Albers Milling Co.

National Labor Relations Board - Board Decisions

Feb 17, 1942

38 N.L.R.B. 1331 (N.L.R.B. 1942)

In the Matter of ALBERS MILLING COMPANY and INTERNATIONAL LONG-
SHOREMEN & WAREHOUSEMEN'S UNION, LOCAL 26, C. I. O.
Case No. B-3450.-Decided February 17,1942
Jurisdiction : flour nulling industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival unions ; refusal to accord recognition ; contract, not
asserted as a bar, and entered into with notice of rival union's claim to rep-
resentation, no bar to, election necessary.
Unit Appropriate for Collective Bargaining : all employees of the Company,
excluding office employees, and supervisory employees having the right to hire
and discharge; truck drivers excluded, notwithstanding desire of one union for
their inclusion, where that union has made no showing of representation among
them, and where another union has represented and bargained for them over a
period of several years.
Mr. Fred Karlsrud, of Los Angeles, Calif., for the Company.
Mr. Elliott Wax and Mr. Alfred Caplan, of Los Angeles, Calif., for
the I. L. W. U.
Mr. Thomas L. Pitts, of Los Angeles, Calif., for the Teamsters.
Mr. H. M. Johnson, of Bell, Calif., for Local No. 21830.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 28, 1941, International Longshoremen & Warehousemen's
Union, Local 26, C. I. 0., herein called the I. L. W. U., filed with the
Regional Director for the Twenty-first Region (Los Angeles, Califor-
nia) a petition alleging that a question affecting commerce had arisen
concerning the representation of employees of Albers Milling Com-
pany, herein called the Company, at its plant at Los Angeles, Califor-
nia, and requesting 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 December 15, 1941, 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 Rela-
38 N. L. R. B., No. 237.
1331
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions 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.
On December 29, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, and
the I. L. W. U., and upon Wholesale Delivery Drivers' & Salesmen's
Union, Local 848, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, affili-
ated with the A. F. of L., herein called the Teamsters, and Flour, Feed
& Cereal Workers Union, Local No. 21830, affiliated with the Ameri-
can Federation of Grain Processors Council, affiliated with the A. F.
of L., herein called Local No. 21830, labor organizations claiming to
represent employees having an interest in the investigation. Pursuant
to notice, a hearing w-as held on January 9, 1942, at Los Angeles, Cal-
ifornia, before Maurice J. Nicoson, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Company, the I. L. W. U.,
the Teamsters, and Local No. 21830, were represented 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, the Trial
Examiner made rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminer 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
The Company, an Oregon corporation, operates mills at Portland,
Oregon, Peoria, Illinois, Seattle, Washington, and Los Angeles and
Oakland, California, where it is engaged in the business of milling
flour and its byproducts. The present controversy concerns only the
Los Angeles plant. The chief operation of this plant consists in the
production of animal feeds, which involves preparing assorted grains,
and then combining them with concentrates and meals, according to
formula, to form various mixtures. The subsequent mixtures or feeds
are then sacked and distributed on the market. During the fiscal year
1940, the Company purchased raw materials in the sum of approxi-
mately $1,200,000. Of this amount, approximately $400,000 worth was
obtained from sources outside the State of California. ' During the
same period, the Company shipped approximately $50,000 worth of
its finished products to points outside the State of California, while
ALBERS MILLING COMPANY 1333
selling $1,500,000 worth of finished products within the State of
California'
The Company admits that in its operations at the Los Angeles
plant it is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
International Longshoremen & Warehousemen's Union, Local 26,
affiliated with the Congress of Industrial Organizations, is a labor
organization which admits to membership production and mainte-
nance employees and truck drivers of the Company.
Flour, Feed & Cereal Workers Union, Local No. 21830, is a labor
organization, affiliated with the American Federation of Grain Proc-
essors Council, affiliated with the American Federation of Labor,
admitting to membership production and maintenance employees of
the Company.
Wholesale Delivery Drivers' & Salesmen's Union, Local 848, affili-
ated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor organization, affili-
ated with the American Federation of Labor, admitting to membership
truck drivers of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The I. L. W. U. -was refused recognition by the Company on or
about October 15, 1941, because the Company then had an exclusive
closed-shop contract with Local No. 21830 covering the production
and maintenance workers. This contract, effective December 1, 1939,
for one year, was renewable for successive years if neither party gave
notice of termination within 60 days of the lapse of one year. The
1939 contract was not terminated in 1940 and thus was effective until
December 1, 1941. On September 27,1941, Local No. 21830 gave notice
of its desire to negotiate an increase in wages. On December 1, 1941,
the Company and Local No. 21830 signed a new contract, effective for
one year and for successive yearly periods unless terminated in a man-
ner similar to that described above with respect to the 1939 contract.
Local No. 21830 does not assert that its contract constitutes a bar
to a determination of r6presentatives. Moreover, if such a contention
had been made it would not be valid, as the notice of September 27,
1941 prevented the automatic renewal clause from becoming opera-
tive. Inasmuch as a new contract was subsequently executed, after
' The record is not clear as to whether these figures pertain to the Los Angeles plant solely,
or to all the Company's California plants
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the I. L. W. U. had given notice of its representation claims, it does
not constitute a bar to a present determination of representatives.'
The I. L. W. U. and Local No. 21830 submitted to the Regional
Director-evidence showing that each represents a substantial number
of employees in the unit hereinafter found appropriate.3
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
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The I. L. W. U. desires a unit of all employees, including truck
drivers and production employees, but excluding office employees
and supervisory employees having the right to hire or discharge.
Local No. 21830 contends for the same unit, except that it would
exclude truck drivers on the ground that they are represented by the
Teamsters. The Teamsters contends that the truck drivers should
not be included in a unit of production and maintenance employees.-
The Company takes no position as to the appropriate unit.
Since October 30, 1937, the Company has dealt exclusively with
Local No. 21830 in successive, written, closed-shop contracts cover-
ing production and maintenance employees. The 1940 contract ex-
pired in November 30, 1941, having been terminated by notice of
Local No. 21830 on September 27, 1941, that it desired to enter into
negotiations for wage increases. The present contract which was
signed December 1, 1941, after notice of the filing of the petition
2 Matter of Southern Wood Preserving Company and District 50, United Mine Workers of
America, affiliated with the Congress of Industrial Organizations, 37 N. L. It. B 25,
Matter of Radio Wire Television , Inc. and Local 430, United Electrical, Radio it Machine
Workers of America, C. I. 0., 30 N. L R. B. 930.
9 The Regional Director 's statement shows that the I L. W. U. submitted 20 application-
for-membership cards, 2 being undated , 1 dated September 22, 1941 , 7 dated October 22, 1941,
and 10 dated October 23 , 1941. Of these , 14 of the signatures appear to be genuine and 6
are printed ; all bear the names of persons on the pay roll of October 30, 1941. Local No.
21830 submitted 22 notarized designation slips, 17 being dated October 31, 1941, 2 dated
November 1, 1941 , and 3 dated November 3, 1941. All the signatures appear to be genuine
and all the names thereon appear on the above -mentioned pay roll. There are about 38
employees in the appropriate unit. The Teamsters stated that it had membership cards for
the 3 drivers in the plant
ALBERS MILLING COMPANY 1335
by the I. , L. W. U., also covers production and maintenance em-
ployees. Truck drivers have not been included in any of these con-
tracts.' For several years the Company has dealt with the Teamsters
respecting its truck - drivers, pursuant to a verbal contract relating
to wages and hours.
The truck drivers haul products from the plant and bring deliveries
to the plant. It appears that other employees load and unload
the goods transported by the truck drivers. They perform no work
within the plant. According to the uncontradicted testimony of the
representative of the Teamsters, all the truck drivers belong to that
organization. So far as appears, none of the truck drivers has
joined the I. L. W. U.
We are of the opinion that truck drivers should be excluded since
.the I. L. W. U. has made no showing of representation among them,
and since the Teamsters has represented and bargained on behalf of
the truck drivers for several years.
We find that all employees of the Company at its Los Angeles,
California,, plant, excluding truck drivers, office employees, and super-
visory employees having the right to hire or discharge, constitute a
unit appropriate for the purposes of collective bargaining, and that
,such unit will insure to the employees of the Company the full-bene
fit of their-right to self-organization and to collective bargaining,
and otherwise will effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by the holding of an election by secret
ballot, and we shall so direct. Those eligible to vote shall be the
employees in the appropriate unit who were-employed during the
pay-roll -period immediately preceding the date of our Direction of
Election, subject to the limitations and additions set forth therein.
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 Albers Milling Company, Los Angeles,
California, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the Act. -
The Company has contracts with' the I L..W U. respecting its production and mainte-
nance employees at the Seattle and Oakland plants The contract for the Seattle plant does
not include truck drivers; the record is not clear as to whether the truck drivers at the
Oakland plant are included.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. All employees of the Albers Milling Company , at its plant in Los
Angeles, California, excluding truck drivers, office employees, and
supervisory employees having the right to hire or discharge, consti-
tute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the 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 Rela-
tions 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 Albers Milling Company , Los Angeles , 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 direc-
tion 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 Albers Milling Company, at its
plant in Los Angeles , California , who were employed during the pay-
roll period immediately preceding the date of this Direction of Elec-
tion, including employees who did not work during such pay-roll
period because they were ill, or on vacation , or in the active military
service or training of the United States, or temporarily laid off, but
excluding truck drivers , office employees, and supervisory employees
having the right to hire or discharge, and those employees who have
since quit or been discharged for cause , to determine whether they
desire to be represented by International Longshoremen & Warehouse-
men's Union, Local 26, C . I. 0., or by Flour, Feed & Cereal Workers
Union, Local No. 21830, affiliated with the American Federation of
Grain Processors Council, affiliated with the A . F. of L., for the
purposes of collective bargaining , or by neither.