Iowa Packing Co.

In the Matter of IOWA PACKING COMPANY and PACKINGHOUSE WORKERS ORGANIZING COMMITTEE , ON BEHALF OF THE UNITED PACKINGHOUSE WORKERS 'OF AMERICA , LOCAL No. .89, AFFILIATED WITH THE C. I. O. Case No. B-44-12.-Decided March 19,043 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES 'On November 23, 1942, the National Labor Relations Board, herein .called the Board, issued its Decision and Direction of Election in this proceeding. Pursuant to the Direction of Election, an election by secret ballot was conducted on December 18, 1942, under the direction and supervision of the Regional Director for the Eighteenth Region (Minneapolis, Miinmesotti). On December 19, 1942, the Regional Di- rector, acting pursuant to ' Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly :served upon the parties his Election Report. As to- the balloting and its results, the Regional Director reported as follows: I Approximate number of eligible voters ---- ------------------ 1,205 Total ballots cast- ----------------------------------------- 956 Total ballots challenged ----------------------------------- 44 Total void ballots ----------------------------------------- - 3 Total blank ballots-------- ----------------------------------------- I Total valid votes counted ---------------------------------- 908 Votes cast for Packinghouse Workers Organizing Committee, C I. 0 -------------------------------------------------- 480 Votes cast ' for Local Independent Union of . Packinghouse Wo'•kers------------------------------------------------- 418 Votes cast for neither-------------------------------------- 10 On December 24, 1942, Local Independent Union of Packinghouse WTorkers, herein called the Independent, filed its Objections to Conduct, of the Ballot and Election Report.? On December 26, 1942, the Regional Director issued and duly served -upon the parties his Report on Objections. 145, N. L R. B 733. 3 The Company and the P. W. 0. C did not object to the conduct of the election or to the Election Report. 48 N L. R B , No. 43. 305 306 DECISIONS OF NATIONAL LABOR, RELATIONS 'BOARD On January 9, 1943; the Board, having duly considered the mat- ter, referred the proceedings to the Regional Director for the pur- pose of a hearing on the Objections. Pursuant thereto, a hearing upon due notice was held on January 22 and 23, 1943, at Des-Moines, Iowa, before William Strong, Trial Examiner. The Board, Iowa' ,Packing Company,,herein called the Company, the Independent, and the Packinghouse Workers Organizing Committee, on behalf of ,the United Packinghouse Workers of America, Local No. 89, affiliated with the C. I. 0., herein called' the P. W: O. C., appeared, partici- pated, and 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. The Independ- ent and the P. W. O. C. filed' briefs on February 1 and 8, 1943, re- spectively, which the Board has considered. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT In general the Independent contends that, in addition to the 44 persons who cast challenged ballots, a substantial number of other persons were so affected by alleged improprieties in the conduct of the election that they failed to cast-a ballot at all ; that had, such per- sons voted , either the Independent would have obtained a majority of the votes cast or neither union would have obtained a majority.. We shall consider the separate allegations of the_ Independent, and -the evidence pertaining thereto, in order. 1. The Independent alleged that the P . W. O. C. maliciously chal- lenged 25 persons on the ground that they were "instructors"' of new employees ; 3 that the challenge procedure caused considerable" delay in voting ; that the Board's agents failed to rule immediately' on the validity of such challenges ; that such challenged voters returned to the plant and,related their experiences at the polls to other employees .similarly situated; that many employees who were then acting or had acted as "instructors " in the past concluded that it was useless for them to' make the effort and take the time necessary to vote, and for that reason did not vote; that no less than 50 girls on ,the "trimming" floor who were members of the Independent were thus affected and therefore- did not vote . The Independent alleged that older em= ployees have always been used by the Company to instruct new em- ployees; that such "instructors " were ordinary production employees and not within categories excluded by the Board's Direction of Elec- 3 At the hearing on Objections the Independent's attorney stated that the correct figure is 7, not 25 In fact, the P. W. O. C. challenged 6 persons as "instructors" and 1 as "gang leader and instructor." IOWA PACKING COMPANY 307 tion ; that the challenged "instructors" were, therefore, entitled to vote at the election; that the Board's agents should have overruled the challenges at 'the time they were made, thereby removing any doubt or question as to the right of other employees similarly situated -to vote and to have their votes counted. The Independent further alleged that had the votes of the 25 persons who cast challenged bal- lots been counted, and that had the 50 other employees who had failed to vote for the above reasons voted, the Independent would undoubt- edly have received a majority of the votes cast in the' election.: The record shows and we find that the Company has no category of employees specifically denominated "instructor." While most older employees have, at some time in the past, casually shown newer em- ployees the proper manner of performing their duties, at the time of the election only three or four employees had been specifically directed by their superiors to instruct groups of newly hired employees on" the "trimming" floor.4 These so-called "instructors" were paid on a basis different from that used to compute the pay of ordinary production workers, and clearly performed functions which differentiated them from old employees who may from time to time assist new employees. There were no other employees on the "trimming" floor on December 18, 1942, who could reasonably conclude that they were similarly situ- ated to these few "instructors." Very few, if any, other employees were informed on election day of the challenges of persons alleged to be "instructors." There is no credible testimony indicating that any- one actually refrained from voting because 'of self-identification with such challenged voters' work categories. Moreover, the claim of the Independent that the challenges by the P. W. 0. C. were made ma- liciously, in bad faith, and for the purpose of discouraging members of the Independent from voting, is not supported by the' record. Both the P. W. 0. C. and the Independent challenged employees for the rea- son that they- were "instructors," each claiming that the challenges were of individuals rather than a class, and based upon the specific functions of such individuals, which are alleged to have placed them in -supervisory categories excluded by the Board's Direction of Election.5 It is obvious that the Bdard's agents were not derelict in failing to rule on the challenges when made; the Board, and not the agent conducting the election; passes upon the eligibility of challenged voters in the, event the result of the election will be affected by such ballots. We find no merit in the foregoing objection, and it is accordingly overruled. The Company's representative testified that on December 18, 1942, these "instructors" -were Ruby North, Nettie Scoville, and Eleanor Harris. The P. W. O. C. challenged six individuals on the ' ground that they were "instructors," while the Independent challenged five.individuals for-the same reason. ' 521247-43-vol. 48-21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II., The Independent alleged that two employees, Volk and Stotler,, were employed by the Company on November •21, 1942; that they endeavored to vote at said election and' were denied such right; and that if they had been permitted to vote the P. W. 0. C. would not have received a majority in the election.' Vonk and Stotler were hired by the Company on November 21, 1942, but did not start to work until November 23, 1942.7 Nevertheless,, Vonk was permitted to cast a challenged ballot, which is included in the computation of total votes cast. Stotler presented himself at the polling place but left without casting a challenged ballot. Although Stotler testified that he was not only denied the right to cast a regular ballot but also was- denied the right to cast a challenged ballot, we credit the testimony of the Board's agent and find that Stotler did not avail himself of the oppor- tunity to cast a challenged ballot after the challenge procedure had been explained to him. Even assuming that Vonk's ballot was cast in favor of the Independent and that Stotler would have voted for the Independent, the results of the election would not be changed. We find no merit in this objection. III. In its third allegation the Independent alleged that many persons were hired by the Company on or before November 21, 1942; the last day of the pay-roll period used for eligibility purposes, but did not actually begin working until on and after November 23, 1942; that no uniform policy was followed in the election*in allowing such persons to vote, in that some were permitted to cast a ballot while others were denied the right; that in view of such lack of uniformity the election was illegal and void. The record shows that during'the pay-roll period ending on Novem- ber,21, 1942, and particularly on that date, the Company hired a number of new production employees. Before putting them to work, it was necessary to give each one a medical examination as well as other routine examinations. Some of the new employees completed these preliminary matters in time to perform some work on November 21; their names were included on the pay-roll list later prepared by the Company, to be used in the election. The names of 15 of these new employees who did not perform any work on November 21 were in- eluded by error on said pay-roll list. A third group of about 11 ,employees were those hired on November 21, who did not begin to work until November 23, and whose names do not appear on the pay- roll-'list of eligibles. The Independent's complaint is based solely, upon the alleged failure of this latter group to vote in the-election. "Those eligible ' to vote were persons in the unit who were employed during the pay-roll period immediately preceding November 23, 1942 , the date of the Direction of Election. 7,The question , concerning the employees who were hired on November 21, 1942, but who did not actually start working until November 23, 1942, is more fully covered under paragraph III. IOWA PACKING COMPANY. 309 Two days before the election, copies of the pay-roll lists were -furnished to the Independent and the P. W. O. C. The testimony of the Board's agents shows that after the representatives studied the lists, each sought to obtain the exclusion of several employees but no agreement was reached as to a majority of the proposed exclusions. The question of the eligibility of the employees herein .involved was not raised by either union at the time but it was raised for the first time on the day of the election by representatives of the Company, who were assisting in identifying employees at the polls. No claim was made, and the record does not disclose that the Board's agents were apprised during the election that-any similarly situated newly hired employees were named on the pay-roll lists and had voted or would vote that day, and no one called this lack of uniformity to their' attention. The record further shows that some of the employees whose names were on the pay-roll lists did vote challenged ballots while others, similarly situated, did not do so. The Independent's representatives claimed that the procedure of voting a- challenged, bal- lot was not explained in all instances but the testimony of the Board's agent, which -we credit, is to the contrary. Under the circumstances, we find,that any employees not on the eligibility list but who,sought to vote were fully apprised of their privilege to cast challenged ballots. Therefore we conclude that the election should not be set aside on this ground. IV. The fourth allegation of the Independent is that Robert Springer was improperly challenged by the P. W. O. C. and that, as a result of the failure of the Board's agents to rule at the election upon the validity of the challenge, "a false impression" circulated at the plant that persons similarly situated to Springer would not be per- mitted to vote.' At the hearing counsel for the Independent admitted that there was no evidence which could support the allegation as a whole. The Independent then limited its contentions to the validity of the challenge as to Springer. Since his ballot could not affect the election, we find it unnecessary to decide whether he was eligible to vote. V. The Independent alleged in this allegation that "Sam" Roth was improperly permitted to vote at the election and voted for the P. W. O. C. The record shows that Roth had been absent from work since April 27, 1940, due to illness, but that he is still carried on the Com- pany's records as an employee. His name appeared on" the eligibility list and he was not challenged. No question was raised as to his e It appears that Springer had been absent during the pay-roll period ending November 21, 1942, because of illness. The P. W. 0. C. challenged him on the ground that he had quit. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eligibility either at the pre -election pay-roll conference , discussed above; or at the election itself. This allegation is without merit since employees who did not work during the pay-roll period ending November 21, 1942, because they were ill, were declared eligible to .vote in our Direction of Election. VI. In its sixth allegation, the Independent alleged that prior to the election an agreement was made between the Company , the Inde- pendent, and the P . W. 0. C. which provided that if any employee was permitted to vote during working hours, the election should be set aside; that Frank,Alsup• and other employees voted during their working hours, casting ballots for the P. W. 0. C., and that a similar right was not granted to members of the Independent. The Independent admitted, at the hearing, that it had no informa- tioli about employees , other than Alsup, voting during working hours. We will therefore treat only the Independent's contentions concerning the alleged agreement between the parties and its contentions concern- ing Alsup's alleged violation of the agreement. At pre-election conferences , at which various questions pertaining to the election were discussed , a P. W. 0 . C. representative insisted, and it appears that everyone agreed, that the Company was not to permit any groups of employees to take time off during working hours to vote in- the election , and that if this occurred, the P. W. 0. C. would regard it as a basis for a protest . The record further shows that responsible officials of the Company thereafter instructed their super- visory subordinates to adhere strictly to the rule , and that it was done in all instances . Don Mahon, president of the Independent , testified to the effect that Alsup was a member of the P. W. 0. C . and that he saw Alsup vote during working - hours. However, Alsup was not challenged. - We are convinced and find that no agreement was made that the election would be voided if any employee voted during work- ing hours , but that the parties understood that if groups of employees were released for the purpose of voting such action might result in a protest being filed. We find nothing in this contention warranting setting aside the election. VII. In its final allegation the Independent attacks the propriety of the P. W. 0. C.'s challenges made at the election. Since we have found no merit in the six allegations of the Independent , set out above, we deem it unnecessary to determine whether the persons challenged by the P. - W. 0. C. were eligible to vote. Even, assuming that all the challenges should be overruled, the final result of the election would not be changed. IOWA PACKING COMPANY CONCLUSION 311 We are of the opinion'and find- that the evidence does not support the objections of the' Independent and that there is nothing in the record which would warrant us in setting aside the election. The objections are therefore overruled and we, shall accordingly* certify the P. W. O. C. as the exclusive representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVES 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, Sections 9 and 10, of National Labor Relations Board Rules and Regulations-Series 2,-as amended, IT IS HEREBY CERTIFIED that Packinghouse 'Workers Organiz- ing Committee, on behalf of the United Packinghouse Workers of America, Local No. 89, affiliated with the C. I. 0., has been desig- nated and selected by a majority of all hourly' paid production and maintenance employees of Iowa Packing Company, Des Moines, Iowa, including storage employees and truck drivers, but excluding all general office and superintendent's office employees, medical depart- ment employees, time and employment office employees, credit union and snack employees, standards department employees, policemen and watchmen, superintendent, division superintendents, general fore- men, foremen, assistant foremen, gang leaders, salaried clerks, and salaried scalers, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, Packing- house'Workers Organizing Committee, on behalf of the United Pack- inghouse Workers of America, Local No. 89, affiliated with, the C. I. 0., is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of •pay,' wages, hours of employment, and other conditions of employment. MR. JOHN M. HOUSTON took no part in the consideration of the above Supplemental Decision and Certification` of Representatives.