Swift & Company, Inc.

In the, Matter of SWIFT & COMPANY, AN ILLINOIS CORPORATION, LI- CENSED TO TRANSA CT'' BUSINESS IN THE STATE OF NEW YORK AS SWIFT & COMPANY, INC. (UNITED DRESSED BEEF DIVISION) and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 816, AFL Case No. 2-R-41$3.Decided November 6, 1943 Mr. John P. Staley, of Chicago, Ill., for the Company. Mr. Samuel J. Cohen, of New York City, for the Union. Miss Muriel J. Levor, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon,amended petition duly filed by International Brotherhood of Teamsters; Local 816, AFL, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Swift & Company, an Illinois corporation, licensed to transact business in the State of New York as Swift & Company, Inc. (United Dressed Beef Division), New York City, herein called the Company,' the National Labor Relations Board provided for an appropriate hearing upon due notice before John J. Cuneo, Trial Examiner. Said hearing was held at New York City, on October 15, 1943. The Company and the Union appeared,2 participated, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence bearing on the issues, and to file briefs with the 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' Swift & Company, an Illinois corporation with its principal office and place of business at Chicago, is licensed to do business in the State I A motion was made and granted at the hearing to amend the petition and other formal documents to set torth the name of the Company , as above. ° Officers of Employees Council Union also appeared at the hearing However, after evidence of that organization's dissolution was adduced , they withdrew their claim of interest in this proceeding. 53 N. L. R. B., No. 83. 477 • 559015-44-vol. 53-32 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of New York as Swift & Company, Inc. (United Dressed Beef Di- vision). Swift & Company maintains and operates packing plants, warehouses, and branch houses throughout the various States of the United States. The Company operates a branch office and plant in New York City, with A-Hhich we ,are concerned in this proceednlg; where it is engaged in, the slaughtering of cattle, sheep, and lamb, which it processes and. prepares for sale ,aiid distribditioii as meat, meat products, and byproducts. During the year ending about Sep- tember 10, 1942, the Company purchased livestock, its principal raw material, for use in the New York City plaint'td a value iii excess of $1,000,000, of which approinately 90 percent was `shipped. from points outside the State of New York. During the same period; the Company produced and proces'sed -finished products valued at 'more than $1,000,000, at its, New York City plant, of which approximately 33 percent was shipped to points outside the State of New York. The Company concedes that it' is engaged in commerce within the meaning of the National Labor, Relations Act. II. THE ORGANIZATION INVOLVED 1. , International Brotherhood of Teamsters, Local 816, is a labor or- ganization affiliated with the American Federation of Labor, admit- ting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On August 16, 1943; th'e Unioii asserted 'ii claim 'to represeiit'a' th t- jority of the Company's motor vehicle 'drivers and requested recogni= tion as their collective bargaining agent. The Company iefiised to accord such recognition unless and until the Uiiion was certified by the Board; on the ground that Employees Council Union wa's `the cer- tified bargaining representative of its drivers. , ' ' A statement of the Regional Director introduced in evidence At the hearing indicates that the Union 'rep'resents a substantial n'u'mber 'f eliiployees in the unit hereinafter found appropriate.3 1 1 ' 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 UNrr The Union claims as appropriate for collective bargaining purposes a unit composed of the Company's chauffeurs, truck pullers, plant 3 The Regional Director repoited that the Union submitted 49 designations, of which 42, bearing apparently genuine original signatures, correspond with names on the Co`m- pany's pay roll of August 21, 1943, which contains 56 names. - 1 11 SWIFT & COMPANY 479 drivers; and fa't ,collectors; excluding. supervisory employees, with 'which.position the Cwnliany is-in accord. The sole controversy arises from the Union's contention, which the Company opposes, that 5 specified 'employees 4 of the Company heretofore employed within the- afore-mentioned categories, 'and ,nowwo'rking at other duties, be included-in the unit, since there is a possibility that they will be re- employed at their former. activities. ,(,The 5 contested employees had' been employed by the Company at,ivo'rk which it is conceded is within the proposed unit until they were laid' off, because of a diminution in the Company's trucking activities: They were severed from thegarage pay roll and were given the -opportunity to take other positions -with the Company. When these-men asked for information the, Company told them they Would be, given a preference `should increased business require, the Company to take on additional drivers. The Company takes the position that these men are not "temporarily laid off" within the meaning of Board decisions, since they are at pre'seilt re'gitAA empl'o'yed at other occupa- tions and merely retain seniority rights with respect to their previous employment ; Four of these employees are presently employed as beef loader, veal loader, janitor; and as timekeeper, respectively, and the Union concedes that they,would,not be eligible to its membership were it not for their past employment, the contingency referred to above, and' their occa- sional employment as , emergency drivers. The record discloses that Cirrincione, laid off Qctober 4, 1942, has been` given work as a part- time chauffeur-for 3 days, since that date; Guadagno, laid off February 1943, 5 days; Clark, laid off May 9,1943; 3 days; and Scalone has not w,orked.as a chauffeur since his lay-off. Upon, these facts and since it appears that there,is no definite prospect of reemployment at occupa- tions within the-proposed unit, we find that the 4 employees in question should be eacluded.5 The, other contested employee,, Lyons, is now engaged in driving a small tractor, called a "shop mule," upon the Company premises. The Union contends that:Lyons should be•included for the reasolis it gives with respect to the other disputed employees and on, the further ground that:he is the.driver of a motor-propelled vehicle. The tractor is used to pull a trailer, loaded with hides from the beef and `calf hide cellars to the Company's,loading pier. Although Lyons is carried On the garage payroll and punches the garage time clock, lie works under the super- vision,of the general foreman of the hide department. His basic wage late and, his, overtime are calculated according to the terms of the con- tract covering the production and maintenance employees, from which Cirrinclone, Guadagno , Clai k , Scalone, Lyons See Matter of Utica and Mohav k Cotton Hills , 51 N L R. B 257, 261. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees requested herein are excluded as truck 'drivers. Fur- thermore , Lyons' predecessor as tractor driver was held eligible to vote at an election to determine the representative of the production and maintenance employees , and was not held eligible to vote in a consent election for the chauffeurs' unite The position of tractor driver in the Company's • organization is a production job. • ,Accord- ingly, we shall exclude Lyons from the unit. - I We find that all chauffeurs , truck pullers, plant, drivers, and fat col- lectors employed at the Company's New York City plant; but excluding Cirrincione, Guadagno , Clark, Scalone, and 'Lyons,, and any super- visory employees having the 'right . to hire, 'promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action ,, constitute a unit appropriate for the purposes of collective ,bargaining, within .the meaning of Section 9 (b) of the Act. ' ' I ' I ^ I , V. THE DETERMINATION OF REPRESENTATIVES, We' shall direct that the question concerning' representation which has arisen be resolved by means of an election by secret ballot among the'employees in the a ppropriate'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. 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 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 Swift & Company, an Illinois' corporation, licensed to' transact business in the State of New York as Swift & Company, Inc:' (United Dressed Beef Division), New York City, an election by secret ballot shall be conducted' as early as possible but note later than thirty' (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Second 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 the employees in the unit found 'appropriate in Section IV, above, who Were employed during the pay-roll period immediately 'preceding the date of this 6 This election , held September 1942, was followed by the designation of Employees Council Union as the bargaining representative of the chauffeur unit. However, such designation did not result in all agreement with the Company. SWIFT & COMPANY 481 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 any who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by International Brotherhood of Team- sters, Local 816, affiliated with the American Federation of Labor, for the purposes of collective bargaining.