The Kelly Co.

National Labor Relations Board - Board Decisions

Aug 16, 1941

34 N.L.R.B. 325 (N.L.R.B. 1941)

In the Matter of THE KELLY COMPANY and WAREHOUSEMEN'S &
DISTRIBUTION WORKERS' UNION, LOCAL 2-9 (C. I. 0.) and WARE-
HOUSE EMPLOYEES' UNION, LOCAL 197, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN R HELPERS OF
AMERICA (A. F. OF L.) - y
Case No. RE 27. Decided El ugust 16,19111
Jurisdiction : nut products manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives; eligibility to be determined by pay
roll preceding shut-down resulting from strike called by one of the organiza-
tions involved ; election necessary.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, including warehouse employees, truckers, watchman, and fireman,
but excluding executives and supervisory and office employees.
Definitions
Individuals who operate their own trucks; who apparently have con-
tracts with other concerns, are not on the Company's pay roll, being paid
at a fixed fee per hundred weight; and in whose behalf no social security
tax deductions nor provisions for unemployment insurance or workmen's
'compensation are made held to be independent contractors.
Individuals operating their own trucks are employees of the Company
despite absence of social security tax deductions or unemployment insurance
or workmen's compensation payments, where they are subject to the Com-
pany's direction and c;Ill; are on the pay roll of the Company; and receive
Christmas gifts and vacation privileges.
Haun/turst, Ivigl'is, Sharp and Gull, by Messrs. H. A. Hauxhwrst
and Richard Inglis, Jr., of Cleveland, Ohio, for the Company.
Mr. Edward S. Crudele, of Cleveland, Ohio, for the C. I. O.
Mr. Charles P. lllayoh, of Cleveland, Ohio, for the A. F. of L.
Mr. Marvin C. Wahl, of counsel to the Board.
DECISION
AND
DIRECTION OF, ELECTION
STATEMENT OF T11E CASE
On July 8, 1941, The Kelly Company,' Cleveland, Ohio, herein
called the Company, filed -,i nth the Regional Director for the Eighth
' At the hearing the name of the Company was amended to read as appears herein.
34N L.R,B,No 56 ,
-15120)-42-N of 34-22 325
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region (Cleveland, Ohio) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
the Company 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 July 14, 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 Relations 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 July 15, 1941, the Regional Director issued a notice
of hearing, copies of which were duly served upon the Company,
Warehousemen's & Distribution Workers' Union, Local 2-9 (C. I. 0.),
herein called the C. I. 0., and Warehouse Employees' Union, Local
197, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America (A. F. of L.), herein called the A. F. L.,2
labor organizations claiming to represent employees directly affected
by the investigation.
Pursuant to notice, a hearing was held on July 21, 1941, at Cleve-
land, Ohio, before Max W. Johnstone, the Trial Examiner duly
designated by the Chief Trial Examiner. The Company, the A. F.
L., and the C. I. O. 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, 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
I. THE BUSINESS OF THE COMPANY
The Kelly Company, an Ohio corporation, is engaged in the manu-
facture, processing, and sale of nuts and nut products. In 1940,
the Company purchased nuts valued at approximately $800,000, 70
per cent of which came from outside the State of Ohio. In the
same period, the Company's sales approximated $1,200,000, about
55 per cent of which were shipped outside the State of Ohio. The
Company concedes that it is engaged in commerce within the
means of the Act.
2 The names of both unions were correctly set forth at the hearing as appears herein
THE} KELLY COMPANY 327
II. THE ORGANIZATIONS INVOLVED
Warehousemen's & Distribution Workers' Union, Local 2-9, is a
labor organization affiliated with the Congress of Industrial Organi-
zations, admitting to membership employees of the Company.
Warehouse Employees' Union, Local 197, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America
is a labor organization affiliated with the American Federation of
Labor. It admits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 26 , 1941, the C . I. O. by. letter advised the Company
that it represented a majority of the Company 's employees and
requested a meeting for the purpose of negotiating a collective
bargaining agreement . On June 30 , 1941, the Company responded
that it would meet with the C. I. O. on July 2, 1941. On July 1,
1941 , an A. F . L. representative requested a meeting with the Com-
pany to negotiate an agreement . The Company conferred with the
C. I. O. on July 2, 1941, and on July 3, 1941 , the A. F. L. called a
strike at the Company 's plant.3
A statement by a Field Examiner, introduced at the hearing, and
a statement in the record by the Trial Examiner , show that the
C. I. O. and the A. F. L., respectively , represent a substantial
number of employees in the unit which each alleges to be
appropriate.4
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
relation to trade, traffic, and commerce among the several States
8 It appears that the strike was still in effect at the date of the hearing
4 The Field Examiner ' s statement shows that the C I. O. submitted 47 membership
application cards dated between June 1 and June 30, 1941, 46 of the signatures corre-
sponding to names on the Company 's July 9, 1941, pay roll. All signatures appeared to
be genuine with the exception of 5 which were signed by an "X " The A. F L. gave no
proof of representation to the Field Examiner , but at the hearing submitted 42 application
cards, 38 of which were dated after July 1, 1941, and 4 of which were undated. The
A. F L. also submitted 41 affidavits by employees of the Company designating the A. F. L.
as,exclusive bargaining agent. The 'record is not clear , but it would seem that these affi-
davits were executed by the same employees who signed the A. F. L.'s application cards.
Forty-one of the affidavits were dated July 14, 1941 , and one was dated July 19, 1941.
There are 90 employees on the Company ' s July 9, 1941 , pay roll.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The C. I. 0. contends that all production and maintenance em-
ployees, warehouse employees, and the watchman of the Company,
but excluding executives, supervisory employees, truckers, the fire-
man, and office employees, constitute an appropriate unit. The
A. F. L. claims that all employees, except the executives of the
Company, should be included within the unit. The Company takes
no position concerning the appropriate unit.
81111pervisory employees: ' Grover Kugler, J' enemy Sicilian, and
M11ary Cheslukowski are designated supervisors by the Company.
They are the 3 employees who have had the longest service with the
Company in their respective departments. The executive office ad-
vises them of the Company's needs or requirements, and they are
required to assign and distribute the work. However, they also do
actual work along with the other employees in their departments.
Kugler handles the routine of the shipping department and is in
close touch with the office with regard to shipments. The employees
consider him to be the foreman of the shipping department and in
control of that branch of the work. While he does not have
authority to hire or discharge, he occasionally recommends the hire
or discharge of individuals. Siciliano is considered the foreman of
the salting and roasting department and directs the work in that
department. He does not have the power to hire or discharge, but
may recommend such action. Cheslukowski is considered the floor-
lady of the girls in the package and peanut butter department.
She assigns work and gets out orders. She cannot discharge but
may, and does, hire. We find that the duties of Kugler, Siciliano,
and Cheslukowski are supervisory in nature and that they should
be excluded from the unit.
Truckers: Emil Mix owns and operates his, own truck upon which
appears the Company's name. License plates are obtained in his
name, and he carries and pays the premiums for joint liability
insurance for the benefit of the Company and himself. He is always
subject to the direction of the Company with respect to deliveries.
He is paid a fixed weekly salary, regardless of the tonnage carried
or the time spent in hauling, and pays all his own expenses. He
receives a vacation and a gift from the Company at Christmas time.
While the. Company does not make social security deductions from
his salary, nor pay unemployment insurance or workmen's compen-
sation for Emil Mix, his name appears on the Company's pay roll.
Henry Mix also operates his own truck, which does not bear any
THE KELLY COMPANY 329
name. He is paid weekly on the basis of a fixed minimum per stop
plus a fixed amount per hundredweight. His compensation is com-
puted from a report which he submits to the Company at the end of
each week, setting forth the number of stops made and the weight
carried. He is subject to the Company's call at all times and covers
certain outlying district deliveries. He also receives a Christmas
gift. In his case, too, the Company does not make social security
tax deductions from his compensation, nor does it pay unemployment
insurance taxes or workmen's compensation for him, although his
name appears on the Company's payroll. Welker Brothers. There
are three Welker brothers, partners, who own their own trucks.
The Company's name appears on two of the trucks but not on the
others. They do heavy trucking, hauling carload lots from the
railroad to the Company's shipping dock and outbound railroad
shipments to the railroad yards. They are paid weekly at a fixed
fee per hundredweight. They are not on the Company's pay roll
and apparently have contracts with other concerns. No deduction
is made for social security taxes, nor does the Company pay unem-
ployment insurance taxes or workmen's compensation for them.
These truckers are members of a union.
We find that Emil Mix and Henry Mix are employees within the
meaning of the Act and should be included within the unit herein-
after found to be appropriate .5 We find that the Welker brothers are
independent contractors and should be excluded from the unit.'
The fireman: The fireman's duties consist of firing the boiler and
keeping up steam for warmth and operations of the drier. His work
is necessary for the continuous operation of the plant. It appears
that the C. I. O. admits firemen to membership in its organization,
but includes them only where the other employees in the proposed
unit want them included. Here the C. I. O. wishes to exclude the
fireman and the A. F. L. to include him. We find that the fireman's
duties are allied with those of other production and maintenance
employees and that he should be included within the appropriate unit.
Office employees: There are 9 employees who perform general office
work. Each has his own desk, in the office department which is
separated from the rest of the plant. While some of these employees
spend more time than others outside their office and in the factory,-
the record is clear that a far greater proportion of their time is
devoted to office duties. The evidence shows that the A. F. L. has
included them in units where they were at least partially engaged in
production work. The C. I. O. does not admit office employees to
6Matter of Seattle Post -Intellrgencer Department of Ilemst Publications , Inc. and
Seattle Newspaper (mold, Local No 82,9N L. R. 13 1262
'Matter of Federal Iced Cold Storage Company and Produce Drivers and S,nployees
union, Local No 630, 18 N. L R I: 161
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership. In view of the difference in duties between the office
employees and the production maintenance employees, we find that
the office employees are not a cohesive part of the unit and should be
excluded therefrom.7
We find that all production and maintenance employees, including
warehouse employees, truckers Emil Mix and Henry Mix, the watch-
man, and the fireman of the Company but excluding executives 'and
supervisory and office employees, constitute a unit appropriate for
the purposes of collective bargaining and that such unit will insure
to employees of the Company the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate the
policies of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. The
Company suggests that the July 9, 1941, pay roll, which is the last
pay roll preceding the date of the hearing be used to determine
eligibility to vote.8 The C. I. O. requests that the pay roll of July
3, 1941, the last day on which work was done in the plant, be used
to determine eligibility to vote. The A. F. L. takes no position as to
the proper pay-roll date. Under the circumstances, we shall direct
that those eligible to vote in the election shall be the employees of
the Company within the appropriate unit whose names appear on the
Company's July 3, 1941, pay roll, subject to such limitations and
additions as are set forth in the Direction hereinafter.
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 The Kelly Company, Cleveland, Ohio,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
2. All production and maintenance employees including warehouse
employees, truckers Emil Mix and Henry Mix, the watchman, and
the fireman of the Company, but excluding executives and super-
7 Matter of Birdsboro Steel Foundry d Machine Co. and Steel Workers Organizing Com-
mrottee, C I 0 , 32 N L R B. 107, and cases therein cited See also, Matter of Unaon.
Switch and Signal Company and United Electrical, Radio and Machine Workers of Amer-
ica, Local 610, 30 N L. R. B 922
8 While the record is not clear , it appears that no work was done at the plant after
July 3, the date on which the A F. L. called the strike However , on July 9, the Com-
pany paid all employees one day 's wages and prepared a pay roll for that purpose.
TIE KELLY COMPANY 331
visory and office employees, 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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with The Kelly Company, Cleveland, Ohio, 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 Director for the Eighth Region,
acting in this matter as agent for the National Labor Relations
Board, and subject to Article III, Section 9, of said Rules and Regu-
lations, among all production and maintenance employees employed
by the Company on July 3, 1941, including warehouse employees,,
truckers Emil Mix and Henry Mix, the watchman, and the fireman
of the Company, and employees who were ill or on vacation or in the
active military service or training of the United States, or tem-
porarily laid off, but excluding executives and supervisory and office
employees, and employees who have since quit or been discharged for
cause, to determine whether they desire to be represented by Ware-
housemen's & Distribution Workers' Union, Local 2-9 (C. 1. 0.) or
Warehouse Employees' Union, Local 197, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America
(A. F. of L.), for the purposes of collective bargaining, or by
neither.
MR. EDWIN S. SMITH took no part in the consideration of the above
Decision and Direction of Election.