De Soto Creamery & Produce Co.

In the Matter of DE SOTO CREAMERY & PRODUCE COMPANY, MIN- NEAPOLIS , MINNESOTA and AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 615 , A. F. L. Case No. R-348 3.-Decided March 9, 194,2 Jurisdiction : farm products and poultry processing and packing industry. Investigation and Certification of Representatives : question concerning repre- sentation held to exist where Company `refuses to accord union recognition, where there has been a substantial lapse of time since a State election the results of which were inconclusive, and where the union has shown a substantial repre- sentation among the employees in the appropriate unit; election necessary. Unit Appropriate for Collective Bargaining : all female employees in the egg- breaking and poultry departments, excluding foremen and supervisory employees; no dispute as to; unit comprised of female employees in two depart- ments held to constitute an appropriate unit where five men employed in the same departments, and employees in other departments, are already covered by contracts negotiated by two other unions. Mr. Samuel J. Levy, of Minneapolis, Minn., for the Company. Mr. Fred Babekuhl, of Minneapolis, Minn., for-the Union. Mr. George J. Hadjinoff, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 14, 1941, Amalgamated Meat Cutters & Butcher Workmen of North America, Local 615, affiliated with A. F. L., herein called the Union, filed with the Regional Director for the Eighteenth Region (Minneapolis, Minnesota) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of De Soto Creamery & Produce Company, Minneapolis, Minnesota, herein called, the Company, and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 16, 1942, 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 39 N. L. R. B., No. 109. 601 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 22, 1942, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to notice,' a hearing was held on January 29, 1942, before Guy Farmer, the Trial Examiner duly designated by the Chief Trial Examiner . The Union appeared and participated in the hear- ing. The Company entered a special appearance for the purpose of raising an issue as to the jurisdiction of the Board. Full opportunity to be heard , to examine and cross-examine witnesses , and to intro- duce evidence bearing on the issues was afforded all parties. At the opening of the hearing the Company moved for dismissal of the petition on the ground that the Board has no jurisdiction inasmuch as the matter of representation has been fully determined by the Division of Conciliation of the State of Minnesota pursuant to the provisions of the Minnesota Labor Relations Act, and that under the said State Act this matter cannot be taken up again for a period of 1 year. The Trial Examiner referred the motion to the Board. Since we find below that there is a question concerning rep- resentation which affects commerce, we find that the Board has jurisdiction to proceed with its investigation of this question, and we therefore deny the Company's motion to dismiss the petition. Upon, the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY De Soto Creamery & Produce Company, a Minnesota corporation, with a plant at Minneapolis, Minnesota, is engaged in buying, proc- essing, packing, and selling farm products, poultry and other similar products. During the 12-month period ending October 31, 1941, the Company purchased materials and products valued at approxi- mately $922,300.58. Approximately 10 percent of such materials and products were purchased from points outside the State of Minne- sota. During the same period , the Company sold products valued at approximately $1,084,671 . 19. Approximately 25 percent in value of such products were sold outside the State of Minnesota. II. THE ORGANIZATION INVOLVED Amalgamated Meat Cutters & Butcher Workmen of North America, Local 615, is a labor organization affiliated with the American Fed- eration of Labor, admitting to membership employees of the Company. DE SOTO CREAMERY & PRODUCE COMPANY 603 III. THE QUESTION CONCERNING REPRESENTATION - In and after August 1941, the Union asked the Company to recog- nize it as representative of female employees in the egg-breaking and poultry departments. The Company denied the request until the Union was certified as such representative. On September 30, 1941, the Company filed with the Division of Conciliation of the State of Minnesota a request for investigation and certification of representa- tives for the above employees. After tin investigation and hearing the State Labor Conciliator ordered an election to be held October 28, 1941, with the eligibility date fixed as of April 15, 1941. The Union took exception to this ruling and asked for a new hearing on the ground that the eligibility date specified in the order was too remote and that a "more equitable date" should be fixed. A second hearing was accordingly held and an election ordered for November 12, 1941, to be participated in by "all eligible employees" who were working on October 15, 1941. A list of eligible employees was prepared by the State Division of Conciliation. This list, however, did not include all the employees in the unit and on the pay roll' of the ' Company as of October 15, 1941, but only those employed on October 1, 1941, apparently on the theory that persons employed after October 1, were probationary employees and therefore ineligible under the State rule.' The Union duly objected to the list of eligible employees but without success. On November 12, 1941, the election was held. Thirty-eight employees participated in the election. Seventeen votes were cast for the Union, and twenty-one votes against the Union. The State Labor Conciliator accordingly certified that the Union was not the exclusive collective bargaining representative. The Union filed its objections, alleging among other things that a "large number of eligible employees were denied their proper elective franchise." These objections were dismissed by the State Labor Conciliator on the ground that they did not raise' a "substantial and material issue." On or about Novem- ber 14, 1941, the Union filed its petition with the Board for an investi- gation and certification of representatives. The Regional Director's statement introduced into evidence at the hearing shows that the Union has substantial representation among the employees in the appropriate unit and that as of November 15, 1941, the -Company employed 78 persons in such unit.2 In view of the substantial lapse of time since the State election, the fact that this election was inconclusive, and upon the entire I Of 78 employees in the appropriate unit and on the pay roll of the Company, 35 were apparently con- sidered to be ineligible under this rule. 2 The Union submitted 58 application cards to the Regional Director who reported that 15 were dated in August 1941, 5 were dated in October 1941, and 38 were dated in November 1941 The Regional Director reported that all the signatures were apparently genuine and that 52 were the names of persons on the Company's pay roll of November 15, 1941, which contains the names of 78 persons. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record, we find that a question has arisen concerning the representa- tion of employees of the Company.' 1V. 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union petitions for a unit composed of all female employees' in the egg-breaking and poultry departments, excluding foremen and supervisory employees. The Company does not dispute the appro- priateness of this unit; it is the same unit which the Company alleged to be appropriate in its petition for certification filed with the State Division of Conciliation. In addition to 'the employees claimed by the Union, the Company employs 5 men in the egg-breaking and poultry departments, and a number of employees in other departments and outside men. Two other labor organizations have organized these employees and have contracts with the Company covering them. Since these employees are already covered by contract, and the employees desired by the Union are not covered by contract, we find that the unit for which the Union has petitioned is appropriate. We find that all female employees in the egg-breaking and poultry departments, excluding foremen and supervisory employees, consti- tute 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 will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES - We find that the question which has arisen concerning representa- tion can best be resolved by, and we shall accordingly direct, an election by secret ballot, among, the employees in the appropriate unit 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. 3 Of. Matter of Chrysler Corporation and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, 37 N L R. B 877, Matter of New York Central Iron Works and Inter- national Association of Bridge, Structural and Ornamental Iron Workers, 37 N L R. B. 894, Matter of, Westinghouse Electric & Manufacturing Company and International Association of Machinists, 38 N. L. R B. 404. DE SOTO CREAMERY & PRODUCE COMPANY 605 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 De Soto Creamery & Produce Company, Minneapolis , Minnesota, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All female employees in the egg-breaking and poultry depart- ments, excluding foremen and supervisory employees, constitute 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 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 bar- gaining with De Soto Creamery & Produce Company, Minneapolis, Minnesota, 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 of 'Election , under the direction and supervision of the Regional Director for the Eighteenth 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 all female employees in the egg -breaking and poultry departments of the plant of De Soto Creamery & Produce Company at Minneapolis, Minnesota , 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, but excluding supervisory employees and foremen , and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Amalgamated Meat Cutters & Butcher Workmen of North America, Local 615 , affiliated with the American Federation of Labor, for the purposes of collective bargaining.