Kansas Milling Co.

In the Matter of KANSAS. MILLING COMPANY and FLOUR, FEED, SEED, CEREAL & ELEVATOR WORKERS UNION, No . 20991, A. F. of L. Case No. B-1439.-Decided September 0, 1939 Grain Processing awd Dulling Industry-Investigation of Representatives: controversy concerning representation of employees : employer refuses to recognize union in the absence of an election-Unit Appropriate for Collective Bargaini,ng : production and maintenance employees excluding executive and supervisory employees , office workers , and chemists ; production workers with some supervisory duties included-Representatives : proof of choice: elimina- tion of disagreement between company and sole union involved to insure satisfactory negotiations requires an election-Election Ordered Mr. Henry H. Foster, Jr., for the Board. Mr. Robert C. Foulston, Mr. George Sie f kin, and Mr. George B. Powers, of Wichita., Kans., for the Company. Mr. Earl Dietz, of Oklahoma City, Okla., for the Union. Mr. William T. Little, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 15, 1939, Flour, Feed, Seed, Cereal & Elevator Workers Union, No. 20991, A. F. of L., herein called the Union, filed with the Regional Director for the Seventeenth Region (Kansas City, Missouri) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Kansas Milling Company, Wichita, Kansas, herein called the Company,. and request- ing an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the,Act. On May 23, 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 National Labor Relations Board Rules and Regulations-Series l., as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing on due notice. 15 N. L. It. B., No. 13. 71 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 1, 1939, the Acting Regional Director issued a notice of hearing, copies of which were duly served on the Company and the Union. The Company thereafter filed an answer to the petition and a "Petition for Election." Pursuant to the notice, a hearing was held at Wichita, Kansas, on July 13, 14, 15, 1939, before William P. Webb, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel, the Union by the district vice president of National Council of Grain Processors, with which the Union is affiliated, and all participated in the hearing. Full op- portunity 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. On July 21, 1939, the Company filed a request for an oral argument before the Board. Pursuant to notice duly served upon all the parties, oral argument was held before the Board at Wash- ington, D. C., on August 3, 1939. Only the Company appeared and participated in the oral argument. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Kansas Milling Company, a Kansas corporation with its principal place of business in Wichita, Kansas, is engaged in the business of processing and milling grain for human and animal consumption. The Company's mill has a capacity of 4,000 barrels per day and in 1938 produced approximately 500,000 barrels of flour. A substantial amount of the grain used by the Company is purchased outside Kansas, and over 90 per cent of its products are shipped outside the State. The Company admits that it is engaged in commerce among the several States within the meaning of Section 2 (6) and (7) of the Act. H. THE ORGANIZATION INVOLVED The Union is a labor organization affiliated with the American Federation of Labor and the National Council of Grain Processors. It admits to membership all employees of the Company except execu- tives, superintendents, office employees, and chemists. III. THE QUESTION CONCERNING REPRESENTATION Early in 1939, a committee of the Union called on Jackman, vice president, treasurer, and general manager of the Company, claimed KANSAS MILLING COMPANY 73 to represent a majority of employees in an appropriate unit, and requested recognition as the bargaining agent of such employees. The Company refused to recognize the Union as the bargaining agent of the employees in the absence of an election. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION ON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company de- scribed in Section I above, has a close, intimate, and substantial rela- tion 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 Union claims that all production workers in and around the mill, excluding executives, superintendents, office workers, chemists, and supervisory employees not engaged in productive work, constitute an appropriate unit. It is apparent from the record that the Union used the term "production workers" so as to include in its meaning maintenance workers: The Company claims that employees of the malt plant should be excluded from the unit. The malt plant is located in a build- ing adjoining that of the Company's elevator and mills. Although the production of malt is a separate and distinct business from, and not an adjunct to, the production of flour, the Union admits to membership the employees in the malt plant and has extended its organizational efforts to them. We shall include the employees of the malt plant in the appropriate unit.' - The Company asks that 15 of its 151 employees be excluded as supervisory employees having the power either to hire and discharge or to recommend hiring and discharging. The Union conceded the propriety of excluding seven, but insisted that the remaining eight engaged in sufficient productive, as distinguished from supervisory, work to be included with the other production workers. B. M. Finley devotes half his time to non-supervisory maintenance work at Wichita and the other half to keeping the Company's feeder elevators, which are located in various parts of Kansas and Okla- homa, in repair. In the latter capacity he does most of the work himself, but may and sometimes does take someone from the Wichita 3 Cf. Matter of Borum and Pease Company and United Paper Workers Local Industrial Union #292, Affliiafed with the Committee for Industrial Organization, 7 N. L. R . B. 486. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant or hire someone on the spot to help him. In such event, he supervises the work of the men working for him and may dis- charge those he hires. J. B. Scholl works in the elevator at Wichita. When the elevator superintendent is present, Scholl performs ordi- nary non-supervisory work, but in the absence of the superintendent, Scholl acts as superintendent, supervises the work of the others, and has authority to hire and discharge. There was no showing of the amount of time the superintendent is absent. In the absence of such a showing, we assume that Scholl infrequently exercises supervisory powers. Thus both Scholl and Finley would appear to devote the greater portion of their time to ordinary productive functions. We shall include them in the unit. P. L. Chapman is in charge of the malt plant. He has four men working under him and he does the same type of work as his sub- ordinates. J. A. Olmstead, H. Kin.sel, and C. F. Young are second millers and as such, each is in charge of a shift of about six men. In addition to their supervisory functions, the extent of which is in dispute, they set the milling machinery and see that the wheat is properly mixed and the flour properly milled. H. E. Growthe is denominated as an assistant mill superintendent or head miller. He takes the place of either the mill superintendent or the second miller, and at the time of the hearing was replacing a second miller. He testified that he did whatever "productive work" is necessary to keep the mill going in addition to his supervisory duties. Although it was testified that these men have authority to hire and discharge or recommend hiring and discharging, the record shows that, in prac- tice, most of them do not use that prerogative; they also engage in ordinary production work in addition to their supervisory duties and, as such, greatly resemble working foremen whom we have included in other cases.2 The only Union involved, to which they all belong, asks their inclusion. We shall include them in the appro- priate unit. - - R. C. Meredith, the head packer, is in charge of 14 men. His function is to see that the flour is put in the right sacks, is properly packed and weighed, and he has the power to hire and discharge. The general supervisory character of his work, the number of men under his supervision, and his power to hire and discharge require that he be excluded from the unit. Accordingly, the term "supervisory employees" as used in defining the appropriate unit includes Meredith, but not Finley, Scholl, Chap- man, Olmstead, Kinzel, Young, and Growthe. 'Matter of Lidz Brothers, Incorporated and United Wholesale Employees, ( Local No. 65), 5 N. L. R. B. 757; Matter of North Star Specialty Company and International Asso- ciation of Machinists, Local 382, 5 N . L. R. B. 763. KANSAS MILLING COMPANY 75. We find that all production and maintenance employees of the Company, excluding executive and supervisory employees, office workers, and chemists, constitute a unit appropriate for the purpose of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right of self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing, the Union offered evidence in support of its claim that the majority of the employees in the appropriate unit had designated it as their bargaining agent. It requests certification on the proof offered. In accordance with the policy announced in Matter of The Cudahy Packing Company and Matter of Armour d Company, however, we shall direct. that an election by secret ballot be held.8 We find that those eligible to vote in the election shall be the employees in the appropriate unit during the last pay-roll period next preceding the date of this Direction, including employees who, did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been tempo- rarily laid off, but excluding those who have since quit or been dis- charged for cause. On the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS or LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Kansas Milling Company, Wichita, Kan- sas, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production and maintenance employees of the Company, excluding executive and supervisory employees, office workers, and chemists constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. 8 Matter of Armour ct Company and United Packinghouse Workers, Local Industrial Union No. 13, Packinghouse Workers Organizing Committee, affiliated with the 0. I. 0., 13 N. L. R. B. 567; Matter of The Cudahy Packing Company and United. Packinghouse Workers of America, Local No. 21, affiliated with the C. 1. 0., 13 N. L . R. B. 526. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargain- ing with the Kansas Milling Company, Wichita, Kansas, an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction, under the direction and supervision of the Regional Director for the Seventeenth Region, acting in this matter as agent for the National Labor Relations Board and sub- ject to Article III, Section 9, of said Rules and Regulations, among the production and maintenance employees of said Company who were employed during the pay-roll period next preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding executive and supervisory employees, office work- ers, and chemists, and excluding also those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Flour, Feed, Seed, Cereal and Elevator Workers Union, No. 20991, A. F. of L., for the purposes of collective bargaining.