C. A. Swanson and Sons

In the Matter of C. A. SWANSON AND SONS, EMPLOYER and INTER- NATIONAL UNION OF OPERATING ENGINEERS, LOCALS 38-38A, PETI- TIONER Case No. 17-RC-266.-Decided January 26,1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed., Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members.* Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations named below claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner seeks a unit composed of engineers and apprentice engineers,2 in the Company's Omaha, Nebraska, plant, excluding all salaried and clerical employees of the Employer, watchmen and guards, production workers, and supervisors as defined in the Act. The Employer and the Intervenor contend : (1) that a contract be- 1 The Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, Local N-271, hereinafter called Intervenor, was allowed to intervene at the hearing without objection. *Reynolds, Murdock, and Gray. 'Also known as firemen. 81 N. L. R. B., No. 54. 321 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tween the parties constitutes a bar to this proceeding; and 3 (2) that because of previous collective bargaining history the subject employees should not be severed from the existing over-all unit of production and maintenance employees. The Employer's Omaha plant consists of three units herein referred to as the Main, Creamery, and Gordon plants, all of which are engaged in the processing of dairy and poultry products. At the Main plant, the Employer carries on the business of eviscerating poultry, the canning of poultry, and the cooling, freezing, and packing of poultry- It also maintains a public cold storage business. The Creamery plant carries on the activity of churning cream into butter; and the Gordon plant is devoted to handling shell eggs. These eggs are candled, cartoned, and sold for retail trade. It appears that the Employer employs 17 engineers and apprentice engineers, of which the Main plant has 8, the Creamery plant has 5, and the Gordon has 4, all of whom are engaged in the operation and maintenance of refrigeration compressors, ice machine, deep freeze rooms, and boilers. A city ordinance requires that engineers be licensed as a prerequisite to their employment as such, whereas apprentice engineers are not subject to such requirement. The record discloses that engineers and apprentice engineers are departmentally separated and are under the supervision of one chief engineer; that they receive a higher wage scale than the production employees directly connected with the Employer's operations; and that they are not interchangeable with such employees, nor do they participate in the production work of the Employer's operations. On the contrary, they perform work of caring for the refrigeration equip- ment, and maintaining the rooms, coolers, and freezers, at proper tem- peratures at all times. Apprentice engineers in addition to assisting the engineers, also operate in each of the three plants, the boilers, which not only produce the steam required in the various departments of the Employer's operations, but also furnish the heat needed for the buildings. It further appears that the Employer maintains for these 'The contract claimed as a bar was executed on September 24, 1948. The previous contract contained an automatic renewal clause for 12 months , and year to year thereafter, unless modified by mutual agreement of the parties , or terminated by either party giving written notice to the other of such intention to terminate not more than 60 days and not less than 30 days prior to the end of such yearly period. Such notice was served by the Intervenor on June 28 , 1948. On August 17, 1948, the Petitioner made its request for recognition to the Employer On August 27, 1948, the petition was filed. On September 9, 1948 , the Intervenor submitted its list of changes to the Employer , and on September 24, 1948, the present contract was executed . Inasmuch as the notice to the Employer was, timely under the contract , such notice prevented its automatic renewal. We find, there- fore, that the 1947 contract is not a bar to this proceeding . Matter of Remington Rand Inc, 78 N. L. R B 181 . Inasmuch as the 1948 agreement was executed subsequent to the filing of the petition , it is not a bar to this proceeding . Matter of Southern Advance Bag' d Paper Co., Inc, 75 N. L. R B. 614. C. A. SWANSON AND SONS 323 employees separate quarters, lockers, and dressing rooms together with a separate departmental seniority list not in competition with production workers, since the engineers and apprentices are not con- sidered to be production employees. Although the Employer utilizes large quantities of steam and re- frigerated air in its operations, these products are not a component of the end product of its operations. The Employer is therefore dis- tinguishable from public utility companies in which system-wide units are favored by the Board.' In contrast with the employees of such concerns, it appears that the functions of the present employees are comparable to those of powerhouse employees who, despite a previous history of collective bargaining on a broader basis, are held separable from an over-all unit if they desire.5 In view of the lack of interchangeability of these employees with production employees, the separation of interests as evidenced by a separate seniority list and the separate immediate supervision of engi- neers and apprentice engineers under the chief engineer, their func- tional independence with respect to the production employees, and upon the entire record in this case, we believe that engineers and ap- prentice engineers may constitute a homogeneous, readily identifiable, and functionally coherent group, appropriate herein for the purposes of collective bargaining.6 Accordingly, we find that all engineers and apprentice engineers in the Employer's Omaha, Nebraska, plant, excluding all salaried and clerical employees, watchmen and guards, production workers, profes- sional employees, and supervisors as defined in the Act, may constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. However, we shall make no final unit determination at this time, but shall first ascertain the desires of these employees as expressed in the election hereinafter directed. If a majority vote for the Petitioner, they will be taken to have indicated their desire to constitute a sepa- rate appropriate unit. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by se- cret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was 4 Matter of Lynn Gas Electric Co., 78 N. L. R B 3. 'Matter of Crocker, Burbank and Co., Assen ., 80 N L. R. B. 774 ; and Matter of Worthy Paper Company Association, 80 N. L. R. B. 19. 9 See footnote 5, supra. 829595-50--vol. 81-22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees described in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or tem- porarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargain- ing, by International Union of Operating Engineers, Locals 38-38A.