Shawnee Milling Co.

In the Matter of SHAWNEE MILLING COMPANY and UNITED GRAIN PROCESSORS, LOCAL 21987, AFFILIATED WITH AMERICAN FEDERATION OF GRAIN PROCESSORS (AFL) Case No. R-5523. -Decided July 8,1943 Abernathy & Abernathy, by Mr. G. C. Abernathy, of Shawnee, Okla., for the Company. Mr. H. A. Schneider, of Dallas, Tex., for the Union. Mr. Robert E. Tillman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Grain Processors, Local 21987, affiliated with American Federation of Grain Processors (AFL), herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Shawnee Milling Company, Shawnee, Oklahoma, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Elmer Davis, Trial Examiner. Said hearing was held at Shawnee, Oklahoma, on June 8, 1943. The Com- pany and the Union appeared, participated, and 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. All parties were afforded opportunity to file briefs with the Board. At the hearing the Company moved that the Union's petition be dismissed on the ground that the petition was filed in less than a year from the date of a Board election conducted among the Company's employees which the Union lost, and on the additional ground that no question concerning representation has arisen since the Union did not request recognition from the Company. In view of our findings in Section III, infra, the Company's motion to dismiss is denied. Upon the entire record in the case, the Board makes the following : 51 N. L. R. B., No. 32. 540612-44-vol. 51-11 147 148 DECIISQONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Shawnee Milling Company, an Oklahoma corporation, maintains its principal office and place of business in Shawnee, Oklahoma, where it is engaged in the manufacture, sale, and distribution of flour, corn meal, dairy feed, poultry feed, and related products. The principal raw material used by the Company is wheat. During the year 1942, the Company purchased approximately 2,000,000 bushels of wheat, of which approximately 15 percent was purchased outside the State of Oklahoma. During the same period, the Company sold and distrib- uted approximately 50 percent of its products to points outside the State of Oklahoma. H. THE ORGANIZATION INVOLVED United Grain Processors, Local 21987, is a labor organization affili- ated with the American Federation of Grain Processors, which in turn is affiliated with the American Federation of Labor. It admits to membership employees of the Company. III THE QUESTION CONCERNING REPRESENTATION The Company contends that no question concerning representation has arisen because no request for recognition was made by the Union. The record indicates the contrary, however. H. A. Schneider, vice president of the American Federation of Grain Processors Council, testified that on May 20, 1943, he talked by long distance telephone with Leslie A. Ford, the vice president of the Company, stating in effect that the Union represented a majority of the Company's em- ployees and requesting that it be recognized as the sole bargaining representative of such employees, and that Ford replied in substance that the Union would first have to be certified by the Board. The Company contends further that a previous Board election con- ducted among the Company's employees is a bar to a present determi- nation of representatives. This election was held on October 29, 1942, resulting in a majority vote against the Union. Since no col- lective bargaining representative was designated as a result of the election and because a statement of a Field Examiner of the Board, introduced in evidence at the hearing, as supplemented by a state- ment of the Trial Examiner made at the hearing, indicates that the Union, subsequent,to the election, obtained designations from a sub- stantial number' of employees in the unit hereinafter found to be appropriate,' we find that the previous election is no bar.2 ' The. Field Examiner stated that the Union submitted to him 78 authorization cards, all bearing 'apparently genuine original signatures , and that all but 6 of the cards were dated SHAWNEE MILLING COMPANY 149 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 Union requests a unit of all employees of the Company, ex-, eluding supervisors, second millers, foremen, chemists, office em- ployees, salesmen, and truck drivers. As in the previous case, the sole dispute between the parties over the appropriate unit concerns specified employees sought to be excluded from the unit by the.Union as supervisory employees. The parties agreed that the board might use the record in the previous case in determining the duties of the disputed employees. In our previous decision, we found the following to be supervisory employees and excluded them as such from the appropriate unit., R. G. Alfrey and Ewing Longworth, leadmen in the elevator depart- ment; C. A. Scott, leadman in the alfalfa department; John Turner, leadman in the poultry feed mill; C. A. McKeeman, and Garland, King and A. L. Rosier, head and second millers, respectively; H. N. Welch, head packer ; J. T. Helton, leadman of the hand truckers;' L. E. Garrett, leadman in the warehouse; H. E. Smith, night loading foreman; and Clyde Giles, millwright. The record in the instant` case indicates that there have been no material changes in the func- tions associated with the positions set forth above since our previous; decision, although there have been some changes in the personnel oc- cupying the positions. In view of this fact, we shall exclude the, occupants of the above positions, which we found to be supervisory in nature in our prior decision, from the appropriate unit. Since our prior decision, the number of employees of the Company has expanded. Several departments of the mill now have two and even three permanent shifts rather than one. Each shift is headed by a Madman. The Company and the Union both agree that "the' leadmen of the new second and third shifts should be included in the appropriate unit. In nearly tvery instance, such l'eadmen are hourly paid, whereas the leadmen of the first shifts whom we have excluded above, are paid semi-monthly at a higher rate of pay. However,, the positions held are identical excepting that the second and third shifts usually comprise fewer employees. Thernleadmen subsequent to the previous election The Trial Examiner stated that 55 of the cards bore names of persons whose names appeared on the Company 's pay roll for May 20, 1943, which listed 138 employees in the unit which the Union contended to be appropriate a Matter of Gluck Bros , Inc., 49 N. L R B 1428; Matter of Lehigh Portland Cement Company, 38 N I, R' B. 308 ,' 310; Matter of Chrysler Corporation, 37 N L R B 877, 879 150 DECDSIIONS OF NATIONAL LABOR RELATIONS BOARD transmit orders and arrange work assignments. On the basis of all the facts, we see no reason why leadmen of the second and third shifts in the several departments of the mill should not be excluded with the leadmen of the first shifts. As one possible basis for different treatment the Union argues that when the company is not operating a third shift or a second and a third shift, the leadmen of such shifts become ordinary employees on the shifts still operating. This fact, however, does not change our conclusion, since it is the position and not the men occupying it which we are excluding from the appropri- ate unit. We find, therefore, that the leadmen of the second and third shifts, as well as the leadmen of the first shifts, are supervisory employees, and we shall exclude them from the appropriate unit as such. J. T. Helton, leadman of the hand truckers, whom we excluded in our previous decision, now has an assistant on his shift, Martin Rush- ing, who checks cars, directs loading, and gives orders just as does Helton. The Company and the Union both agree that Rushing should be included in the unit. We shall, however, in view of the similarity of his duties to Helton's exclude Rushing from the appro- priate unit as a supervisory employee. We find that all employees of the Company, excluding office em- ployees, salesmen, chemists, truck drivers, and second millers, fore- men and any other supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, 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 We shall direct that the question concerning representation which has arisen be resolved by means of an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of our Direction' of Election, subject to the limitations4and additions set forth therein. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National La- bor 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 2, as amended, it is hereby DmEcTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Shawnee Milling Company, Shawnee, Oklahoma, an election by secret ballot shall be 0 SHAWNEE MILLING COMPANY 151 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 Director for the Sixteenth Region, acting in this mat- ter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among the em- ployees 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 those employees who did not work during such pay-roll period because they were ill or on vacation or tempo- rarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but ex- cluding those employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Grain Processors, Local 21987, affiliated with American Fed- eration of Grain Processors (AFL), for the purposes of collective bargaining.