The Ellis Canning Co.

National Labor Relations Board - Board Decisions

Apr 16, 1946

67 N.L.R.B. 384 (N.L.R.B. 1946)

In the Matter of N . L. KOIN AND D. M. KoIN, A PARTNERSHIP D/B/A
THE ELLIS CANNING COMPANY and WAREHOUSING , PROCESSING AND
DISTRIBUTING UNION, No. 217, AFFILIATED WITH INTERNATIONAL
LONGSHOREMEN 'S AND WAREHOUSEMEN'S UNION, C. I. O.
Case No. 17-R-1339.-Decided April 16, 1946
Mr. Ira C. Rothgerber, of Denver, Colo., for the Company.
Mr. Louis Levin and Mrs. Eunice Dolan, of Denver, Colo., for the
I. L. W. U.
Mr. Philip flornbein, Jr., of Denver, Colo., for the Teamsters.
Mr. Harry R. Ehrlich, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by Warehousing, Processing
and Distributing Union, Local No. 217, affiliated with the Interna-
tional Longshoremen's and Warehousemen's Union, C. I. O., herein
called I. L. W. U., alleging that a question affecting commerce had
arisen concerning the representation of employees of N. L. Koin and
D. Al. Koin, a partnership d/b/a The Ellis Canning Company, Denver,
Colorado, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Daniel J. Leary, Trial Examiner. The hearing was held at Denver,
Colorado, on March 12 and 13, 1946. The Company, the I. L. W. U.,
and Produce Drivers, Helpers and Warehousemen, Local Union No.
452 of the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, affiliated with the A. F. of L., here-
in called the Teamsters, 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 made at the hearing are free from prejudicial
error and are hereby affirmed. At the hearing, the Teamsters moved to
dismiss the petition for lack of a question concerning representation.
' At the hearing the name of the Company was amended as designated above.
67 N. L. R B., No. 54.
384
THE ELLIS CANNING COMPANY 385
The Trial Examiner referred this motion to the Board. For reasons
stated hereinafter , the motion is hereby denied. All parties were
afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Ellis Canning Company is a partnership consisting of N. L.
Koin, and D. M. Loin, existing by virtue of and pursuant to the laws
of the State of Colorado, with its principal office and plant in Den-
ver, Colorado. The Company is engaged in the business of proc-
essing and producing foodstuffs. During the year 1945, the Com-
pany bought produce and materials of an approximate value in excess
of $500,000, approximately 70 percent of which was produced and
transported to it from points outside the State of Colorado. Dur-
ing the same period, approximately 60 percent of the finished prod
acts of the Company was sold and transported to points outside the
State of Colorado.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Warehousing, Processing and Distributing Union, No. 217, is a
labor organization , affiliated with International Longshoremen's and
Warehousemen 's Union, C. I. 0., admitting to membership employees
of the Company.
Produce Drivers, Helpers and Warehousemen, Local Union No.
452 of the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , is a labor organization , affiliated
with the American Federation of Labor, admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On January 21, 1946, the I. L. W. U. notified the Company by letter
that it represented a majority of its employees and requested a meet-
ing for the purposes of collective bargaining , and on the same
date filed its petition herein . The Company did not reply to the
I. L. W. U.'s request.
Since December 16, 1941, the Teamsters has had a written bar-
gaining contract with the Company covering its production and
maintenance employees . The last contract provided that it should
be effective from July 1, 1945 , to July 1, 1946 , and from year to year
692148-46-vol. 67-26
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter unless terminated in writing by either party upon 45 days'
notice prior to its yearly expiration date. The Teamsters contends
that the foregoing contract is a bar to a present determination of
representatives. The I. L. W. U. contends that the contract is not
a bar because the Teamsters is no longer functioning effectively as
the bargaining representative of these employees.
Although there may be a considerable group of employees who are
dissatisfied with the representation accorded them by the Teamsters,
the record discloses that the Teamsters has not ceased to function as
the bargaining representative of the Company's employees. It has
taken up grievances with the Company and secured wage adjust-
ments for the employees. Although the Teamsters agreed not to
invoke the closed-shop provision of its contract for the period of the
war, it appears that it did so because of the labor shortage and its
pledge of non-stoppage of work. We are of the opinion that the
Teamsters is still a functioning labor organization capable of admin-
istering its contracts.2 However, inasmuch as the contract may be
terminated in less than 2 months upon notice by either party thereto,
we find that it is not a bar to a determination of representatives within
the next thirty (30) days pursuant to our usual Direction of Election.
However, any certification of representatives which we may issue as
a result of the election shall be for the purpose of designating a rep-
resentative to negotiate a new contract to succeed the contract now in
effect.'
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the I. L. W. U. represents a substantial number
of employees in the unit hereinafter found appropriate .4
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 parties are in substantial agreement that the appropriate unit
should consist of all production and mainteBance employees of the
Company, excluding office and clerical employees, and all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively rec-
2 See Matter of Douglas Public Service Corporation , 62 N. L. R. B. 651 ; Matter of
White Brothers Smelting Corporation, 61 N L R. B 340; and Matter of Creamer &
Dunlap, 60 N . L. R. B. 437.
3 See Matter of Peerless Stages , Inc., 62 N. L R B. 1514, and Matter of Joseph Dyson c6
Sons , Inc., 60 N L. R. B. 867
4 The Field Examiner reported that the I L W. U. submitted 84 cards , bearing the
names of 69 employees , listed on the Company's pay roll of January 23, 1946. At the
hearing, the I. L. W. U. submitted 4 cards bearing the names of 4 employees hired since
January 23 , 1946. The Teamsters relied upon its contract as evidence of its interest.
There are approximately 95 employees in the appropriate unit.
THE ELLIS CANNING COMPANY 387
ommend such action. The parties disagree, however, as to janitors,
firemen, watchmen, and stationary engineers. The I. L. W. U. would
include these employees with the production and maintenance em-
ployees. The Teamsters would exclude them on the ground that they
have not been part of the production and maintenance unit estab-
lished by the contract between itself and the Company.
Although the record does not disclose that the disputed employees
have interests or duties which would of necessity prevent their inclu-
sion in the present bargaining unit, in the absence of any compelling
circumstances warranting a departure therefrom, we shall adhere to
our usual practice and not disturb the contract unit established as
the result of collective bargaining between the Company and the
Teamsters. Accordingly, we shall exclude janitors, firemen, watch-
men, and stationary engineers from the unit involved in this proceed-
ing. Our finding in this respect, however, shall not preclude a later
determination, based upon a new petition and a sufficient showing of
representation, that these employees may be offered an opportunity
to vote as to their inclusion in the larger unit herein found appro-
priate.5
We find that all production and maintenance employees - of the
Company at its Denver, Colorado, plant, excluding office and clerical
employees, janitors, firemen, watchmen, stationary engineers, and all
or any other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
Inasmuch as the plant is not now operating, the I. L. W. U. requests
that in determining eligibility to vote the Board use the company
pay roll for the week ending February 13, 1946, the last week in which
the plant was in full operation. However, all employees are deemed
by the Company to be only temporarily laid off and, therefore, under
the Board's customary practice, retain their voting rights. Accord-
ingly, we see no reason to depart from our usual practice in this regard.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
See Matter of Petersen & Lytle, 60 N. L. R. B. 1070 , and subsequent cases.
Including beef-boners who it appears perform pioduction duties, and excluding out-of-
State truck drivers whose duties and interests, we are of the opinion, differ substantially
from those of the production and maintenance employees
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 9, of National Labor Rela-
tions 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 N. L. Koin and
D. M. Koin, a partnership d/b/a The Ellis Canning Company , Denver,
Colorado, 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 Direc-
tor for the Seventeenth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Sections
10 and 11, of said Rules and Regulations , among 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 employees who did not work during said pay-
roll period because they were ill or on vacation or temporarily laid off,
and including employees in the armed forces of the United States who
present themselves in person at the polls , but excluding those em-
ployees who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election , to deter-
mine whether they desire to be represented by Warehousing , Process-
ing and Distributing Union, No. 217, affiliated with the International
Longshoremen's and Warehousemen's Union, C. I. 0., or by Produce
Drivers, Helpers and Warehousemen, Local Union No. 452 of the
International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , affiliated with the A. F . of L., for the purposes
of collective bargaining, or by neither.