Miller Cereal Mills

In the Matter of MILLER CEREAL MILLS and FEDERAL LABOR UNION No. 21576 CEREAL, FLoull, FEED AND GRAIN ELEVATOR WORKERS, A. F. OF L. Case No. R-1754.-Decided April 15, 1940 Grain Milling Industry-Investigation of Representatives : controversy con- cerning representation of employees : recognition as exclusive bargaining agency requested by labor organization, not granted by employer-Unit Appropriate for Collective Bargaining : disagreement , nature of which does not appear, be- tween employer and labor organization over unit proposed by latter ; Board finds appropriate a unit of all employees of the Company, exclusive of execu- tives, salesmen, office employees, supervisory employees other than working supervisors, dockmen, dock loaders, flake loaders , shipping clerks,, shipping- clerk helpers , skilled maintenance employees, and firemen ; at request of sole labor organization involved : ( a) supervisory employees other than working supervisors excluded ; and (b ) employees excluded who spend substantial part or all of their time in occupations which render. then eligible for, membership in locals of craft unions affiliated with same parent organization ;, over objec- tion of labor organization involved , office janitor included in unit where union requested inclusion of factory janitor-Election Ordered: Regional Director ordered to segregate in sealed containers for subsequent disposition by the Board the ballots, if challenged, of certain employees whose status or occupa- tion is not fully disclosed by the record. Mr. Daniel J. Leary, for the Board. Mr. Alfred C. Munger and Mr. Varro H. Rhodes, of Munger c' Rhodes, of Omaha, Nebr., for the Company. Mr. Roy N. Brewer, of Grand Island, Nebr., for the Union. Mr. William Stix, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 3, 1939, Federal Labor Union #21576, Cereal, Flour, Feed and Grain Elevator Workers, 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 affect- ing commerce had arisen concerning the representation of employees of Miller Cereal Mills, Omaha, Nebraska, herein called the Company, and requesting an investigation and certification of representatives 22 N. L. R. B., No. 73. 988 MILLER CEREAL MILLS 989 pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 9, 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 the Regional Director to conduct 'an investigation and pro- vide for an appropriate hearing upon due notice. On February 20, 1940, the Regional Director issued a notice of hearing, and on February 23, 1940, an order postponing the hearing, copies of which were duly served upon the Company and the Union. Pursuant to the order of postponement a hearing was held on March 7, 1940, at Omaha, Nebraska, before Albert L. Lohm, the Trial Examiner duly designated by the Board. The Board and the Com- pany, represented by counsel, and the Union, represented by a gen- eral organizer, participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner granted a motion by the Union to amend the petition and passed on objections to the admis- sion of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. They are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Miller Cereal Mills, a Nebraska corporation, with its office, eleva- tor, mills, and warehouse at Omaha, Nebraska, is engaged in the mill- ing of grain into human food, animal feeds, industrial products, and artificial snow. The Company's sales of industrial products are made directly to manufacturers; other products are usually sold to manufacturers or wholesale distributors through resident brokers. During the year 1939 the Company purchased over $450,000 worth of raw materials, of which approximately. 67 per cent in value orig- inated in States other than Nebraska. During the same period prod- ucts valued at more than $600,000, constituting approximately 85 per cent of its sales, were sold by the Company in States other than Nebraska. At the time of the hearing, the Company employed approximately 250 employees, exclusive of executives, salesmen , and office employees. H. THE LABOR ORGANIZATION INVOLVED Federal Labor Union #21576, Cereal, Flour, Feed and Grain Ele= vator! Workers, affiliated with- the American Federation of Labor, is 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a labor organization which admits to membership employees of the Company. M. THE QUESTION CONCERNING REPRESENTATION On September 21, 1939, the Union, claiming to have been desig- nated as collective bargaining representative by a majority of the Company's employees, asked for recognition as exclusive bargaining agent. While the Company at that time, and at all times thereafter, manifested a willingness to deal with the Union, it has at no time complied with the Union's demand for exclusive recognition. We find that a question has arisen concerning the representation of the Company's employees. TV. 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 Union contends that the bargaining unit should comprise all of the Company's. employees except executives, salesmen, office em- ployees, certain supervisory employees, the office-janitor, dockmen, dock loaders, flake loaders, shipping clerks, shipping-clerk helpers, warehouse 'employees, skilled maintenance employees, and firemen. As thus defined, the unit would include approximately 200 employees. The Company, it` appears, does not agree that this is an appropriate unit but the record does not disclose the basis of its disagreement. The Company's executives, salesmen, and office employees are dis- tinguished by the character of their duties and training from the workers in the unit proposed by the Union and are, moreover, in- eligible for membership in that organization. Consequently, we shall exclude these employees from the unit. The dockmen, dock loaders, flake loaders, shipping clerks, ship- ping-clerk helpers, warehouse employees, skilled maintenance em- ployees, and firemen employed by the Company are eligible for membership in craft unions, with locals in Omaha, affiliated with the American Federation of Labor, with which the Union is also affiliated." At the hearing, a representative of the Union stated "The Company's pay roll lists employees by departments and does not, for the most part, classify ' them according to the above-mentioned categories. However, the record. estab- lishes that Benjamin Kavalec , Clarence Pamp, Woodrow Hansen , Paul Baade, Kenneth MILLER CEREAL-MILLS 991 that it did not wish to represent these employees. Under these cir- cumstances we will exclude them from the unit.2 The Union similarly seeks to exclude from the unit Carl Berish, John Berka, and Charles Knight. Berish and Berka spend half or more of their time on the loading dock, although they are also assigned to sweeping floors and cleaning and sorting sacks. Knight 'works half of each week as a machinist and the other half as a relief supervisor. Since these men spend a substantial portion of their time in occupations identical to those of employees whom we shall exclude from the unit, we consider, the Union's contention reasonable and will accordingly exclude them from the unit. The Union wishes to include the mill janitor in the unit but to' exclude the office janitor. While the latter is a woman, the Union' does not attempt to justify her exclusion on that ground,,nor could it validly do so, for the unit which it proposes includes other women' employees. The duties of the office janitor are more nearly similar to those of employees whom the Union wishes to include than to those of employees whom the Union wishes to exclude from the unit. The latter employees fall essentially into two categories : first, workers eligible for membership in A. F. of L. unions other than the petitioner;' and second, those who constitute the Company's managerial, super-: visory, sales, and office personnel. It is apparent that the 'office, janitor is not eligible for membership in the A. F. of L. craft unions.' Moreover, due to the nature of the office janitor's work, we cannot assume that in the event that the' salesmen or the office personnel, which consists of clerks, stenographers, and bookkeepers, should seek to bargain collectively, they would admit the office janitor to membership in their organization. ' Consequently, it is probable that, if excluded from the present unit, the office janitor would be denied, representation for purposes of collective bargaining. In view of these considerations, we shall, include the office janitor in the units - Rabuck, and Vere Anderson are dockm,en and/or flake loaders ; that Joe Novak, Tom Tylkowski, Dwight Cook, and John Malone are warehouse employees ; and that the employees of Maintenance Department No. 5 are skilled maintenance employees. Since Herbert Klockner is engaged in gathering , making up, and dispatching samples, we con- clude that he is a shipping clerk The record further discloses that Creighton Belita and Adolph Berka are shipping-clerk helpers. 2 See Matter of Westchester Apartments, Inc and United Building Service Employees, Local 675, 17 N. L. R. B. 433; Matter of Seymour Packing Company and Amalgamated' =Meat_ Cutters band.Butcher Workmen , of North America, Local No. 176, affiliated with the A. F. of L., 12 N. L. R. B. 1098; Matter of Armour & Company ;and Packing 'House Workers Organizing Committee for United Packing House Workers, Local 347, 8 N. L. R. B. 1100. Cf. also Matter of B. & B. Shoe Company and United Shoe Workers of America, Local 48, affiliated with the Congress of Industrial Organizations , 15 N. L. R. B. 744;' flatter of Wilson & Company and L. U. #6, United Packinghouse Workers of America of Packinghouse Workers Organizing Committee, affiliated with C . 1 O., 14 N. L R. B. 283; Matter of Illinois Knotting Company and Federal Labor Union No. 21025, affiliated with A. F. of L, 11 N. L. R. B. 48; Matter of Century Biscuit Company and United Baking Workers, L. I. U., No. 86, 9 N. L. R. B . 1257. D See Matter of Stonewall Cotton Mills, Incorporated and Textile Workers' Federal Labor Union, Local 21723, A. F. of L., 16 N . L. R. B. 483. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union seeks to exclude from the unit employees whose duties are primarily supervisory and to include those who work as mem-, bers of crews over which they exercise supervision. This distinction between different classes of supervisory employees is one which we have frequently recognized and have permitted where only one labor organization is involved. We shall include the working supervisors and exclude all others. 4 The Union also seeks the exclusion of Alvin R. Berck, described by John J. Rogers, president of the Union, as a "supervisor and machinist," and of Arthur Beber, who works in the same depart- ment as Berish and Berka, whom we have excluded from the unit. The record, however, is not clear as to the nature of Beber's duties, and there is insufficient information as to the division of Berck's work to enable us to determine whether or not they should be ex- cluded from the unit. Accordingly we will provide that such determ- ination, if necessary, shall be made after the election which we here- inafter direct to be held. We find that all employees of the Company, exclusive of executives, salesmen, office employees, supervisory employees other than working supervisors, dockmen, dock loaders, flake loaders, shipping clerks, shipping-clerk helpers, skilled maintenance employees, and firemen, constitute a unit appropriate for the purposes of collective bargain- ing and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bar- gaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The Union does not seek certification upon the basis of evidence adduced at the hearing but asks that an election be held. We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. We have found that all supervisory employees other than work- ing supervisors should be excluded from the unit appropriate for collective bargaining. The record, however, does not enable us to determine the identity of the employees thus to be excluded nor, as we have pointed out above, to determine whether or not Alvin R. Berck and Arthur Beber should be included in the unit. If in the conduct -of• the election directed herein Berck's or Beber's right to vote is challenged, or if the right to vote of any employee is challenged on the ground that he is a supervisory employee, other than a work- ' See Matter of Kansas Milling Company and Flour, Feed, Seed, Cereal d Elevator Workers, Untion, No 20991, A. F. of L, 15 N . L. R. B 71; Matter of Lidz Brothers, In- corporated and United Wholesale Employees, ( Local No. 65 ), 5 N. L. R. B. 757; Matter of American Hardware Corporation and United Electrical and Radio Workers of America, 4 N.,L.,R . B.•412. MILLER CEREAL MILLS 993 ing supervisor, the Regional Director shall permit him to vote but shall segregate his ballot in a sealed container pending disposition of it by the Board. The parties agreed that, if the Board ordered an election herein, all employees in the appropriate unit who appear on the pay roll of February 21, 1940,5 should be eligible to vote. We construe this agreement to include among those eligible to vote employees in the unit who did not work during the February 21 pay-roll period be- cause they were ill or on vacation, or who were then or have since been temporarily laid off, and to exclude those employees who have since quit or been discharged for cause. We see no reason to depart from the agreement of the parties, as thus construed, and we shall direct accordingly. 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 Miller Cereal Mills, Omaha, Nebraska, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company, exclusive of executives, sales- men, office employees, supervisory employees other than working supervisors, dockmen, dock loaders, flake loaders, shipping clerks, shipping-clerk helpers, skilled maintenance employees, and firemen, constitute a unit appropriate for the purposes of collective bargaining. 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, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Miller Cereal Mills, Omaha; Nebraska, 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 Seventeenth 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, among all employees of the Company who appear on the pay roll of 6 February 21 was the beginning of a 2 -week pay-roll period 994 i DECISIONS OF NATIONAL LABOR , RELATIONS BOARD February 21, 1940, or who, did not work during the February 21 pay-roll period because they were ill or on vacation or temporarily laid off, but excluding executives , salesmen, office employees, super visory employees other than working supervisors , dockmen, dock loaders, flake loaders , shipping clerks, shipping -clerk helpers, skilled maintenance employees , and firemen, and also excluding employees who between February 21 and the date of the election have quit .or been discharged for cause , to determine whether or not they wish to be represented for the purposes of collective bargaining by. Fed- eral Labor Union #21576, Cereal, Flour, Feed and Grain Elevator Workers, A. F. of L.