Phillips Packing Co.

In the Matter of PHILLIPS PACKING COMPANY, EMPLOYER and FOOD, TOBACCO, AGRICULTURAL AND ALLIED WORKERS OF AMERICA, CIO, PETITIONER Case No. 5-R-2882.-Decided April 18, 1947 Messrs. Harold M. Weston and Robert Volger, for the Board. Messrs. Everett L. Buckmaster and Harry Green, of Baltimore, Md., for the Employer. Mr. I. Duke Avnet, of Baltimore, Md., for the Petitioner. Mr. Charles Ruzicka, of Baltimore, Md., and Mr. Frederick P. MeBriety, of Cambridge, Md., for the Intervenor. Mr. Stanley Segal, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Cam- bridge, Maryland, on March 3 and 4, 1947, before Earl K. Shawe, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing the Petitioner moved that the Board instruct the Employer to give the Petitioner the names and addresses of employees who commute to and from the Employer's plants in and about Cambridge, Maryland, from points outside that town. The granting of such a request is contrary to Board policy and practice. Accordingly, it is denied. The Intervenor moved that the petition be dismissed on the ground that the Petitioner did not make a sufficient showing of interest. We are satisfied that the Petitioner's showing is adequate.' The motion is hereby denied. In its brief, the Intervenor further moved that the petition be dismissed on the ground that for the past 7 years it has represented the production and maintenance employees of the Em- ployer. This motion is denied for reasons stated hereinafter. Upon the entire record in the case, the National Labor Relations Board makes the following : 1 See Matter of 0. D Jennings & Company, 68 N. L. R. B. 516; Matter of General Elec- tric X-Ray Corporation, 67 N. L R. B. 997. 73 N. L. It. B., No. 88. 447 739926-47-vol. 73-30 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Phillips Packing Company, a Maryland corporation with its prin- cipal office and place of business in Cambridge, Maryland, is engaged in the canning of vegetables and other food products. During 1946, the Employer purchased farm products valued in excess of $10,000,000, of which approximately 50 percent was shipped to its plants from points outside the State of Maryland. During the sauce period, it sold products valued in excess of $25,000,000, of which approximately 95 percent was shipped outside the State. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. Dorco Workers Union, Inc., herein called the Intervenor, is an unaffiliated labor organization, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. The Employer asserts that an existing collective bargaining contract entered into with the Intervenor on March 7, 1946, is a bar to this proceeding. On January 22, 1946, the Employer, the Petitioner, the Intervenor, and a labor organization affiliated with the American Federation of Labor entered into a stipulation for certification upon consent election.2 The election was conducted on January 30, 1946. As a result of the election, which was won by the Intervenor, the Board, on February 12, 1946, certified the Intervenor as bargaining represen- tative of employees in the stipulated unit. On March 7, 1946, the Intervenor and the Employer executed a collective bargaining contract to expire on March 7, 1947. This agreement contained no automatic renewal clause. Inasmuch as this 1946 contract has terminated, we find that it is not a bar to a present determination of representatives. The Intervenor also urges that the petition be dismissed because it has represented the employees in the unit for the past 7 years. This is not a ground for denying an election at this time. Further, as 2 Case No. 5-R-2218. PHILLIPS PACKING COMPANY 449 previously indicated;, more, than 1 year. has elapsed since the Board's previous certification of the Intervenor. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The parties agree that a unit of all production and maintenance employees at the Employer's operations in the Cambridge area, in- cluding employees listed in Appendix A, attached hereto, but exclud- ing office and clerical employees, supervisory employees and employees listed in Appendix B, attached hereto. The only dispute relates to the categories of employees discussed' hereinafter. The Petitioner would exclude and the Intervenor include these employees. The Em- ployer is neutral. Disputed Classifications Custodians: These employees work in the warehouse. , They keep records of all products shipped into or out of the warehouse. They also fill orders. Each custodian may have as many as 12 assistants. However, it does not appear that the custodians have the authority to change or effectively recommend changes in the status of their assist- ants. We find that they are not supervisors within the Board's cus- tomary definition. We shall include them in the unit.3 Dispatchers and Shipping Clerks: The duties and authority of the dispatchers and shipping clerks are substantially the same as those of the custodians. We shall include them. Labor Ca?np Supervisor: This employee is the caretaker of a camp in which employees are housed. He has no subordinates. We shall include him. Guards and TVatchnwn: There are 8 guards and 12 to 15 watchmen, all of whom are armed and uniformed.4 The guards are stationed at plant gates, checking ingoing and outgoing vehicles and the identifi- cation badges of employees entering and leaving the plant. Appar- ently they do not patrol the plant's premises and are not charged with enforcing company rules. The watchmen protect the plants at night. Both guards and watchmen were expressly included, in the stipulated unit in which the previous consent election was held. They were also covered by the 1946 collective bargaining agreement between the Em- s The custodians , dispatchers and shipping clerks were permitted to vote without ob- jection in the 1946 consent election They were also covered by the collective bargaining contract between the Employer and the Intervenor executed subsequent to the consent election. * They were deputized duung the war but the Employer is uncertain whether they were still deputized at the time of the hearing. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer and the Intervenor. We shall include the guards and watch- men in the unit. Utility Chauffeurs: There are two utility chauffeurs. These em- ployees drive company executives and customers, deliver special pack- ages and perform janitorial work in the executives' offices. We shall include them. Mail Clerk: There is one mail clerk. He brings mail from the post office to the central office of the Employer and then distributes it. The major portion of his time is spent running errands for the office per- sonnel. He works under the supervision of the office manager. We shall exclude him from the unit. We find that all production and maintenance employees at the Em- ployer's operations in the Cambridge, Maryland, area, including the employees listed in Appendix A, attached hereto, custodians, dispatch- ers, shipping clerks, labor camp supervisor, utility chauffeurs, guards and watchmen, but excluding employees listed in Appendix B, attached hereto, office and clerical employees, mail clerk, and all 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 The Employer and the Intervenor urge that the pay-roll period ending December 14, 1946, be used in determining eligibility to vote. The Petitioner agrees to the use of this pay-roll period or any pay-roll period in June, September, October or December 1946. The Em- ployer's operations normally remain on a relatively even level throughout the year. As a consequence, the number of employees does not show the sharp fluctuations from month to month common in the canning industry.5 However, turnover among employees is very large. In January and February 1947, the number of em- ployees in the canneries markedly decreased because of a general but temporary recession in the canning industry.5 The Employer ex- pects a return to normal operations later in the year. Because the use of a current pay-roll period in determining eligibility to vote would not permit obtaining a representative vote, all parties seek the use of an earlier pay-roll period. The pay-roll period ending 'Monthly employment figures for 1945 were : January, 2,182; February , 2,091; March, 1,964 , April, 2,059; May, 1,918 ; June, 2,064 ; July, 1,945; August , 1,800; September, 1,575; October , 1,586; November,. 1,762 ; December, 1,915. For 1946 : January, 1,848; February, 1,878 ; March, 1,714 , April, 1,890 , May, 1,632 , June, 1,868 ; July, 1,775 ; August, 1,763 ; September , 1,929 ; October, 1,917 ; November, 1,828; December, 1,898 9 Employment figures for 1947 were : Week ending January 25 , 1,123; February 8, 1,003 ; February 15, 1,106. PHILLIPS PACKING COMPANY 451 December 14, 1946, is the most recent representative period, and, as previously indicated, is apparently acceptable to all parties. Under the circumstances, we shall direct the use of this pay-roll period in fixing eligibility to vote in the election. The parties agree that all employees hired subsequent to December 14, 1946, and who have worked for a period of at least 15 days there- after should also be eligible to vote. There is disagreement as to the closing date for determining the eligibility of such newly hired employ- ees. The Petitioner favors a date 30 to 60 days before the date of the election; the Employer and the Intervenor contend for the date of the election. We shall adopt the agreement of the parties as to the 15-day requirement in the case of employees hired after the pay-roll period ending December 14, 1946. However, we shall fix the date of the issu- ance of the Decision and Direction of Election herein, as the closing date for determining the eligibility of newly hired employees. The Petitioner further urges that employees who have not worked for the Employer since March 7, 1946, be declared eligible to vote. Apparently the only significance of the March 7, 1946, date is that on this date the contract between the Employer and the Intervenor was signed. We find no merit in this request and hereby deny it. We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION 8 As part of the investigation to ascertain representatives for the purposes of collective bargaining with Phillips Packing Company, Cambridge, Maryland, 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 Fifth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations- Series 4, among the employees in the unit found appropriate in Sec- tion IV, above, who were employed during the pay-roll period end- ing December 14, 1946, or who have been employed for a period of at least 15 days between December 15, 1946, and the date of the issuance of the Decision and Direction of Election herein, both dates inclusive, including employees who did not work during the December 14, 1946, pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United E Any participant in the election herein may , upon its prompt request to, and approval thereof by, the Regional Director, have its name removed from the ballot. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 they desire to be represented by Food, Tobacco, Agricultural and Allied Workers of America, C. I. 0., or by Dorco Workers Union, Inc., for the purposes of collective bargaining, or by neither. APPENDIX A Apprentice body maker mechanics Apprentice dope machine me- chanics Apprentice machinists. Apprentice press mechanics Assistant pipe fitters Body maker machine operators Box machine mechanics Box machine operators Carpenters Carpenter helpers Carton laborers Checkers Cooks Crane operators Dice mechanics Dope machine employees Double seamer machine operators Electricians Electric truck drivers Firemen Foot press machine operators General laborers Label machine operators Machinists Mechanics Pipe fitters Plant janitors Press machine employees Processors Saddle machine operators Samplers Scrap cutter machine operators Scrap tin end department em- ployees Scroll shearer machine employees Side seamer machine employees Slitter machine operators Spice room employees Tester machine employees Truck drivers Utility men Welders Weighers PHILLIPS PACKING COMPANY 453 APPENDIX B A ccounting clerks Assistant auditors Assistant building construction en- gineer Assistant buyers Assistant foremen Assistant office managers Auditors Billing clerk Bookkeeping machine operators Buyers ° Captain of guards Chemists Cost clerk Electrical engineers File clerks Medical and dispensary employees Nurses Office employees in the plants Office managers Pay masters Payroll clerks Personnel managers Plant managers Plant supervisors Quality control clerk Salesmen Secretaries Statistics clerk Stenographers Superintendents Supervisors Foremen Tabulating machine operators Junior clerks Technical engineers Managers Telephone operators Managers of agricultural depart- Traffic clerks ment Marine workers Traffic managers Typists Warehouse managers