The Cudahy Packing Co.

In the Matter of THE CUDAHY PACKING COMPANY and UNITED PACKINGHOUSE WORKERS OF AMERICA, AFFILIATED WITH THE C.I.O. Case No. 17-R-1308.Decided April 9, 1946 Messrs. Paul R. Kitch and Dan Wycherly, both of Wichita, Kans., for the Company. Mr. Ralph Baker, of Kansas City, Mo., and Mr. Lloyd Findley, of Wichita, Kans., for the Union. Mr. Jerome J. Dick, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by United Packinghouse Workers of America, affiliated with the C. I. 0., herein called the Union, alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of The Cudahy Packing Company, Wichita, Kansas, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Elmer L. Hunt, Trial Examiner. The hearing was held at Wichita, Kansas, on February 7, 1946. The Company and the Union appeared and participated.' All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues. At the hearing, the Company moved to dismiss the petition. This motion is denied for reasons hereinafter set forth in Sections III and IV. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. 1 At the outset of the hearing, the Company stated that it was appearing specially to contest the jurisdiction of the Board ; however, notwithstanding this declaration, the Company participated fully in the hearing. 67 N. L. R. B., No. 21. 150 THE CUDAHY PACKING COMPANY 151 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Cudahy Packing Company is a Maine corporation with its principal place of business at Chicago, Illinois. The Company's plant in Wichita, Kansas, is solely involved in this proceeding. At this plant, the Company is engaged in the business of slaughtering and processing livestock. During the year 1945, the Company purchased livestock at a value exceeding $10,000,000, of which approximately 50 percent was shipped from points outside the State of Kansas. Dur- ing the same period, the Company's sales of processed meat exceeded $10,000,000 in value, of which 80 percent was shipped to points outside the State of Kansas. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATION INVOLVED United Packinghouse Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of its plant-protection employees until it has been certified by the Board in an appropriate unit. The Company asserts that its present contract with the Union covering the production and maintenance employees of the Wichita plant estops the Union from seeking to represent the plant-protection employees. This contract was not introduced into evidence. However, it is apparent from the record that the plant-protection personnel were merely excluded from the contract unit, and there is nothing to show that the Union committed itself not to seek to represent the plant- protection workers. Consequently, the Union is not precluded from requesting certification as the exclusive bargaining representative of the plant-protection personnel.2 A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of em- ployees in the unit hereinafter found appropriate.3 2 Matter of Allegheny-Ludlum Steel Corporation, 64 N L. R B 1284. 8 A Board agent reported that the Union submitted seven cards, dated September 1945, bearing the names of company employees. The Company did not-furnish a pay roll. There are approximately eight employees in the alleged appropriate unit. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, 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 UNIT The Union seeks a unit of all plant-protection personnel at the Com- pany's Wichita plant, excluding the chief of guards. Contending that such a unit of guards is inappropriate, the Company maintains that these persons are not employees within the meaning of the Act, that the unit sought will not effectuate the policies of the Act, and that in any case the Union, as the representative of the Wichita plant's production and maintenance workers, may not represent the guards. The plant-protection force consists of the chief of guards and eight guards. One guard stands watch at the gate and the remainder patrol the plant. All the guards are armed and wear badges, but are neither militarized nor uniformed.4 Generally described, their duties consist of maintaining order and protecting life and property. More specifi- cally, their collective functions are to deny unauthorized persons and vehicles access to the Company's plant and to prevent materials or articles not properly cleared from being brought into or removed from the plant. In addition, it is incumbent upon them to report infractions of the Company's rules. Although the Company emphasizes that guards have the power to eject employees from the plant for violation of certain rules, this is merely a concomitant of their monitorial functions. For, after ejection, a guard is required to report the inci- dent to the chief of guards, who interviews the employee concerned and makes a recommendation which is subject to ultimate review by the plant superintendent. As a matter of fact, actual ejection by a guard rarely takes place. Usual procedure involves bringing the accused employee before the chief of guards, who takes whatever action he deems necessary. Testimony given by the plant superintendent to the effect that guards have the right to discharge employees is not in our opinion persuasive, when considered in the light of his further testi- mony that guards have never, to his knowledge, taken such action against employees. Although the guard office is located on the same floor as the plant's personnel office, where personnel files are kept, the guards are not permitted to examine these files except for the file of a person under investigation. The Company asserts that the guards are direct repTesentatives of management and, on this premise, urges that they cannot be deemed to be employees within the meaning of the Act. We find no warrant in the record for the conclusion that the guards are identified with ' At one time they were militarized. THE CUDAHY PACKING COMPANY 153 management. They do not formulate or determine the Company's labor relations policy. Their functions are unrelated to the pro- duction process, and they neither assign nor direct the work of other employees. As respects other employees, guards are merely monitors and not supervisory or managerial employees .5 Even assuming argu- endo that the plant-protection workers are in some manner identified with management, in their own relations with the Company they are, nevertheless, employees within the meaning of the Act." The Company also asserts that the policies of the Act will not be effectuated if a separate unit of plant-protection employees is found appiopriate. We have considered this contention in recent cases involving employees with similar duties and have found it to be with- out merit.' Finally, the Company argues that the Union may not represent the plant protection employees because it presently represents the Com- f any's production and maintenance employees. The same union, we have consistently held," may be the collective bargaining representative for a unit of production and maintenance employees and a separate unit of plant-protection employees. We find that all plant-protection employeees at the Company's Wichita, Kansas, plant, excluding the chief of guards and all other supervisory employees with authority 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. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. See Matter of Bethlehem Steel Company, 61 N L R B. 892 The Company also contends that it would violate the 5th Amendment to the Consti- tution for the Board to hold the plant guards to be employees within the meaning of the Act and find that they constitute an appropriate unit. We find this contention to be without merit Cf. N L R B v Hearst Publications, Incorporated, et al, 322 U. S. 111; N. L R B. v Pittsburgh Plate Glass Company, 313 U S 194 "See Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66 N L R. B 386 1 See , e g., Matter of Bethlehem Steel Company , supra ; Matter of Allegheny Ludlum steel Corporation, supra, Matter of Aluminum Company of America, 63 N. L R B 828 9 See, e g., Matter of Allegheny-Ludlum Steel Corporation, supra , Matter of Bethlehem Steel Company , supra. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The Cudahy Pack- ing Company, Wichita, Kansas, 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, under the direction and supervision of the Regional Director for the Seventeenth Region, acting in this mat- ter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among employees in the unit found appropriate in Section IV, above, 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, and including employees in the armed forces of the United States who present themselves in person at the polls, 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, to determine whether or not they desire to be repre- sented by United Packinghouse Workers of America, affiliated with the C. I. 0., for the purposes of collective bargaining.