Electric Steel Elevator Division of Russell-Miller Milling Co.

In the Matter of ELECTRIC STEEL ELEVATOR DIVISION OF RUSSELL- MILLER MILLING Co. and FLOUR, CEREAL, ELEVATOR WORKERS AND CAR-COOPERS UNION, LOCAL 19152, AFFILIATED WITH THE A. F. or L. Case No. R-1416.-Decided August 10, 1939 Milling Industry-Investigation of Representatives: controversy concerning representation of employees : rival organizations ; company willing to deal with any union which can prove that it represents a majority-Unit Appropriate for Collective Bargaining: all employees in grain elevator excluding superintendent, assistant superintendent, inspectors, assistant inspectors, shed foremen, and clerical employees-Representatives: unions agree that an election is necessary to settle question of representation ; eligibility to participate in choice : tem- porary employees on seniority list-Election Ordered Mr. Lee Loevinger and Mr. Lester Asher, for the Board. Mr. Ralph L. Helstein, of Minneapolis, Minn., for the C. I. O. Mr. W. A. Younker, of Minneapolis, Minn., for the A. F. of L. Mr. Ray Johnson, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 12, 1939, Flour, Cereal, Elevator Workers and Car-Coopers Union, Local 19152, affiliated with the American Federation of Labor, herein called the A. F. of L., filed with the Regional Director for the Eighteenth Region (Minneapolis, Minnesota), a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Electric Steel Elevator Division of Russell- Miller Milling Co., Minneapolis, Minnesota, herein called the Com- .pany,l and requesting an investigation and certification of represen- tatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 12, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of 'The pleadings, which incorrectly designated the Company as Russell-Miller Milling Company were amended at the hearing. 14 N. L. R. B., No. 33. 446 ELECTRIC STEEL ELEV. DIVISION OF RUSSELL-MILLER MILLING CO. 447 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. On June 13, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the A. F. of L., and United Grain Workers Local No. 492, affiliated with the United Cannery, Agricultural, Packing and Allied Workers of America, and also affiliated with Congress of Industrial Organizations, herein called the C. I. 0., a labor organization claiming to represent em- ployees directly affected by the investigation. Pursuant to the no- tice, a hearing was held on June 22, 1939, before Joseph F. Keirnan, the Trial Examiner duly designated by the Board. The Board, the Company, the A. F.. of L., and the C. I. O. were represented by counsel and participated in the hearing. Full 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Russell-Miller Milling Co., a Delaware corporation, has-its princi- pal office in Minneapolis, Minnesota. It maintains offices, plants, mills, and elevators in various locations throughout the United States and is licensed to do business in 17 States. The Electric Steel Elevator Division of the Company operates a grain elevator in Minneapolis, Minnesota, where it engages in the business of receiving, cleaning, and sizing grain, principally wheat, durum, barley, rye, and oats. Approximately 60 per cent of the grain handled by this division originates outside the State of Minne- sota. Approximately 35 per cent of the grain received by the Elec- tric Steel Elevator Division is sent directly to the adjacent mill owned by the Company where it is milled into various grain prod- ucts. Approximately 70 per cent of these products are shipped to purchasers outside the State of Minnesota.. Of the remaining 65 per cent of the grain handled by this division over 80 per cent is shipped to purchasers outside the State of Minnesota. 448 - DECISIONS , OF NATIONAL. LABOR RELATIONS BOARD-... . II. THE ORGANIZATIONS INVOLVED Flour, Cereal, Elevator Workers and Car-Coopers Union, Local 19152, is a labor organization affiliated with the American Federa- tion of Labor. It admits to its membership all the employees of the Company except the superintendent, assistant superintendent, inspec- tors, assistant inspectors, shed foremen, and clerical employees. United Grain Workers Local No. 492, is a labor organization affili- ated with the Congress of Industrial Organizations. It admits to its membership all production employees who, in the normal course of business, are paid on an hourly basis, excluding all supervisory and clerical employees, and those who occupy executive positions with the Company. III. THE QUESTION CONCERNING REPRESENTATION On August 31, 1938, the C. I. O. negotiated with the Company an exclusive bargaining contract for all the employees of the grain ele- vator, excluding foremen, inspectors, superintendents, and office em- ployees. This contract expired on July 1, 1939. On April 28, 1939, the A. F. of L. notified the Company that it represented a majority of the Company's employees and asked for exclusive bargaining recognition. The Company replied that it would negotiate with any union which could clearly prove that it represented a majority of the employees. We find that a question has arisen concerning the representation of employees of the Electric Steel Elevator Division 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 The A. F. of L. contends that the appropriate unit should consist of all the employees in the grain elevator, excluding the superintend- ent, assistant superintendent, inspectors, assistant inspectors, shed foremen, and clerical employees. The C. I. O. would exclude from the unit grain-cleaner operators, weighers, and 'al millwright on the ELECTRIC STEEL ELEV. DIVISION OF RUSSELL-MILLER MILLING CO. 449 ground that they are more skilled than the ordinary employees and receive higher wages. In addition, the 'C. I. 0. asserts that the grain- cleaner operators and the weighers are confidential employees whose interests are closer to the management than to the other employees. The record does not support the contentions of the C. I. 0. Al- though the employees it seeks to exclude occupy positions requiring some degree of skill, they have no supervisory duties. They are engaged directly in production and maintenance work and are in no sense confidential employees. The C. I. 0. conceded at the hearing that it had attempted to organize these employees. Moreover, as noted above, they were covered by the exclusive bargaining contract which the Company had signed with the C. I. 0. in 1938. We shall include these employees in the appropriate unit. We find that all the employees of the Electric Steel Elevator Divi- sion of the Company excluding the superintendent, assistant superin- tendent, inspectors, assistant inspectors, shed foremen, and clerical employees, 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 Neither the A. F. of L. nor the C. I. 0. introduced evidence of mem- bership and both agreed that an election should be held to settle the question concerning representation. Both labor organizations fur- ther agreed, with the exception noted below, that those employees in the appropriate unit whose names appeared on the seniority list of the Company should be eligible to participate in the election. The evidence shows that C. F. Hurteau, whose name appears on the seniority list, has severed his connection with the Company and is not entitled to vote, and that the name of John Hofstad should be on the seniority list. The A. F. of L. contends that five employees should not be eligible to vote because they are employed only 2 or 3 months a year. It is conceded that the names of the temporary em- ployees are on the seniority list of the Company. It is the practice of the Company to lay off and to hire employees according to the seniority list and the evidence shows that the employees in question will be recalled to work when business conditions permit. We shall therefore permit them to participate in the election which we shall order.2 9 Cf. Matter of Flemo Products Corporation and International Brotherhood of Electrical Workers, Local B-713, 7 N. L. R. B. 1163. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of the Company, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the employees of Electric Steel Elevator Division of the Company excluding the superintendent, assistant superintendent, in- spectors, assistant inspectors , shed foremen, and clerical employees constitute a unit appropriate for the purposes of collective bargain- ing, 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, 49 Stat. 449, and pursuant to Article III, Section 8, of Na- tional Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Electric Steel Elevator Division of Russell-Miller Milling Co., Minneapolis, Minnesota, an election by secret ballot shall be conducted within twenty (20) days from the date of this Direction, under the direction and supervision of the Regional Director for the Eighteenth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Sec- tion 9, of said Rules and Regulations, among the employees on the seniority list of Electric Steel Elevator Division of Russell-Miller Milling Co., excluding the superintendent, assistant superintendent, inspectors , assistant inspectors , shed foremen, and clerical employees, except those who have since permanently quit or have been discharged for cause, to determine whether they desire to be represented by Flour, Cereal, Elevator Workers and Car-Coopers Union, Local 19152, affiliated with the American Federation of Labor, or by United Grain Workers, Local No. 492, affiliated with the United Cannery, Agriculture, Packing and Allied Workers of America; and with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither.