased raw materials valued in excess of $100,000, approximately 40 percent of which was shipped to the Employer's plant from points outside the State of Tennessee. During the same period the Em- ployer's gross sales were in excess of $100,000, of which approximately 85 percent was shipped to points outside the State of Tennessee. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act.3 II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer 4 III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Petitioner and the Employer agree that a unit composed of all production and maintenance employees of the Employer, includ- ing watchmen, but excluding clerical employees, chemists, the chief electrician, and supervisory employees, is appropriate. There is dis- agreement between them, however, as to the inclusion of a number of 3 Jurisdiction over the Employer was also asserted by the Board in an earlier proceeding. See Matter of Southern Extract Company, 54 N L. R B 1146 4 The Intervenor does not claim to be a labor organization , but was established solely to combat the organizational efforts of the Petitioner. SOUTHERN EXTRACT COMPANY 571 employees.5 The Petitioner contends they should be excluded, whereas the Employer would include them. The Intervenor takes no position with respect to the appropriate unit. Donald Foley: The Petitioner contends that, as head loader, Foley is a supervisory employee, and, as assistant shipping clerk, a clerical employee. Foley, together with two other employees, performs. manual labor in loading railroad cars. Although his pay is a few cents per hour more than the two other employees, it does not appear that he has supervisory duties. He takes the place of J. W. Goo, ship- ping clerk, 1 day a week. The Board, in a prior Decision,, excluded Goo from the production and maintenance unit it established because a portion of his work was clerical. We find that Foley is not a super- visory employee and that any clerical duties he may perform as a sub- stitute for Goo are not substantial enough to warrant his exclusion on that ground. We shall include him. James Adapts:-The Petitioner would exclude Adams, a maintenance and shipping room employee, because he takes the place of Charles Helton, millwright, 2 days a week, and the place of Donald Foley, 1 day a week. In its prior Decision the Board excluded Helton from the unit because he relieved the night superintendent 1 night a week.? As it does not appear that Adams, while substituting for Helton, per- forms supervisory functions, and as we are including Donald Foley, we shall include Adams. I. 0. Bayless: The Petitioner contends that Bayless, an engine man, should be excluded because he receives a salary and is paid for 60 hours per week whether he works the full 60 hours or not. The evi- dence is undisputed that Bayless is one of the Employer's oldest em- ployees, having worked for it for 42 years, and that his method of pay is in recognition of his long service. Since it appears that Bayless is a non-supervisory production woiker, we shall include him. George Whitton: The Petitioner contends that, as waste paper man, Whitton performs partly supervisory and partly clerical service. The Some of the employees in question, challenged by a Board agent at the election, are as follons Donald Foley, head loader, James Adams, maintenance and shipping room; I O. Ba3 less, engine man , George Whitton, waste paper man , Marvin Gorden, janitor, Edna Rector, Helen Loveday and Mildred Loveday, freeness testers, and Mildred Adams, free- ness tester and measurer Male measurers are the remaining employees in dispute The ballot of B. F hiller, machinist , was challenged at the election by the Employer on the ground that he is a supervisory employee The Employer's president testified without contradiction, however, that this employee performed no supervisory duties and that his ballot should not have been challenged All parties agree that this employee should be included , and we shall, therefore, include him. e See footnote 3, supra. 7 Although Holton did not vote In the prehearing election , the Employer contends that having no supervisory authority, he should be included in the appropriate unit. We are not persuaded from the record in the instant case , however, that we should change our former ruling that he be excluded. 572 DECISION S OF NATIONAL LABOR RELATIONS BOARD record does not substantiate this contention. Furthermore, it appears that his duties are substantially the same as those of James Bartee, whom the Board included in the appropriate unit in its prior Decision. We shall, therefore, include him. Marvin Gorden: Gorden, at the time of the hearing, had been em- ployed as office janitor for approximately 10 months. The Board, in its prior Decision, excluded the office janitor on the ground that, the employee then holding the position, in addition to janitorial work, drove the car of the Employer's president and ran errands for the officials of the Employer. The Petitioner accordingly, contends that Gorden's predecessor was a "confidential" employee and Gorden should therefore be excluded. The record in the instant case reveals, however, that Gorden unlike his predecessor, does not act as chauffeur for the Employer's president and does not run errands. Gorden performs janitorial work not only in the office, but also in the storeroom, machine shop, showers and toilets and turbine room. He is paid by the hour and punches the same time clock as other maintenance employees. On the entire record we are of the opinion that Gorden should not be excluded from the appropriate unit. We shall include him. Edna Rector, Helen Loveday, and Mildred Loveday: The Petitioner contends that these employes, now classified as freeness testers, are technical employees and, therefore, should be excluded. The Board, in its prior Decision, excluded laboratory workers, whose duties were substantially the same as those of the freeness testers. Accordingly, we shall exclude these three employees. Mildred Adams: This employee is classified as a freeness tester and measurer. She works as a freeness tester 3 nights a week relieving each of the three regular freeness testers 1 night a week, and works as a measurer the other 3 nights a week, relieving each of three employees classified as measurers 1 night a week. The Board, in its prior De- cision, excluded measurers because they performed no manual labor and their duties were of a clerical nature. As a measurer, Mildred Adams also performs no manual labor and her work is also clerical in nature. Accordingly, and inasmuch as we have excluded the free- ness testers, we shall exclude Mildred Adams. Male Measurers: The record reveals that, during the war, clue to the manpower shortage, women were employed as measurers and only women were so employed at the time of the prior Board Decision. As already noted, they performed no manual labor. At the time of the prehearing election, however, the Employer employed instead three men as full-time measurers. These male measurers not only do measuring work, but also spend a considerable portion of their time on manual labor, assisting in making repairs when breaks occur in paper machines. A collective agreement between the Petitioner and the SOUTHERN EXTRACT COMPANY 573 Employer, executed after the prior Board proceeding, which resulted in the Petitioner's certification, specifically embraced male measurers.' We shall include the male measurers. We find that all production and maintenance employees ° of the Employer, including male measurers, the janitor,10 and watchmen, but excluding laboratory workers or freeness testers,11 chemists, clerical employees, chief electrician, 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'12 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 In accordance with our foregoing conclusions, we hereby overrule the challenges to the ballots cast by Donald Foley, James Adams, 1.0. Bayless, George Whitton, Marvin Gorden, and B. F. Miller; and sustain the challenges to the ballots cast by Edna Rector, Helen Love- day, Mildred Loveday, and Mildred Adanls. As the six challenged ballots herein found to be valid are sufficient in number to affect the results of the election, we shall direct the Regional Director to open and count them. DIRECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Southern Extract Company, Knoxville, Tennessee, IT IS IrEREBY DIRECTED that the Regional Director for the Tenth Region, shall, within ten (10) days from the date of this Direction, open and count the challenged ballots of Donald Foley, James Adams, I. O. Bayless, George Whitton, Marvin Gorden and B. F. Miller, and shall thereafter prepare and cause to be served upon the parties a Supplemental Tally of Ballots, including therein the count of these six challenged ballots. B The voting unit described in the notice of election in this case generally covered all production and maintenance employees and did not exclude measurers. As noted above, Mildred Adams, a freeness tester-measurer, cast a ballot. It does not appear whether male measurers voted 'This includes B. F. Miller, Donald Foley, James Adams, I. O. Bayless and George Whitton. Marvin Gordon n This includes Edna Rector, Mildred Loveday, and Helen Loveday, and Mildred Adams, freeness tester and measurer. u This includes Charles Helton.