Frank Pilley & Sons, Inc.

6 In the Matter of FRANK PH.LEY & SONS, INC. and LOCAL UNION #773 OF TITE INTERNATIONAL UNION OF OPERATING ENGINEERS , AFFILIATED WITH THE AMERICAN FEDERATION or LABOR Case No. R-48241.-Decided February 22, 1943 Jurisdiction : poultry and dairy products selling industry. Investigation and Certification of Representatives : existence of question: recognition' refused because of existing contract , covering' employees yin- unit sought; contract held no bar when petitioner notified company of its claim to representation prior to automatic renewal date ; election necessary. Unit Appropriate for Collective Bargaining : election directed among operating engineers at one plant of company to determine whether they desired a sepa- rate bargaining unit or remain part of the industrial unit presently embracing, them. - Mr. Byron L. Sifford, of Sioux City, Iowa, for the Company. Mr. Richard R. Bates, of Sioux City, Iowa, for the Engineers. Mr.,John Davidbhik; of Sioux' City; Iowa, for the P. W. O. C. Mr. William C. Baisinger, Jr., of counsel to 'the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Local Union #773 of The International Union of Operating Engineers, affiliated with, the-American Federa- tion of Labor, herein called the Engineers,,,alleging,that a question, affecting commerce had arisen concerning the representation 'of em- ployees of Frank Pilley & Sons, Inc., Omaha, Nebraska, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Stephen M. Reynolds, Trial Examiner. The hearing was held at Sioux City, Iowa, on Feb- ruary 2-, 1943. The Company, the. Engineers, and United Packing- house Workers of America, Local #135, P. W. O. C.,.affiliated with the C. I. 0., herein called the P. W. O. C., appeared, participated, and were afforded full opportunity to be heard, to examine and cross- examine',witnesses, and. to:introdilce, eviden _ ce,.bearing -on the, issues. 47 N. L. R. B, No 107. 863 864 DEIGISIIO!N''S OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF'THE COMPANY Frank Pilley & Sons, Inc., is a Delaware corporation, engaged in the business of processing, selling, and distributing poultry, eggs, and dairy products. The Company has its general offices in Omaha, Nebraska, and operates branch plants at Norfolk, Nebraska, Tracy, Minnesota, Springfield, Missouri, and Sioux City, Iowa. During the fiscal year from March 1, 1941, to February 28, 1942, the Sioux City, Iowa, plant of the Company, which is the only plant involved in this proceeding, purchased raw materials consisting of poultry, eggs, cream, and milk, valued at $3,728,000, of which approximately 25 percent was transported to the Sioux City plant from points outside the State of Iowa. During the same period, the total sales of the Sioux City plant amounted to $3,802,000, of which approximately 94 .percent. was shipped from the plant to purchasers outside the State of Iowa. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED 0 Local Union .#773 of The International Union of Operating En- gineers is a labor organization, affiliated with the American Federa- tion of Labor, admitting to membership employees of the Company. United Packinghouse Workers of America, Local #135, P. W. O. C., is a labor organization, affiliated with the Congress of Industrial Organizations, admitting to membership employees, of, the ,Company. III. THE QUESTION CONCERNING REPRESENTATION' i On or about October 31;1942, the Engineers requested the'Companyi' to recognize it as the' bargaining -representative of the'- operating! engineers employed at the Sioux City plant. The Company refused •toi grant such recognition on the ground that it,has a collective bargain- ing contract with the-P. W., OX.' covering all production and main- tenance employees of the-Company, including the operating, engineers. The contract, by its terms, became; effective ;as of June 16; 1941;iand1 provided that it, should remain in effect until, January 15, 1943, and ",from, year, to, year thereafter ;unless notice in writing of k desire to' amend or terminate said agreement' is. given by 'either party to :the' other at least 30 days before the expiration date." - `Neither' party gave notice of a desire to amend or terminate the contract prior to I -FRANK PILLEY & SONS, INC. 865 January 15, 1943. Since the Engineers made its demand and filed its petition herein more than 30 days prior to the termination date, however, we find that the contract is not a bar to a determination of representatives.' A statement of the Regional Director, introduced in evidence at the hearing, indicates that the Engineers represents a substantial number of employees in the unit which it alleges is appropriate.2 We find that a question affecting commnierce 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 DETERMINATION OF REPRESENTATIVES The Engineers contends that the operating engineers employed by the Company at the Sioux City, Iowa, plant comprise an appropriate bargaining unit. The P. W. O. C., on the other hand, argues that the history of collective bargaining on a plant-wide basis militates against establishing a separate unit for the operating engineers. The Com- pany takes no position with respect to the appropriate unit. The record discloses a history of collective bargaining between the Company and the P. W. O. C. on a plant-wide basis since April 30, 1941, at which time the P. W. O. C. won a consent election among the-Company's production and maintenance employees, including the operating engineers. On the other hand, it is undisputed that all the operating engineers employed at the Sioux City plant 3 have been members of the Engineers since on or before April 25, 1941, and that none of them participated in the consent election of April 30, 1941. In addition, the operating engineers work in a building - which is separate from other plant operations and comprise the staff of the Plant's powerhouse which generates the power for the entire plant. "Their work is of a skilled and technical nature and each operating engineer is required by municipal ordinance to -be licensed. Under the circumstances, we are of the opinion that the operating engineers may properly constitute a separate bargaining unit or be included in a single unit with the production and maintenance em- ployees. Inasmuch as the considerations are evenly balanced, we shall, permit the desires of these employees to be controlling in our deter- mination of the type of unit through which they shall bargain. Ac' 'See Matter of Pressed Steel Car Company, Ine and Steel lVoi1crs O;ganizwiy Coia- mittec, 41 N. L. R B. 6. 2 The report of the Regional Director states that the Engineers submitted to him its union ledger which contains the names of its dues-paying members ; that four of the names appearing thereon are the names of persons whose names appear on the Company's pay roll of January 21, 1943, which pay roll contains the names of four persons in the alleged appropi late unit 3 The Company employed four operating engineers at the Sioux City plant as of the date of the hearing. 313024-43-vol 47-35 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cordingly, we shall make no final determination of the appropriate unit at this time, but shall direct an election among the operating en- gineers, employed by the Company to determine whether or not they desire to be represented by Local Union #773 of The International Union of` Operating Engineers, affiliated with the American Federa- tion of Labor.' If the ,majority of these employees select the Engineers, they shall constitute a separate unit for bargaining purposes; otherwise, the petition will be dismissed and the operating engineers will remain a part of the industrial unit. The Engineers desires to exclude the supervisor of the power plant from the unit. Inasmuch as he is in charge of the powerhouse and has, supervision over the remaining employees in the proposed unit, we shall exclude him. 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 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby - DIRECTED that, as part of the investigation to ascertain representa- tives for 'the purposes of collective bargaining with the Sioux' City, Iowa, plant of Frank Pilley & Sons, Inc., Omaha, Nebraska, an elec- tion by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Elec- tion, 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 10, of said Rules and Regulations, among the operating engineers who were employed by the Company during the pay-roll period immedi- ately preceding the date of this Direction of Election, including em- ployees who did not work during such pay-roll period because they were ill or on vacation or temporarily laid off, and including em- ployees in the armed forces of the United States who present them- selves in person at the polls, but excluding the powerhouse supervisor and employees *ho have since quit or been discharged for cause, to determine whether or not they desire to be represented by Local ^ Union #773 of The International Union of 'Operating Engineers, affiliated with the American Federation of Labor, for the purposes of col- lective bargaining. 4 We shall not afford the P. W 0 C a place on the ballot , since it stated at the hearing that it did not desire to participate in any election directed among the operating engineers.