Western Consumers Feed Co.

In the Matter Of WESTERN CONSUMERS FEED Co. and I. L. W. U. GRAIN, PRODUCE HANDLERS AND WAREHOUSEMEN'S LOCAL UNION No. 1-79, C. I. O. Case No. R-1761.Decided April 8, 1940 Hay, Graz, and Mixed Daury Feed Sellimy Industry Invest,gateoa of Repre- sentatives : controversy concerning representation of employees : rival unions; refusal of employer to recognize either as exclusive bargaining agency-Un2t Appropriate for Collective Bargaining : truck drivers, maintenance men, ware- housemen, and processors , excluding supervisory, clerical, and office employees ; agreement as to-Election Ordered: eligibility to vote determined as of pay roll immediately preceding date of Direction of Election. Mr. Frank A. Mouritsen, for the Board Mr. George O. Smith, of Los Angeles, Calif., for the Company. Gallagher, Wirin and Johnson by Mr. A. L. Wirin, of Los Angeles, Calif., for the I. L. W. U. Mr. A. H. Petersen, of Los Angeles, Calif., for the Teamsters. Mr. Bliss Daffan, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 20, 1940, I. L. W. U. Grain, Produce Handlers and Warehousemen's Local Union No. 1-79, affiliated with the Congress of Industrial Organizations, herein called the I. L. W. U., filed with the Regional Director for the Twenty-first Region (Los Angeles Cali- fornia) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Western Con- sumers Feed Co., Hynes, California, herein called the Company, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 29, 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 investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 22 N. L. R. B., No. 44. 746 I WESTERN CONSUMERS FEED CO. 747 On February 29, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the I. L. W. U., International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, Local 913, A. F. of L., herein called the Teamsters, a labor organization claiming to represent employees directly affected by the investigation, and upon Central Labor Council and Los Angeles Industrial Union Council. Pursuant to notice, a hearing was held on March 15, 1940, at Los Angeles, California, before William B. Barton, the Trial Examiner duly designated by the Board. The Board, the Company, the I. L. W. U., and the Teamsters were represented by counsel who participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing 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 1. THE BUSINESS OF THE COMPANY Western Consumers Feed Co. is a California corporation with its place of business at Hynes, California. It is engaged in the sale of hay, grain, and mixed dairy feed. During the year 1939 merchan- dise purchased by the Company for use in its business amounted to the sum of $1,266,214. Approximately 12,847 tons of this merchan- dise, costing $299,974, was shipped to the Company from States other than California and from foreign countries; and approximately 4,464 tons of such merchandise, costing $91,076, shipped to the Com- pany from plants in California, originated in States other than California and in foreign countries. Total sales of the Company during the months of January and February 1939 amounted to the sum of $180,601.53, and for the same months of 1940; to the sum of $212,214.26. Ninety-five per cent of the products of the Company are sold to dairy farms within the State of California. The remain- ing 5 per cent of the products of the Company are sold outside the State of California. At the time of the hearing the Company had 32 employees, excluding supervisory, clerical, and office employees. H. THE ORGANIZATIONS INVOLVED International Longshoremen's and Warehousemen's Union, Grain, Produce Handlers and Warehousemen's Local Union No. 1-79, is a 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization affiliated with the Congress of Industrial Organi- zations. It admits to membership employees of the Company. International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, Local 913, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION Prior to February 1940 most of the employees of the Company were members of Hay Haulers and Fertilizer Drivers and Helpers' Union, No. 913, herein called Local No. 913, affiliated with the Ameri- can Federation of Labor. The membership of this organization consisted of employees of the Company and of other plants in the vicinity. On or about February 3, 1940, the Executive Board of Local No. 0-13 passed a resolution to change its affiliation to Interna- tional Longshoremen's and Warehousemen's Union. On February 13 and 14, 30 of the 32 employees of the Company went to the head- quarters of Local No. 913 and affixed their signatures to a writing which stated, in substance, that the signers thereof were no longer members of Local No. 913 but were now members of the I. L. W. U. On February 16 the I. L. W. U. received its charter. At a meeting held that night the 75 members present voted unanimously for the change of affiliation. On or about February 20 Hart Reynolds, a representative of the I. L. W. U., met with representatives of the Company and requested written acknowledgment from the Company recognizing the I. L. W. U. as the bargaining representative of the employees. The Company officials requested time to consider the matter. Several conferences were held thereafter between Reynolds and officials of the Company concerning recognition of the I. L. W. U. On or about February 20 the Company advised Reynolds that the Teamsters were also claiming to represent a majority of its employees and had re- quested recognition, and that the Company would await a determina- tion of the Board as to the bargaining representative of its employees. 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 WESTERN CONSUMERS FEED CO. 749 tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Company and the unions involved agree that a unit appropriate for purposes of collective bargaining consists of all truck drivers, maintenance men, warehousemen, and processors, excluding super- visory, clerical, and office employees. We see no reason for not finding such unit appropriate. We find that all truck drivers, maintenance men, warehousemen, and processors, excluding supervisory, clerical, and office employees constitute a unit appropriate for the purposes of collective bargain- ing, and that such 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. There is a conflict between the I. L. W. IT. and the Teamsters con- cerning whether three employees, F. S. Moore, Robert Skinner, and B. H. Hoffman, come within the above unit. Moore is a truck driver whose duties differ from those of other truck drivers in the employ of the Company only to the extent that he makes a daily trip hauling milk from a dairy operated by the Company to a nearby creamery. During the remainder of the day Moore is engaged in hauling hay and feed along with other truck drivers of the Company. Skinner is a truck driver engaged exclusively in delivering milk from the dairy to the creamery at night and on Saturday and Sunday after- noon. Like other truck drivers in the employ of the Company, Moore and Skinner are paid an hourly rate. Their trucks operate from the Company's plant and are serviced and repaired there. We find that Moore and Skinner are in the appropriate unit. Hoffman is known as a "swamper." He assists the truck drivers in loading and unloading trucks and freight cars. Hoffman is paid on a piece-rate basis, sometimes by the Company and at other times by the truck drivers. While other "swampers" are employed by the Company during rush periods, Hoffman is given preference over others respecting any available work. During the rush season in the harvest months Hoffman receives as much as 5 days a week employment from the Company and at other times as little as 3 days a month. We find that Hoffman is in the unit. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing the I. L. W. IT. offered in evidence the writing referred to above, signed by 30 employees of the Company on Febru- ary 13 and 14, 1940, acknowledging membership in the I. L. W. U. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Teamsters introduced in evidence 32 cards variously dated from February 20 to February 26, 1940, signed by employees of the Com- pany authorizing that organization to represent the signers thereof in collective bargaining. There are 32 employees in the appropriate unit. We find that an election is necessary to determine the question concerning representation. The Company and the unions involved agreed to the use of a pay roll immediately preceding the date of the Direction of Election herein to determine eligibility to vote. Those eligible to vote shall be the persons in the appropriate unit employed by the Company during the pay-roll period immediately preceding the date of the Direction of Election, including those 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, and excluding those who have since quit or been discharged for cause. 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 Western Consumers Feed Co., Hynes, 'California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All truck drivers, maintenance men, warehousemen, and proc- essors, excluding supervisory, clerical, and office employees, constitute a unit appropriate for the purposes of collective 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-111, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purpose of collective bargaining with Western Consumers Feed Co., Hynes, California, an election by secret ballot shall be 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 Twenty-first Region, acting in-this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, WESTERN CONSUMERS FEED CO. 751 among all truck drivers, maintenance men, warehousemen, and proc- essors employed by the said Company during the pay-roll period immediately preceding the date of this Direction of Election, exclud- ing supervisory, clerical, and office employees, and those who have since quit or been discharged for cause, but 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, to determine whether they desire to be represented by I. L. W. U. Grain, Produce Handlers and Warehousemen's Local Union No. 1-79, C. I. 0., or by the Teamsters Union No. 692, A. F. of L., for the purposes of collective bargaining, or by neither., i The I. L. W. U. and the Teamsters requested that their names appear on the ballot in the respective forms set forth in this Direction of Election.