American Tobacco Co., Inc.

In the Matter of AMERICAN TOBACCO COMPANY, INCORPORATED, RICH- MOND SMOKING BRANCH and , COMMITTEE FOR INDUSTRIAL ORGANIZA- TION, LOCAL No. 472 Case No. R-971.----Decided October ?L9, 1938 Tobacco Industry-Investigation of Representatives : controversy concern- ing representation of employees : rival organizations ; refusal of employer to recognize petitioning union because of contract with other union-Unit Appro- priate for Collective Bargaining : employees of one plant; no showing of organi- zation of employees in six plants ; no contention for four-plant unit ; no basis shown for unit of white employees in four plants-Election Ordered Mr. Samuel Al. Spencer, for the Board. Mr. Dee TV. Stone, and Mr. Sherwood E. Silliman, of New York City, for the Company. Mr. John H. Suttle, of Richmond, Va., for the United. Mr. L. C. Crump, of Richmond, Va., for Local No. 182. Mr. TTY. T. Robinson, for the I. A. M. Mr. Abraham J. Harris, of counsel to the Board. DECISION AND - DIRECTION OF ELECTION. STATEMENT OF THE CASE On April 11, 1938, and on May 4, 1938, C. I. O. Local No. 472, herein called the United, filed with the Regional Director for the Fifth Region (Baltimore, Maryland) a petition and an amended petition, respectively, alleging that a question affecting commerce had arisen concerning the representation of employees of Ameri- can Tobacco Company, Incorporated, herein called the Company, Richmond Smoking Branch,' Richmond, Virginia, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 23, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 1 It is clear from the record that the correct name of the petitioner is United Tobacco Stemmers and Laborers Local Industrial Union No. 472, affiliated with the Committee for Industrial Organization , and that the correct designation of the plant here involved is Richmond Branch 9 N: L. R. B., No. 52. 134068-39-vol. rz--38 ,_579, 580 NATIONAL LABOR I.ELATIONS BOA1iD On July 1, 1938, the Acting Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the U _ nited`,' and upon{ Tobacco Workers' International Union, Local NO .' 182; herein rcalle"d• L'ocal' N. "182, 'a labor organization claiming to represent employees directly affected by the investigation. On July 8, 1938, the Acting Regional Director duly served upon the same parties a notice of postponement of hearing. Pursuant to notice, a hearing was held on July 28, 1938, at Richmond, Virginia, before D. Lacy McBryde, the Trial Examiner duly designated by the Board. At the hearing, Local No. 182 and International Asso- ciation of Machinists, herein called the I. A. M., a labor organiza- tion claiming to represent employees directly affected by the' investi- gation, were granted leave to intervene without objection. The Board and the Company were represented by counsel. The United, Local No. 182, and the I. A. M. were represented by their authorized representatives. All participated in the. hearing. Opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Trial Examiner reserved ruling on a motion by the Company to dismiss the petition on the ground of insufficient evidence to prove an appropriate unit. The motion is hereby denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY American Tobacco Company, Incorporated, is a corporation or- ganized under the laws of the State of New Jersey. Its principal office is in New York City. It is engaged in the manufacture and sale of cigarettes, cut and granulated smoking tobacco, chewing and plug chewing tobacco, 'and cigars, and in the importation and sale of cigarette papers. The Company operates the following cigarette and smoking and chewing tobacco factories : Location Product Richmond , Virginia (known as the Virginia Branch )___________________________________ Cigarettes. Richmond, Virginia (known as the Richmond Branch ) ---------------------- __------------ Smoking tobacco. Durham, North Carolina _____________________ Cigarettes and smoking tobacco. Reidsville, North Carolina ____________________ Cigarettes and little cigars. Louisville, Kentucky_________________________ Smoking and chewing tobacco. Nashville, Tennessee_________________________, Chewing tobacco. DECISIONS AND ORDERS 581 In addition, the Company and its subsidiaries own' or lease and operate other plants in the States of South Carolina, New Jersey; Connecticut, and Pennsylvania, and in Greece, Turkey, Italy, and Cuba. The Company, through its subsidiary, American Suppliers, Incor- porated, 'purchases its domestic tobacco, which comprises approxi- mately 85 per cent of its total stock of tobacco,* in the States of Virginia, North Carolina, South Carolina, Georgia, Kentucky, and Tennessee.'. Only 7.5'per cent of the domestic tobacco is purchased in the State of Virginia. ' ' The Richmond Branch, the factory. here involved; manufactures approximately 30 per cent of the Company's total production of smoking tobacco. Over 90 per cent of the product of the Richmond Branch is shipped outside the State of Virginia. II. THE ORGANIZATIONS INVOLVED United Tobacco Stemmers and Laborers Local Industrial Union No. 472, affiliated with the Committee for Industrial Organization, is a labor organization admitting to its membership all production and -maintenance employees of the Richmond Branch, excluding clerical :and supervisory employees and watchmen. Tobacco Workers' International Union, herein called the Interna- tional, is a labor organization affiliated with the American Federa= tion of Labor. It maintains Local No. 182 at the Richmond and Virginia Branches, Local No. 183 at the Durham Branch, and Local No. 192 at the Reidsville Branch. Local No. 182 admits to its mem- bership white production employees of the Richmond Branch and -the Virginia Branch. International Association of Machinists is a labor organization ffiliated with the American Federation of Labor, admitting to its -membership all machinists employed by the 'Richmond Branch 'and -the Virginia Branch. III. THE QUESTION CONCERNING REPRESENTATION The United, which was chartered on June 14, 1937, entered into negotiations with the Company in September of the same year in order to conclude a collective bargaining agreement with it. The Company, however, refused to continue such negotiations but' instead, on December 17, 1937, renewed, for 1 year beginning January 1, 1938, a contract which it had previously executed, in April' 1937, with the International. By this contract, the Company 'recognized Local Unions Nos. 182, 183, and 192, jointly, as the collective bargain- -ing.agency for their members hin the Richmond Branch,,the Virginia iBranch, the Durham Branch, and _the Reidsville Branch. 582 NATIONAL LABOR RELATIONS BOARD We find that a question .has arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing, commerce and ,the free flow of commerce. V. THE APPROPRIATE UNIT In its amended petition, the United claimed the appropriate unit to consist of all hourly paid and piece-work production and main- tenance employees at the Richmond Branch, exclusive of clerical and supervisory employees and watchmen. At the hearing the United and Local No. 182 consented to exclude also the machinists, who were claimed by the I. X. M. • , Local No., 182 contends that the white employees in the above classifications at four of the Company's plants, namely : the Rich- mond Branch, the Virginia Branch, the Durham Branch, and the Reidsville Branch, together constitute the appropriate unit. The Company urges that the employees of these four branches together with the employees of the Louisville and Nashville plants constitute the appropriate unit. In support of its claim the Company shows that its labor policies are formulated in its New York offices and are' uniformly admin- istered in the six plants. Accordingly, the same working conditions obtain in each plant and, it contends, should logically be subject to unified collective bargaining negotiations. Although one unit com- posed of the employees of the six plants might reasonably be con- sidered appropriate for the purposes of collective bargaining, the extent to which union organization has proceeded in these plants precludes such a finding. Neither the United nor the International has extended its organizational activity to the Nashville and Louis- ville plants, and no labor organization is in a position to assert a majority in all the plants. Under similar circumstances we have uniformly held that one or more rather than all plants of an employer, may constitute, an appropriate unit.2 2 See Matter of United Shipyards , Inc. and Locals No 12, No. 13, No . 15 of the Industrial Union of .Marine and Shipbuilding Workers of_America,' 5 N. L R. B -742; Matter of R., C. A., Communications,, and American Radio ;Telegraphists' Association, 2 N. L. R. B. 1109 ; Matter of Reinmgtoh 'Rand,''Dtc and Remington Rand 'J_otnt Protective Board of the District Council ' Office Equipment Woaers, i2 ',N. L. R :B: 626, affirmed sub, nom. National Labor Relations Board V. Remington Rand, Inc., 94 Fed. (2 ) 862 (C. C. A. 2, 1938 ), cert. den., 58 S. Ct. 1046 ( 1938). DECISIONS AND: ORDERS 583 Although one unit composed of the employees of the Virginia, Richmond, Durham, and Reidsville Branches might reasonably be considered appropriate for the purposes of collective bargaining, no labor organization has made any contention therefor. The appro- priateness of a unit comprising the white employees of the four plants, as urged by Local No. 182, cannot be sustained. There are colored production and maintenance employees in the four plants in question and no evidence was introduced to show any differentiation of functions which would constitute a basis for separation of the white and colored employees into separate units for the purposes of collective bargaining.8 We find that the hourly paid and piece-work production and maintenance employees of the Company at the Richmond Branch, excluding clerical and supervisory employees, machinists, and watch- men, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Com- pany the full benefit of their right to self-organization and to collec- tive bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The United claimed to represent a majority of the employees in the appropriate unit and introduced some evidence in support of its claim. No documentary evidence was introduced at the hearing, however, upon the basis of which we can make a finding that a majority of the employees in the appropriate unit had designated and selected that organization as their representative for the pur- poses of collective bargaining. We therefore find that an election 'by secret ballot is necessary to resolve the question concerning representation. At the hearing, the United indicated that it desires that eligi- bility to vote at such election should be determined as of January 12, 1938, the pay-roll date closest to the last attempt made by the United to enter into a contract with the Company. The Company indicated that it desired eligibility to be determined as of a date closer to that on which the election will be held. Under the circumstances of this case, we see no reason for not determining eligibility as of the pay-roll period immediately prior to the date of the Direction of Election. We shall direct that the employees employed in the ap- propriate unit during the last pay-roll period next preceding the date of this Direction, excluding those who have since quit or been dis- charged for cause, shall be eligible to vote in the election. 8 On October 7, 1938, at its 58th Annual Convention, the American Federation of Labor unanimously adopted a resolution "calling upon all national and international unions and departments to eliminate the color bar and all forms of discrimination which serve to exclude workers from membership on account of race or color." :584 NATIONAL LABOR,-It ELATIONS, BOARD On the basis of, the above findings of. fact Wand upon the entire .record in the case, the Board makes the following CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of American Tobacco Company, Incorpo- rated, at its Richmond Branch, Richmond, Virginia, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The hourly paid and piece-work production and maintenance employees of the Company, at its Richmond Branch, Richmond, Vir- ginia, excluding clerical and supervisory employees, machinists, and watchmen, constitute a unit appropriate for the purposes of collec- tive bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 Rela- tions Act and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with American Tobacco Company, Incorporated, Richmond Branch, an election by secret ballot be conducted within fifteen (15) days from the date of this Direction, under the direction and supervision of the Acting Regional Director for the Fifth Region, acting in this matter as the agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations , among the hourly paid and piece-work production and maintenance employees of Amer- ican Tobacco Company, Incorporated, at its Richmond Branch, Richmond, Virginia, who were employed by it during the last pay- roll period next preceding the date of this Direction, excluding clerical and supervisory employees, machinists, and watchmen, and those who have since quit or been discharged for cause, to determine whether they desire to be represented by United Tobacco Stemmers and Laborers Local Industrial Union No. 472, affiliated with the Committee for Industrial Organization, or Tobacco Workers' Inter- national Union, Local No. 182, affiliated with the American Federa- tion of Labor, for the purposes of collective bargaining, or by neither. Mr. DONALD WAKEFIELD SMITH , concur ring : The contention of the Tobacco Workers' International Union, Local No. 182, that only white employees within certain classifications con- DECISIONS AND ORDERS :585 stitute an appropriate unit, is inconsistent with the contention of the Tobacco Workers', International Union, Local No. 192, in a Petition for Certification of Representatives, involving the, Reidsville Branch of the Company, decided September 1, 1936.4 In such case, Local No. 192, consisting 'of white persons, and Local No. 191, affiliated with the same International, composed of colored persons, each adopted resolutions expressing the desire that white and colored workers, en- gaged in the appropriate departments of the Reidsville Branch, be in- cluded in a single unit for purposes of collective bargaining. The Board there concluded that both white and colored employees en- gaged in the appropriate departments of such plant should be in- cluded in a single collective bargaining unit. The white employees within certain classifications in the Reidsville Branch are included within the unit which Local No. 182 here urges is appropriate. The record is void of any showing that the colored employees in the four named Branches of the Company had designated the white Locals in any of the Branches as their collective bargaining repre- sentatives, or that there was any prevailing understanding between any existing white and colored Locals in the four Branches providing for either joint bargaining or for the authorization by one to act as collective bargaining representative for the other. Furthermore, the record contains no evidence establishing any differentiation of func- tions or any other reasons which would constitute a basis for separa- tion of white and colored employees into separate collective bargain- ing units. Under the circumstances which appear from the record, the unit urged by Local No. 182 is inappropriate and I concur in the finding that the unit claimed by the United, which includes all employees within certain named classifications in the Richmond Branch, is ap- propriate for purposes of collective bargaining. [SAME TITLE] AMENDMENT TO DIRECTION OF ELECTION November 10, 1938 On October 29, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding. The Direction of Election provided that "an election by secret ballot be conducted within fifteen (151 days from the date of this Direction, under the direction and super- vision of the Acting Regional Director for the Fifth Region." At the request of the Regional Director we shall postpone the election. ' 2 N. L. R. B. 198. X586 NATIONAL LABOR RELATIONS BOARD The Board hereby amends its Direction of Election by striking therefrom the words above quoted and substituting therefor the words' "an election by secret ballot be conducted within thirty (30) .days from the date of this Direction under the direction and super- vision of the Regional Director for the Fifth Region." 9 N. L. R . B., No. 52a.