Lamar Cotton Oil Co.

National Labor Relations Board - Board Decisions

May 13, 1946

67 N.L.R.B. 1386 (N.L.R.B. 1946)

In the Matter of LAMAR COTTON 011, COMPANY and UNITED PACKING-
HOUSE WORKERS OF AMERICA, CIO
Case No. 16-R-1587.-Decided May 13, 19. 6
Long & Wortham, by Messrs. R. W. Wortham and O . B. Fisher,
both of Paris , Tex., for the Company.
Mr. W. L. McMahon, of Forth Worth, Tex., and Messrs. Will Jones
and Claud Henricks , both of Paris , Tex., for the Union.
Mrs. Margaret H. Patterson , of counsel to the Board.
DECISION
AND
DIRECTION
STATEMENT OF THE CASE
Upon the basis of a petition duly filed by United Packinghouse
Workers of America, CIO, herein called the Union, alleging that a
question affecting commerce had arisen concerning the representa-
tion of employees of Lamar Cotton Oil Company, Paris, Texas, herein
called the Company, the National Labor Relations Board on February
20, 1946, conducted a prehearing election pursuant to Article III, Sec-
tion 3,1 of the Board's Rules and Regulations, among employees of
the Company in the alleged appropriate unit, to determine whether
or not they desired to be represented by the Union for the purposes of
collective bargaining.
At the close of the election a Tally of Ballots was furnished the
parties. The Tally shows that there were approximately 48 eligible
voters and that 32 of these eligible voters cast valid ballots, of which
4 were for the Union, I against, and 28 were challenged.
Thereafter, pursuant to Article III, Section 10,2 of the Rules and
Regulations, the Board provided for an appropriate hearing upon
due notice 2 before Glenn L. Moller, Trial Examiner. The hearing
I Br amendment of November 27, 1945 , this Section of the Rules now permits the con-
duct of it seeiet ballot of emplovees prior to hearing in cases which present no substantial
issue
As amended November 27, 1945 , this Section pros ides that in instances of prehearing
elcerions, ail issues, including issn , s with respect to the conduct of the election or conduct
affecting th- election results and issues raised by challenged ballots, shall be heard at the
subsequent healing
The Trial Examiner referred to the Board the Company ' s motion to dismiss the petition
on the ground of improper notice of healing The notice complained of specified the
67 N L, II B, No 188.
1386
LAMAR COTTON OIL COMPANY 1387
was held at Paris , Texas, on March 13 , 1946. The Company and the
Union appeared and participated . All parties were afforded full op-
portunity to be heard, to examine and cross -examine witnesses, and
to introduce evidence bearing on the issues . The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed . The Trial Examiner neglected to rule upon a motion
by the Company to strike certain testimolly . 4 The motion to strike is
hereby granted . All parties were afforded opportunity to file briefs
with the Board. At the hearing the Company made several motions
to dismiss the petition . The Trial Examiner referred these motions
to the Board. The motions are hereby denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF TIIE COMPANY
Lamar Cotton Oil Company is a Texas corporation with its prin-
cipal office and place of business in Paris, Texas. The Company is
engaged in the milling and manufacturing of cotton seed oil and soy
bean oil. During the period August 1, 1945, to February 1, 1946,
the Company received raw materials at its Paris Mill valued at ap-
proximately $514,000, of which materials valued at approximately
$140,000 were received from points outside the State of Texas.
During the same period the Company produced finished products
valued at approximately $628,000, of which products valued at ap-
proximately $111,000 were shipped from the Paris Mill to points
outside the State of Texas.
The Company admit-, that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. TILE ORGANIZATION INVOLVED
United Packinghouse Workers of America,,aflillated with the Con-
gress of Industrial Organizations, is a labor organization admitting
to membership employees of the Company.
III. TIIE QUESTION CONCERNING REPRESENTATION
The Company has refused to recognize the Union as the collective
bargaining representatiVes of its employees in the alleged appropriate
unit.
County Court House a, the place of hearing whereas the hearing was actually conducted
in the Gibraltar Hotel Inasmuch as the Conipanv admits receipt of a Board telegram
ielative to the change of location, does not plead suiprise and makes no showing of
prejudice, we find the motion without merit and it is hereby denied
4 This motion related to certain hearsay testimony by one of the petitioner's witnesses
concerning statements made to him by the Company's seed buyer.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks a unit of all production and maintenance em-
ployees at the Company's "Paris, Texas, mill". In a motion to dis-
miss the Company contends that the petition does not cover the feed
mill and that in any event the feed mill cannot appropriately be in-
cluded in the unit.
The Company's only facilities located at Paris, Texas, consist of
a cotton oil mill and a feed mill located on opposite sides of the street
from each other. Both mills are under the direction of a single gen-
eral manager. Responsible to the general manager are a feed mill
manager in charge of the feed mill and a day and night superintend-
ent in the oil mill. There are no other supervisory employees. The
pay roll submitted by the Company to the Board's Field Examiner
at the time of the election listed the names of employees in both
mills. Not until the hearing did the Company make the contention
that there should be two units. The Company admits that all col-
lective bargaining would be conducted by the general manager in
charge of both mills. The feed mill obtains much of its raw material
from the cotton oil mill. The Union has organized both mills as a
single unit. It is clear that the wording of the petition was intended
to cover and does cover both mills.
All clerical employees work exclusively in the office and the parties
agree to their exclusion. One individual is classified as the superin-
tendent's helper.5 This individual is a millwright and general repair
and maintenance man. The record reveals that he has no supervisory
duties. The parties agree that he should properly be included in the
unit.
The Company has advanced no valid reasons in support of its con-
tention that two units would be appropriate. We therefore find that
all production and maintenance employees at the Company's Paris,
Texas, operations, including employees at the feed mill, and further
including the superintendent's helper, but excluding all clerical em-
ployees and all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
5 John Williams.
LAMAR COTTON OIL COMPANY 1389
V. THE DETERMINATION OF REPRESENTATIVES
At the hearing the Company questioned the eligibility of the 28
employees whose votes were challenged to participate in the election,
contending that they had been permanently discharged." The Com-
pany's business is seasonal. Crushing operations usually begin in
September and continue until April, although these dates may vary
slightly. It is the Company's practice to lay off most of its employees
at the end of a season. However, prior to the commencement of the
next season , an attempt is made tQ call back men who have worked in
the mill before. On February 14, 1946, the Company laid off the
day shift, and on the following morning, laid off the night shift
employees at the oil mill. On February 15, the Company received the
notices of election together with a letter from the Regional Director
stating that it appeared appropriate to conduct an election on the
date specified in the notice and requesting the Company to post copies
of the notice in conspicuous places throughout the plant.' On Feb-
ruary 16, the Company wrote to the Board's Regional Office asking
whether, in view of the closing of the oil mill, the Board still wished
the notices posted. On February 18, the Regional Director wired the
Company directing it to proceed with the posting. On the morning
of February 19, the Company posted the notices of election and the
election was conducted at 6 p. in. on the 20th."
The Company contends that when the mill was closed on the 15th,
the 28 men laid off were no longer employees and were therefore in-
eligible to vote. The Union contends that all of these individuals were
merely temporarily laid off and therefore were eligible to vote.
When the mill was closed, a quantity of seed was left in the presses
and crushed seed was left in the bins. This is a normal practice at the
end of a work week but is contrary to the Company's practice at the
9 The Company moved to dismiss the petition on the ground that the notice of election
described the eligibility period as being the pay-roll period ending February 16, 1946,
whereas there was no pay -roll period ending on February 16 This contention is based
upon the fact that the Company ceased operations on the morning of Friday , February 15.
The evidence shows , however, that it is impossible to determine ahead of time exactly
when any work week will end, since the superintendent determines at the end of each week
whether or not to work on Saturday and Sunday . The Company s established practice is
to end the pay-roll period with the last day of the week actually worked Inasmuch as
there was do evidence that anyone was misled by the election notice, we find no merit in
the Company ' s motion to dismiss on this ground
1In conclusion , the letter stated, "The conduct of this election is , of course , without
prejudice to your right to hearing under Section 9 of the Act before final determination
of the question concerning representation."
8 The Company appears to object to the fact that the notices of election were posted only
I day before the election and that the plant having already been closed , some of the em-
ployees were not notified of the election Notwithstanding the delay in posting, 33 of
the 48 employees designated on the official tally of ballots as eligible , actually voted in the
election Clearly , therefore , a representative vote was obtained Moreover , the Company
was responsible for the delay in posting and may not, therefore , be heard to object on this
ground
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
end of a production season. The evidence revealed that a sufficient
supply of seed remained to keep the mill operating for another 2
weeks. This supply of seed was more than twice as large as any which
had previously been held for planting purposes at the end of a season
and it further appeared that more seed had been brought into the mill
since the election. There was uncontroverted evidence that the day
and night superintendents were unaware oil February 14 and 15 that
the shut-down was to be for the season rather than for the week end.
Regardless of the foregoing circumstances and assuming that the
shut-down was bona fide " and ended the season, we agree with the
Union that the employees laid off on that occasion were temporarily
laid off and therefore eligible to vote. There is undisputed evidence
that the Company has always in the past expected its employees to
return to work the following season. At the end of a season the Com-
pany makes a practice of lending money to employees and collecting
the debts when the employees return to work several months later.
The Company admits that following the shut-down it loaned money to
several of the 28 employees allegedly discharged. The manager of the
mill testified that at the beginning of the new season the Company
invariably contacts individuals who worked for the Company during
the previous season and that new employees were sought only if it
was impossible to staff the mill with personnel previously employed
by the Company. The Company does not deny evidence introduced
by the Union that 17 of its employees perform duties which require
experience. Pay rolls introduced into evidence at the hearing for the
week of highest employment in each of the last 3 seasons of the Com-
pany's operations reveal that the full complement of employees work-
ing at any one time was usually 43 men ; that during the 1945-1946
season, 22 of the Company's employees were men with 2 or more years'
previous service in the oil mill.
All the evidence clearly points to the fact that the employees con-
stitute a well-defined group which return from year to year; that the
shut-down did not render the employees in question permanently
discharged. Oil the basis of the Company's own admissions regarding
its practice in prior years, we conclude as we have in similar cases in-
volving seasonal workers,10 that these employees are only temporarily
laid-off and therefore have a sufficient interest in the future subjects of
9 On March 15, 1945 , the Union filed a petition identical to the one in the instant case
On June 11, 1945, the case was closed for the reason that the Company had "temporarily
suspended operations"
Matter of Lamar Cotton Oil Company , 16-R-1230
10 Matter of Syracuse Ornamental Company, 20 N L R B 877 : Matter of Espey Manu-
facturing Company, Inc, 26 N L R B 910 , Matter of Armour & Company, 32 N L R B
422 Matter of American Oil Company, 33 N L R B 323, Matter of Philadelphia Dairy
Products Co, Inc, 36 N L R B 737, Matter of United Fuel Gas Company, 50 N L R B.
22, Matter of Sterling Sugai s The, 65 N L R B 1118
LAMAR COTTON OIL COMPANY 1391
collective bargaining to justify giving them a voice in the selection of
a bargaining agent for the next season's operations. We shall accord-
ingly overrule the challenges to the 28 ballots.
Inasmuch as we have found that the 28 voters whose ballots were
challenged were eligible to vote in the election, we shall direct that
the 28 challenged ballots be opened and counted.
DIRECTION
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, Sections 9 and 10, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Lamar Cotton Oil
Company, the Regional Director for the Sixteenth Region shall, pursu-
ant to said Rules and Regulations, within ten (10) days from the date
of this Direction, open and count the 28 challenged ballots, and shall
therefore prepare and cause to be served upon the parties a Supple-
mental Tally of Ballots including therein the count of the challenged
ballots.