California Central Fibre Corp.

National Labor Relations Board - Board Decisions

Oct 15, 1942

44 N.L.R.B. 1226 (N.L.R.B. 1942)

In the Matter of CALIFORNIA CENTRAL FIBRE CORPORATION and TRUCK
DRIVERS, WAREHOUSEMEN & HELPERS UNION, LOCAL 898,'A. F. L.
Case No. R-4314.-Decided October 15, 194
Jurisdiction : see flax fibre producing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord petitioner recognition until certified- by the Board ; contract
which had been in effect for nearly a year with organization which appeared
to have ceased to function as representative of employees involved, held no
bar; election necessary.
Unit Appropriate for Collective Bargaining : warehouse, production, car-loading,
and general labor employees, excluding straw checkers, clerical and supervisory
employees, and those employees having the power to hire or discharge.
O'Melveny d Meyers, by Mr. Homer I. Mitchell, of Los Angeles,
Calif., for the Company.
Mr. Edward Achstetter, of El Centro, Calif., for the Union.
Miss Mary E. Perkins, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Truck Drivers, Warehousemen &
Helpers Union, Local 898, A. F.-L., herein called the Union, alleging
that a question affecting commerce had arisen concerning the' repre-
sentation of employees of California Central Fibre Corporation, El
Centro, California, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Robert C. Moore, Trial Examiner. Said hearing was held at
Los Angeles, California, on September 23, 1942. The Company and
the Union appeared and participated. All parties, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing' on the issues. The Trial Examiner's
rulings are free from prejudicial errors and 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 Central Fibre Corporation is a California corporation
having its principal place of business in El Centro, California, where it
44 N. L. R. B., No. 232. -
1226 , 0
CALIFORNIA CENTRAL FIBRE, CORPORATION 1227
is engaged in the production of seed flax fibre. It is a. subsidiary of
-Champagne Paper Corporation, Pisgah Forest, North Carolina:
,During 1941, the Company purchased over 37,000 tons of seed flax-
-straw, its principal raw material, 'all of which it procured from
-sources within the State of California. During the same period, the
'Company produced and sold seed flax fibre valued at not less 'than
,$500,000, all of which it sold to purchasers in States of the United
States other than California. The nature and volume of the Com-
pany's business has not changed substantially since December 1941.
i
II. THE ORGANIZATION INVOLVED
Truck Drivers, Warehousemen & Helpers Union, Local 898, is a
labor organization affiliated with the American Federation of Labor
and admits to membership employees,of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Union commenced , organization of the Company 's employees
about July 1, 1942. About July 24, 1942, it requested-recognition.
The Company refused to recognize the Union until it should have been
certified by the Board and informed the union representatives that a
contract which had been entered into in December 1941 between the
Company and Employees Association of the California Central Fibre
Corporation , herein called the Association , and which covered the em-
ployees the Union claimed to represent , was still in existence. At the
hearing the Company contended that the contract constitutes a bar to
.a new determination of representatives . The Union takes the posi-
tion that the Association is now defunct and that the contract should
not operate as a bar.
The Association , a labor organization , was organized in November
1941 and was incorporated as a non -profit corporation under the laws
of California. Under its bylaws 1 all powers were vested in a Board
of Directors - of three persons who were also to act as the officers of
the corporation . Provision was made for a bargaining committee,
which should have "full power to enter into any agreement respecting
wages , hours and working conditions without referring the same to
the members as a whole." -
Early in December 1941, the bargaining committee presented to the
Company a proposed contract . At a subsequent meeting the Company
rejected the Association 's contract and presented a draft of its own
which, -with some -changes, was signed on December 16, ,1941, by, the
Company and four of the five members of the bargaining committee.2
I The articles of incorporation and constitution, if any, were not introduced into e' i-
dence at the hearing •
2 Chester Tankersley, president of the Association., refused to sign the contract
1228 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
-At the hearing it was stipulated that a majority of the employees were
members of the Association at this time. No meeting of the member-
ship was ever held to discuss or ratify the contract before signing.
The contract, which granted to the- Association sole bargaining
rights, was for a term of a year and a half (until May 1, 1943), auto-
matically renewing itself thereafter year by year in absence of 60
days' written notice of a desire to terminate by either party. A wage
scale was set, with provision that upon written notice 60 days prior
to May,1 of any year either party might reopen negotiations on this
point.
Dissatisfaction with the contract was expressed by some of the
members and about 40 of them at once turned in their member-
ship cards to the officers of the Association in an effort to resign.
Several meetings of the, membership appear to have been held there-
after. Although the contract set up a grievance procedure culminat-
ing in arbitration, no grievance committee was ever elected by the
Association nor were any grievances ever taken by the Association
to the, Company foremen. About May 1, 1942, a group of plant
employees, including both members and nonmembers of the Associa-
tion, met and requested, the bargaining committee to ask the Com-
pany for a wage increase. Three members of the bargaining com-
mittee called upon the plant, manager and informed him of this re-
quest without asking any specific amount of increase. No further
meetings took place between the Company and representatives of the
Association; but on June 4, 1942, the Company posted a notice setting
forth a wage increase which stated that the increase was being made
"under the provisions of Section 10 of the Agreement of December
161 1944, between the Company and its employees Union, by which
the Company was given the right at any time to increase the wage
rate of any or all of its employees ..." 3 This action precipitated
a walkout on the part of a number of the employees who desired
a larger increase than that, granted. No further membership meet-
ings of the Association have been held since that time.
About July 1, 1942, certain of the employees approached the Union
for information concerning 'organization of the plant 'by the Union.
On August 18, 1942, after the refusal of the Company set forth
above to recognize the Union, 12 of the remaining members of the
Association met and voted unanimously to dissolve the Association
and to join the Union. Notice of the attempted dissolution of the
corporation was sent to the Secretary of State of California. Tank-
ersley, president of the Association, testified that at this time there
were only 14 members of the Association who still held membership
3 Section 10 of the contract provides that "the wages specified are minimum wages
and are not to be considered as preventing the Company from giving or the employees from
receiving any additional compensation."
CALIFORNIA CENTRAL FIBRE. CORPORATION 1229
cards; 12 of whom were present and turned in their cards on August
18. No check has ever been made, however, to determine how many
cards were issued originally or how many are still outstanding. It.
is doubtful if the membership list is any longer in existence.
While it is doubtful if the actions of the members in turning, in
their cards and in voting to dissolve the corporation were sufficient
under the. laws of.. California to, terminate their rilembership 4 or to
dissolve the corporation, the facts set forth above indicate clearly
that the Association has for some time ceased to function as a repre-
sentative of the employees. Under these circumstances, the Decem-
ber 1941 contract cannot operate as a bar to a new determination of
representatives.' Moreover, since the contract has been in effect for
nearly a year, such a new determination of representatives cannot
be said to' encourage instability of labor relations at the Company's
plant.
A statement of the Regional Director introduced into evidence at
the hearing shows that the Union represents a substantial number of
employees in the unit hereinafter found to be appropriate.a
We find that a question affecting commerce has arisen, concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7): of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks a unit consisting of all warehouse, production, car-
loading, and general labor employees, excluding clerical and super-
visory employees and those employees having the power to hire or
discharge. The Company agrees that this unit, which is the same as
that covered by its contract with the Association, is in general appro-
priate.' This unit includes substantially all the employees of 'the Com-
pany other than those in a supervisory or clerical position.
Disagreement has arisen regarding the status of the straw checkers.
This work is a seasonal operation performed only during the summer,
4 No provision was made in the bylaws for voluntary resignation from the Association or
for termination of membership except by action of the Board of Directors, upon a mem-
ber's quitting the employ of the Company, or by non-payment of dues. Collection of dues
was made optional with the Board of Directois , however,' and,none has evef been made
since the corporation was first organized
See Hatter of National Battery Company and International Brotherhood of Electrical
1Poikcrs, Local Union B-1191, 28 N L It B 826, and following cases.
9 The Regional, Dii ector ' s statement shows that the names of 20 persons whose names
appear on the Companl's July 31, 1942, pay roll appear upon petitions designating the
Union as then bargaining agent On July 31, 1942, the Company employed 43 persons
Y The Company would adopt the wording of the contract specifically excluding engineers
from the unit The Company employs t'vo engineers who woi k some of the time in the
office and "design the work and have it made there in the shop" One of them is at pies-
cut located in Central California supervising the operation of a portable combine which
processes the stiaw in the field for the Company Since both appear to have supervisory
duties and the power to hire and discharge they are automatically excluded by the phrase
"supervisory employees and those employees having the power to hire or discharge."
1230 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
t
when the' Company is 'receiving straw for processing and may employ
,as many as six• checkers.. The checker receives, weighs, and keeps a
record of the straw brought to the plant by farmers. He is located
at. a desk in the "scale house" some distance from the plant and does
no manual work. His records go to 'the plant office where they become
a part of the Company's accounting records and provide. a basis for
payment of farmers., The Company claims that the position is _a
clerical one and should be excluded. The plant manager testified that
ordinarily the checkers are college students hired for the summer who
do not transfer to production work. Since the duties of the checkers
are largely clerical we shall exclude them from the unit.
We find that all warehouse, production, car-loading and general
labor employees of the Company; excluding straw checkers, clericaP
and supervisory 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 Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that -the question concerning representation -which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
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-
tioris,Board Rules and-Regulations-Series 2, as amended, it is-hereby
DIRECTED that, as a part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with California Central Fibre Corporation, El Centro, California, an
election by secret ballot shall be conducted as early as possible but not
later than thirty (30) days fro-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, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including any such
employees'who did not work during said pay-roll period because they
were ill or on vacation, or in the active military service or training of
CALIFORNIA CENTRAL: FIBRE CORPORATION 1231
the United States, or temporarily laid off, but excluding any who have
since quit or been discharged for cause, to determine whether or not
they desire to be represented by Truck Drivers, Warehousemen &
Helpers Union, Local 898, A. F. L- for the purposes of collective
bargaining.
MR. WM. M. LEISERSON took no part in the consideration of the above
Decision and Direction of Election.