California Cotton Oil Corp.

i In' the Matter of CAtlFORNIA COTTON OIL CORPORATION and INTER= NATIONAL LONGSHOREMEN'S & ' WAAEHOUSEMEN'S UNION, LOCAL; No. '60, C. I. O. Case"No. R-1952.-Decided August 16, 1940, Jurisdiction 'cottonseed milling and processing industry. Investigation and Certification of Representatives : existence of question wheie employer refuses to accord full, recognition to union and.request certification 'be, obtained; eligibility of seasonal employees to vote; election, necessary. , Unit Appropriate for Collective Bargaining : all employees, engaged in handling and processing of feed, meal, and oil, including seed unloaders. Flint;,cc, MacKay, ,by, Mr. ,Wesley L. • Nutten, Jr., ,of Los' Angeles, Calif., for the Company. Gallagher, Wirin & Johnson', by Mr. Leo Gallagher, of Los Angeles, Calif., for the Union.,, Mr. Lou's Cokin, of counsel to the Board. DECISION DIRECTION OF ELECTION ' • ' , STATEMENT, OP' THE CASE ' t On May 27 , 1940, International Longshoremen's.& Warehousemen's Union, Local No. 60, herein called the Union, filed with the Regional Director for the Twenty-first ' Region (Los An 11,,W I geles,,, California) a, petition alleging that , a, question affecting , commerce had arisen con- cerning ,the representation of employees of California Cotton Oil Cor- poration , Vernon, California, herein called the Company , and rquest- 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 June 28, 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, inv estiga^' tion and, authorized ' the' Regional Director to conduct 'it- and to provide for an appropriate hearing ,upon due , notice. On July 1, 1940 , the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the Union, Los t Angeles Industrial Union Council, and upon Los n Ageles Ce{ ntral' 26,N, L, R. B.,INo, 7,3. ', r• '.t 1 . .' : is i. „ ;, 715 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Council. On July 3, 1940, the Regional Director issued an amended notice of hearing. Pursuant to notice, a hearing w as held on July 18, 1940, at Los Angeles, California, before William R. Walsh, the Trial Examiner duly designated by the Board. The Company and the Union 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, counsel for the Com- pany moved to dismiss the petition for lack of jurisdiction. The Trial Examiner reserved ruling thereon. The motion is hereby denied. 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 California Cotton Oil Corporation is a corporation organized under the laws of California, with its principal place of business at its oil mill plant at Vernon, California. The oil mill plant is commonly called the Los Angeles plant and has been,operated by the Company and its predecessors since 1918. The' principal and primary business of the Company is the milling and processing of cottonseed, the chief products of which are cottonseed oil, cake, meal, hulls, and first and second cut linters. 'The Company is engaged in the business of operat- ingseed bins, ginning seed' cotton, financing cotton growers, and buying and selling cotton. The principal raw material used by the Company in its operation of the oil mill plant is cottonseed. A small amount of flax seed is also crushed. During' the year` ending June 30, 1940, the Company pur- chased for the operation of its oil mill plant 55,435 tons of cottonseed and'flax seed, valued at $2,237,958.60, of which 3,538 tons valued at $182,741:05 were'purchased and shipped to the oil mill plant from out- side the State of California. Thus, 6.08 per cent of the tonnage-8.89 percent by value-of all seed was purchased in interstate commerce. During the year ending June 30, 1940, the Company sold 801,570,075 pound's of oil mill products, valued at $2,656,038.07, of which 10,427,- 942 pounds, valued at $257,069.22, were sold in interstate commerce. Thus, 9'.68 ,per cent of the'torinage-9.6 per cent by value-of the oil mill' products'wdre, sold' in interstate 'commerce. The Company operates two'coiton' gins in' Arizona'and 16 cotton gins in California, at which cottonseed is, for uniform, charges, separated from the lint. All cotton ginned in California gins is grown in Cali- CALIFORNIA COTTON OIL CORPORATION 717 fornia and all cotton ginned in Arizona gins is grown in Arizona. All of the cotton ginned at the Arizona gins is shipped to the Com- pany's oil mill plant at Vernon. The buying and selling of cotton is conducted by the Company through its cotton department located at Fresno, California, 230 miles from the oil mill plant. The primary object of the cotton department is to insure the.repayment of loans made by the Company's wholly owned cotton financing subsidiary by the centralizing of the cotton sales of, and thereby securing higher prices for, the growers financed by the Company's subsidiaries. The cotton department has in fact made it possible for growers to obtain better prices for their cotton than they formerly obtained, although the net profit of the cotton de- partment itself has been relatively small. The Company, purchasing about 'Jio of the cotton produced in California, is about the third, fourth, or fifth largest cotton purchaser in California. All cotton purchased by the Company through its cotton department, with the exception of several hundred bales, was grown and purchased within California. About one-third of the cotton sold by the Company is subsequently shipped by the purchasers from the Company in inter- state or foreign commerce. It is impossible to determine whether the remaining two-thirds is shipped in interstate or foreign commerce since the cotton is commingled by the purchasers with cotton pur- chased from other sellers of cotton, and cannot, therefore, be traced by such, purchasers. It is undisputed that of all cotton grown and sold in California approximately 90 to 95 per cent is ultimately shipped in interstate or foreign commerce. The Company employs approximately 125 employees at its Los Angeles plant, the only plant involved in this proceeding.' II. THE ORGANIZATION INVOLVED International Longshoremen's & Warehousemen's Union Local No. 60, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership all employees of the Com- pany engaged in the handling and processing of feed, meal, and oil, excluding clerical employees and employees having the right to hire and discharge. III. THE QUESTION CONCERNING REPRESENTATION The Union, claiming to represent a majority of the employees of the Company, has requested the Company to recognize it as the ex- elusive representative of its employees. The Company has refused to recognize the Union until it has been certified by the Board as exclusive representative of the employees. 1 See Matter of California Cotton Oil Corporation and Edible Oil Workers Union, Local 21569, A F of L , el al ,20N . L R B'540 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that a question has arisen concerning the 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 re- lation 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. : ' • ' , ` It , - • V. , THE APPROPRIATE UNIT ' , The Union urges that all employees of the Company engaged in han- dling and processing of feed; meal;'and 'oil, including seed unloaders, but excluding clerical' employees and those' employees having the power to hire or discharge, constitute a unit appropriate 'for the purposes of collective'bargaining.' The only ;controversy concerning the'unit concerns the seed unloaders: -The Union urges the inclusion of all such employees and the Company desires their exclusion. The Company contends-that the seed unloaders are casual employees and for that reason'should not be included in the'unit.' The Company hires seed unloaders when it starts' operating i•n' the fall and 'increases the number of them during the'height`of its season, employing as I many as eight at one time. Several employees testified at the'hes ring that they were transferred to the job of'u.nloading'seed during the height of the season and were subsequently transferred back to'their regular jobs in the plant. The' Company'stgted that if the seed unloaders prove to be satisfactory employees it transfers them to positions in the plant after their duties are completed as seed unloaders. The Com- pany's season lasts from 5 to 7 months annually and the seed unloaders usually work from'2 to 4 months. Under these 'circumstances we will include the seed unloaders in'the'unit. ' " ' ' ' ' " ' ' We find that all employees'of the Company engaged in handling and processing of feed, meal, and oil, including seed unloaders, but,exclud- ing clerical employees and those employees having the power to hire or discharge, constitute a unit appropriate for the purposes of col- lective bargaining and that said unit' will insure to employees of the Company their full 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 repre- sentation of employees of the Company can .best be resolved by an election by secret ballot. The Union urges that the May 13, 1940, pay CALIFORNIA COTTON- OIL CORPORATION 719 roll of: the Company be used to determine eligibility to vote in the elec- tion. The Company urges the use of a pay roll in October 1940. The Company's business is seasonal and. it operates its plant from 5 to, 7 months annually, commencing production in October and usually,shut- ting down in April or May- of each year. The May 13, 1940, pay roll wasi the .lasts normal pay roll until the Company resumes operations in the fall of 1940. The Company asks that eligibility to vote in the elec- tion be determined by the pay roll in October 1940, because, it con- tends, it has no employees at the present time. At the conclusion of it's operations in the spring of each year, the Company discharges all of its employees. It keeps no list of employees, maintains no personnel department, makes no commitments to its employees at the end of the season its to, future 'employment, and sends out' no notices to its em- ployees upon resumption' of operations in the fall. However, the su- perintendent of the Company testified that it is-the intention of the Company to rehire its old employees upon the resumption of operations' if they were satisfactory in the past season and that the Company would prefer to rehire its old employees. Of the 80 employees on the Company's pay roll of May 13, 1940, 68 employees have been employed by the Company for more than 12 months and 45 employees for a pe- riod exceeding 36 months. It is apparent that a substantial number of the employees return to the Company season after season and we shall adopt the May 13, 1940, pay roll for the purpose of determining eligi- bility to vote in the election. We find that those employees of the Company within the appropriate unit who were on the Company's pay roll of May 13, 1940, shall be eligible to vote. 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 California Cotton Oil Corporation, Vernon, California, 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 engaged in handling and process- ing of feed, meal, and oil, including seed unloaders, but excluding clerical employees and those employees having the power to hire or discharge, 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby 7 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that , as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with California Cotton Oil Corporation , Vernon, California, an elec- tion 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 di- rection and supervision of the Regional Director for the Twenty-first Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations , among all employees of the Company engaged in han- dling and processing of feed, meal , and oil whose names appear on the Company 's pay roll of May 13, 1940 , excluding clerical employees and employees having the power to hire or discharge , to determine whether or not they desire to be represented by International Long- shoremen's & Warehousemen 's Union, Local No. 60, affiliated with the Congress of Industrial Organizations , for the purposes of collective bargaining. MR. EDWIN S. SMITH took no part in the consideration of the above Decision and Direction of Election.