Quaker Oats Co.

In the Matter Of QUAKER OATS COMPANY and UNITED CEREAL WORK- ERs, LOCAL No. 633, (CIO) Case No. R-1801.=Decided June 11, 1940 Cereal, Flour, - Macaroni, Spaghetti, Cornmeal, and Stock Poultry Feeds Industry-Investigation of Representatives : controversy concerning representa- tion ; employer refuses to bargain until certification of Union by the Board- Unit Appropriate for Collective Bargaining : all production workers of the Company in the package, shipping, cereal, feed, puffed goods guns, upper plant and pancake and sack departments , at its Akron, Ohio, plant, including green card production workers, but excluding maintenance or mechanical employees, powerhouse employees, plant-service employees , experimental or research work employees , clerical and office employees, employees in a super- visory capacity, timekeepers , watchmen and executives ; so-called "green card" production workers who had not had sufficient employment to be eligible to certain benefits provided by the Company included in unit found because production workers may not be arbitrarily classified so as to exclude from a unit some employees doing same kind of work as those included in such unit, although such employees not admitted to membership in only union involved ; non-production employees excluded from production unit-Election Ordered: additional 30 days provided under circumstances ; since unit found differs from unit claimed by petitioning union to be appropriate , election to be held not less than 30 nor more than 60 days from date of Direction ; pro- vided Board will dismiss petition upon request of Union within 30 days from Direction for failure to allege appropriate unit. Mr. William J. Avrutis, for the Board. Mr. C. G. Roetzel and Mr. D. W. Maxon, of Akron, Ohio, for the Company. Mr. Stanley Denlinger, Mr. Hobson L. Dyer, and Mr. Louis J. Mascolo, of Akron, Ohio, for the Union. Mr. Louis S. Penfield, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 6, 1940, United Cereal Workers, Local No. 633, herein called the Union, filed with the Regional Director for the Eighth Region (Cleveland, Ohio) a petition alleging that a question affect- 24 N. L. R. B.,.No. 55. 589 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing commerce had arisen concerning the representation of employees of Quaker Oats Company, Akron, Ohio, and requesting an investi- gation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 20 , 1940, 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 2, as amended, ordered an investiga- tion and authorized the Regional Director to conduct -it and to pro- vide for an appropriate hearing upon due notice. ' On April 9, 1940, the Regional Director, issued a , notice of hearing, copies of which were duly served upon the Company and upon the Union. Pursuant to the notice a hearing was held on April 18, 1940, at Akron, Ohio, before Herbert Wenzel, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union appeared and were represented by counsel , and participated in the hearing. Full opportunity to be heard, to examine and to 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 various rulings on 'motions and on the admission of evidence . The Board has reviewed the rulings ' of the Trial Examiner and finds that no prejudicial errors were com- mitted. These rulings are hereby affirmed. The Company and the Union have submitted briefs in support of their respective positions. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Quaker Oats Company is a New Jersey corporation with its prin- cipal office in Chicago, Illinois. It is engaged in the manufacture, sale, and distribution of numerous cereals, including products vended under trade names, and.of various types of flour, macaroni, spaghetti, cornmeal, and stock poultry feeds . In connection with the manufacture of its products the Company owns and operates plants in Akron, Ohio, and in cities in various States of the United States. This proceeding is concerned solely with employees of the Akron plant, where about 650 persons are employed. In the year 1939 raw materials consisting mostly of grain and worth in excess of $250,000 were used at this plant, of which 95 per cent were shipped to the plant from points outside the State of Ohio. During the same period approximately 70 per cent of the finished products of the plant , having a value in excess of $250,000 , were shipped to points outside the State of Ohio. -QUAKER OATS COMPANY ` 591 The Company admits that it is engaged in interstate commerce, within the meaning of the Act. - II. THE ORGANIZATION INVOLVED United Cereal Workers, Local No. 633, is a labor organization .affiliated with the Congress of Industrial Organizations. The Union admits to membership employees of the Company at its Akron plant excluding, among others , so-called "green card" employees. III. THE QUESTION CONCERNING REPRESENTATION In April 1939 the Union requested the Company to recognize it as the statutory representative of employees at the Akron plant, within certain classifications, and submitted to the Company a draft of a proposed collective bargaining contract to be executed by the Union and the Company. The Company refused and still refuses to recognize the Union as the statutory representative of its em- ployees within an appropriate collective bargaining unit until the Union be certified by the Board as such representative. We find that a question has arisen concerning representation of employees of the Company. . 1V. 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The petition alleges that the following workers employed at the Akron plant, viz:, "all production workers engaged in the package, shipping, cereal, feed, puffed goods guns,, upper plant and pancake and sack departments, exclusive, however, of green card employees" constitute a unit appropriate for the purposes of collective bar- gaining. At the hearing the Union and the Company stipulated and agreed that "experimental or. research work employees, clerical and office employees, employees in a supervisory capacity, timekeep- ers, watchmen and executives," should be excluded from the unit thus proposed. However, the parties differed as to the exclusion 1 Also referred to in the record as "puffed food guns." 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from said unit of certain other employees. The Company contended that there are improperly excluded from the alleged unit "green. card employees and all nonsupervisory maintenance or mechanical. employees and nonsupervisory powerhouse employees, and all plant service employees except watchmen." The Union urges that the. exclusion of these classifications of employees is proper. The so-called "green card" employees at the Akron plant are. workers who have not been employed by the Company for 6 months within any 12-month period, and who, unlike the so-called "white- card" employees that have had such employment, do not receive- under the Company's personnel practices a guarantee of a minimum. number of hours of work and amount of wages, or bonuses, vaca- tions with pay, or retirement benefits. As of February 15, 1940,. the Company employed 113 green card workers and 503 white card workers. We are of the opinion that the exclusion of the green card workers, who engage in production work,2 from a collective bargaining unit comprising essentially production employees would be inappropriate, and that these workers form a constituent part: of such a unit. The green card workers perform work substan- tially the same as that of the white card production workers; they are subject to the same working rules; and except for the guar- antees and benefits available to the white card workers, mentioned above, they receive the same wages and work the same number of hours as the white card workers. The green card workers are not. temporary or seasonal employees and, save for a lay.-off, will con= tinue working for the Company indefinitely. In time they, or some. of them, will become white card workers. These facts establish a mutuality of interest in respect to wages, hours. of service, and work- ing conditions, between the green and white card workers precluding- a severance of green card workers from a production unit such as that alleged. We do not think that the Company's personnel prac- tices above set forth, or the eligibility rule of the Union in regard to membership, are determinative of the issue presented. Produc- tion employees may not be arbitrarily classified for purposes of the. appropriate collective bargaining unit so as to exclude from the unit some employees who are doing the same kind of work as those included in the unit. The maintenance or mechanical employees, the powerhouse employees, and the plant-service employees are all non-production workers. Organization by the Union, the only labor organization involved, has not been undertaken among them, and the Union does not admit them to membership or desire to represent them for col- lective bargaining. The employees themselves have evinced no 2 It is shown that as of February 15, 1940 , all of the 113 green card workers except 2 were production employees. QUAKER OATS COMPANY 593 desire to be represented by the Union. A unit limited to production -workers may be appropriate, and under the circumstances here involved we think it is appropriate.3 We find that all production workers of the Company in the pack- age, shipping, cereal, feed, puffed goods guns, upper plant and pancake and sack departments at its Akron,' Ohio, plant, including .green card production workers, but excluding all maintenance or mechanical employees, powerhouse employees, plant-service em- ployees, experimental or research work employees, clerical and -office employees; employees in a supervisory capacity, timekeepers, watchmen, and executives, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full benefit of their right to self- ,organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that' the question which has arisen concerning the representation of employees of the Company within the unit we have found to be appropriate can best be resolved by an election by secret ballot among these employees. However, since we have found a unit different from that alleged in the petition and claimed by the Union to be appropriate we shall depart from our usual rule and direct that an election be held in not less than thirty (30) nor more than sixty (60) days from the date of the Direction of Election, provided, however, that if within 30 days the Union noti- fies the Board at Washington, D. C., in writing that it does not desire that the election which we shall direct be held, we shall dismiss the petition without prejudice, for failure to allege an appropriate unit. Those employees in the unit we have found to be appropriate who were employed by the Company during the pay-roll period next preceding the Direction of Election shall be eligible to vote, subject to such limitations and additions as are set forth in the Direction. 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 representation .of employees of Quaker Oats Company, Akron, Ohio, 3 Cf. Matter of Standard Hat and United Hatters Cap & Millinery Workers Interna- tional Union, 17 N. L. R. B. 883; Matter of Hirsch Shirt Corporation and United Garment Workers of America (Affiliated with the A . F. of L.), 12 N. L. R. B.'553; Matter of McAdoo Sportswear Company Inc. and International Ladies Garment Workers Union, 12 N . L. R. B. 1199. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production workers of the Company in the package, ship- ping, cereal, feed, puffed' goods guns, upper plant and pancake and sack departments at its Akron, Ohio, plant, including green card production workers, but excluding all maintenance or mechanical employees, powerhouse employees, plant-service employees, experi- mental or research work employees, clerical and office employees, employees in a supervisory capacity, timekeepers, watchmen, and executives 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 Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Quaker Oats Company, Akron, Ohio, an election by secret ballot shall be conducted in not less than thirty (30) nor more than sixty (60) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Eighth Region, acting in this matter for the National Labor Rela- tions Board and subject to Article III, Section 9, of said Rules and Regulations, among all production workers of the Company in the package, shipping, cereal, feed, puffed goods guns, upper plant and pancake and sack departments of its Akron, Ohio, plant, including green card production workers, whose names appear on the pay roll of the Company during the pay-roll period next preceding the date of this Direction of Election, including employees not on that pay roll because they were ill, on vacation, or on said pay roll but temporarily laid off at the date of the election, but excluding those on said pay roll who at the date of the election have quit or been discharged for cause, and further excluding all maintenance or mechanical employees, powerhouse employees, plant-service em- ployees, experimental or research work employees, clerical and office employees, employees in a supervisory capacity, timekeepers, watchmen, and executives, to determine whether or not they desire to be represented by United Cereal Workers, Local No. 633, affiliated with Congress of Industrial Organizations, for the purposes of col- lective bargaining.