The Packers Association of Chicago, et al.

In the Matter of THE PACKERS'ASSOCIATION OF CHICAGO, ET AL., Eir- PLOYER and UNITED PACKINGHOUSE WORKERS OF AMERICA, C. I. 0., PETITIONER - Case No. 13-R-4060.-Decided April 08, 1947 Mr. Isadore Vise, of Chicago; Ill., for the Association. Messrs. Harvey Mader, Herbert March, and Refugio Martinez, all of Chicago, Ill., for the Petitioner. Mr. Daniel D. Carmell, by Mr. Lester Asher, of Chicago, Ill., for the Intervenor. DECISION AND - • DIRECTION OF ELECTION Upon an-amended petition duly filed, hearing in this case' was held at Chicago, Illinois, on January 6, 8, 20, and 23, 1947, before Herman J. DeKoven, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The-Intervenor and the Association moved to dismiss the petition, contending that the following amendments by the Petitioner to its First Amended Petition, made at the hearing, are improper : (1) an amendment to correct the name of one of the member-Companies (H. C. Bohack Co., Inc.) and (2) an amendment to change the de- scription of the unit alleged as appropriate, in accordance with the Petitioner's position at the hearing, as to various inclusions and ex- clusions. This contention is, clearly without merit, and the motions are denied. The Intervenor also moved to dismiss the petition on the grounds that its contract with the Association constitutes a bar to the instant proceeding and the unit requested, by the Petitioner is inap- ptopriate. For reasons appearing in Sections III and IV, infra, the motions are denied. The Petitioner's request that the-Board take judicial notice of a memorandum which it submitted in a prior pro- ceeding is also denied. The Intervenor's request for oral argument is denied inasmuch as the record, in our opinion, adequately presents the issues and positions of the parties. 1As to the second amendment, evidence concerning. the, inclusions and exclusions was fully developed by all parties , and no claim was made that additional time was needed in order to meet the Petitioner's position. 73 N. L. R B., No 120. - 627 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the National Labor, Relations Board makes the following : FINDINGS OF FACT 1. THE 13tSTNESS-OF-THE ASSOCIATION AND THE COMPANIES The 'Packers Association of Chicago, herein called the Association, is an Illinois corporation with its principal office in Chicago, Illinois, and is engaged in representing, for the purposes of collective bargain- ing its well as for other purposes, various companies which are them- selves engaged in the meat slaughtering or casing business. Its membership is composed of nine such companies, herein called the Com- panies, all of which are either Illinois corporations 'or licensed to do business in the State of Illinois. Seven of these nine Companies are en- gaged in slaughtering,2 whereas the remaining two 3 perform casing operations at the plants of other member-Companies as well as at those of meat packing companies not belonging to the Association. During the past year, each of the slaughtering Companies used at its plant raw materials and livestock valued in excess of $1,000,000, of which more than 5,0 percent was shipped to such plant either -directly from points outside the State, of Illinois or indirectly through the Union Stock Yards,from points outside that State. During the same period, each of these Companies processed goods valued in excess of $1,000,000, of which approximately 10 to 40 percent was'shipped out- side the State of Illinois from its plant. - Each of the Companies engaged in slaughtering admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. We also find that the operations of each of the casing Companies affect commerce within the meaning -of the Act. 'We find, in addition, that the Association is an Employer of 'the employees of the Companies within the meaning of Section 2 (2) of the Act. H. THE ORGANIZATIONS INVOLVED4 The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming' to represent employees of the Employer. 2 H C Bohack Co , Inc, 944 West 38th Place , Chicago, Illinois , Bronx Meat Company, 3840 South , Emerald Street , Chicago, Illinois; H Graver Company, 3817 South Morgan Street, Chicago , Illinois ; Illinois Packing Company, 911 West 37th Place. Chicago, Illinois; Lincoln Meat Company , 3804 South Halsted Street , Chicago , Illinois, Siegel Weller Pack- ingCompany, 4535 South McDowell Avenue, Chicago, Illinois ; Wimp Packing Company, 1127 West 47th Place,. Chicago, Illinois 3Independent Casing Company, 1335 West 47th , Chicago, Illinois , Premier Casing Com- pany, 610 West Root, Chicago, Illinois. ° A representative of the International Union of Operating Engineers, Local 399, appeared at the hearing, but withdrew when the parties agreed that the operating engineers employed by the Companies would be excluded from any unit herein found appropriate. THE PACKERS ASSOCIATION OF CHICAGO, ET AL. 629 Amalgamated Meat Cutters tnd Butcher Workmen of North Amer- ica, herein called the Intervenor, is a labor organization affiliated with the American Federation of Labor, claiming to represent em- ployees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Association and the Companies refuse to recognize the Peti- tioner as the exclusive bargaining representative of employees of the Companies until the Petitioner has been certified by the Board in an appropriate unit. On December 29, 1944, the Association and the Intervenor executed a collective bargaining contract to become effective on January 1, 19,45, and to remain in full force until December 31, 1947, and "from year to year thereafter unless terminated or amended by the parties as herein provided." Significantly, the contract provided that either party might give written notice, 60 days prior to December 31 of the year 1945 or any subsequent year, of an intention to terminate, amend, or modify it, and thus, apparently, effect its termination on any an- niversary date commencing, with the year 1945. No such notice has ever been given by either of the contracting parties. This contract was the latest in a series of collective bargaining agreements between the same parties extending over a period of about 10 years.' On October 31, 1946, the Petitioner wrote a registered letter to each of the 7 member-Companies of the Association which are, engaged in slaughtering operations, claiming to represent "in a unit appropriate" for the purposes of collective bargaining, "a majority of all employees employed in your plant doing production work." The letters were delivered to these Companies on November 1, 1946, prior to the opera- tion of the automatic renewal clause of the contract. On November 7, 1946, less' than 10 days later, the Petitioner filed with the Board its original petition, requesting an Association-wide unit.9 The Association does not maintain separate offices, its four execu- tives are all officials of member-Companies, and it would seem that Association business is transacted through these officials at their own respective plants. ' , - The Intervenor contends that its contract with the Association is a bar to the instant proceeding. This contention is based on the argu- ment that because, prior to the filing of the original petition, no specific claim for an Association-wide unit was made of any party and the Association itself was not notified of the Petitioner's representation 5 This bargaining history is set forth in detail in Matter, of Illinois Packing Company, 56 N L R B 221 6 Thus, the requirements as to the time of advancing a rival claim and filing a petition, set forth in Matter of General -Electric X-Ray' Corporation, 67 N. L R. B. 997, have been met. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claim, the October' 31 letters did not-constitute adequate notice of the Petitioner's claim to an Association-wide unit; and that the original petition, by itself, cannot preclude the contract from serving as a bar, because it was filed subsequent to the operation of the contract's auto- matic renewal clause. The Intervenor also argues that the claim and _ the original petition were fatally defective in that they did not ex- tend to the two member-Companies which are engaged in casing operations. The October 31 letters requested recognition "in a unit appropriate" for bargaining purposes. In view of. the 12-year history of collective ,bargaining on an Association-wide basis, and the Board's prior hold- ing that only an Association-wide unit is appropriate,' we are of the -opinion that the language of these letters was sufficient to indicate that the Petitioner was probably seeking an Association-wide -unit, or that it was reserving the right to do so. Furthermore, considering that the Association's executives are officials of member-Companies and that the Association has no separate offices, the Petitioner's failure directly to notify the Association of its claim to representation cannot be regarded as fatal." - It is true that the Petitioner did- not • give' notice of its claim to representation to the 2. member-Companies 9 which are engaged in casing operations,-and did not mention these Companies in its orginal petition. It later amended its petition and now seeks to represent the employees of the 2 casing Companies who regularly spend all their working time at the plants of the other 7 member-Companies. These employees perform casing operations at these plants and mingle with the workers there; they, and no other employees of the casing Com- panies, have been included within the scope of the existing contract between the Association and-the Intervenor, and all parties agree that they should now be included in the Association-wide unit. It is significant, however, that there are only about 45 -such workers em- ployed by the' casing Companies, whereas the other 7 member-Com- panies have some 740 production and maintenance employees. The Petitioner's representative at the hearing testified, moreover, that he made various efforts 'to ascertain the identity of all the members of the Association without being -informed that the 2 casing Companies were among them. Under all the circumstances, we-are of the opinion • that the Petitioner's omission to notify the 2 casing Companies of its claim to representation and to include them in its original -petition, does not render the claim or the petition defective. See footnote 5. The Petitioner participated in that proceeding. In, any event, as herein noted, seven out of nine' of the Association 's membei,s were given notice of the Petitioner 's claim, and this, in effect, constituted'notice to the Associa- tion. 9 Independent Casing Company and Premier Casing Company. THE PACKERS ASSOCIATION OF CHICAGO, ET AL. 631 We find, therefore, that the contract of December 29, 1944, entered into between the Association and the Intervenor , is no bar to a current determination of representatives. - We find that a question affecting commerce has arisen concerning the representation of employees of the Companies , within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT All the parties are in general agreement that the appropriate unit should include all production and maintenance employees of the seven member-Companies of the - Association engaged in slaughtering, as well as those workers of the two casing member-Companies who work at the plants of the other seven Companies . They also agree to ex- clude from the appropriate unit -all truck drivers, engineers , mainte- nance engineers, firemen, office employees , certain minor categories of workers, and specified supervisory employees , ag well as all personnel of the two casing Companies who do not actually work at the plants of other member-Companies. The parties are in disagreement, how- ever, as to certain groups of employees and individual workers, enum- erated below , all of whom the Petitioner would exclude as clerical, managerial, or supervisory employees, as the case may be. The Inter- venor would include all the employees in dispute, in most cases on the grounds that they perform work which , essentially, is a part of the production process, and have been included-under all its past contracts with the Association for some 12 years. Except where noted, _ the Association is in accord with the Intervenor 's position. Timekeeper (H. C. -Boh,ack Co., Inc.) : This timekeeper, whom the Petitioner considers an office clerical , spends most of his time entering on time books the data taken from the time clock cards . In addition to his regular timekeeping duties, he prepares production reports on the hog killing department and administers first aid. He performs most of his duties in an office occupied by plant clericals , located on the plant floor, whereas the general office employees work in the main office on the floor below. In common with the production and maintenance employees, he is hourly paid , is listed on the same pay roll, has the same terms and conditions of employment, and enjoys the same rights and privileges. He is supervised directly by the superintendent to whom the production and maintenance foremen report . The general office workers, who are all salaried, have different'supervision and.are on a different pay roll. All the foregoing facts indicate that the time- keeper has a greater community of'interest with the production and maintenance employees than with- the office workers. Therefore, we shall include the timekeeper within the appropriate unit .10 10 Matter of Northwest Engineering Company, 73 N. L. A. B. 40. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - Safety man and hog scaler (H. C. Bohack Co., Inc.) : The Petitioner contends that these two employees are clericals . The safety man 11 spends approximately 2 hours a day making tours of the entire plant, watching for fire and other hazards and reporting to his superior (the superintendent ) any infractions of safety ' rules by other employees. He spends an additional 3 hours a day preparing production reports pertaining to yields of various carcasses. At other times he may also prepare reports on carcasses and other products condemned by Govern- ment inspectors . It is thus apparent that oily a small portion of his working time is devoted to safety work, and that his clerical duties are intimately related to the production process. The hog scaler spends approximately 60 percent of his time in the hog killing department, reading the weight of the hogs before they enter , the cooler. The remainder of the time he prepares reports on ,the number of hogs killed and the number condemned. Both the safety man and the hog scaler are on the production and maintenance pay roll, are hourly paid, have the same terms and con- ditions of employment and enjoy the same rights and privileges as do the production and maintenance workers, and are supervised immedi- ately or ultimately by the plant superintendent. Furthermore, they have been included within the 'scope of the various contracts between the Association and the Intervenor since 1935 . In view of all the foregoing facts , we shall include them within the appropriate unit. Watchmen: In this group are three watchmen employed by H. Graver Company , three by Illinois Packing Company, and three by -Siegel Weller Packing Company12 The'Petitioner argues that these ,watchmen are plant'-protection employees and part of management. However, it is clear from the record that they perform the usual cus- todial duties characteristic of watchmen and that none of them are monitorial ; furthermore, they, come into contact only with workers in the production and maintenance unit, and are supervised by officials who are also responsible for production and maintenance employees.- While the watchmen at, Illinois Packing are armed and those at Seigel Weller are armed and deputized , none of the watchmen in the group, are uniformed or militarized . Except for those at Seigel Weller, who had been ' employed only about 4 months at the time of the hearing, the watchmen in this group have been covered by all contracts between the Intervenor and the Association . , All the foregoing facts disclose a close community of interest between the watchmen and the produc- ii Smith At the hearing, the Intervenor stated that, since the watchmen at Siegel Weller wei e members of another AFL union ( General Service Employees Local Union No 73, affiliated with the Building Service Employees International Union , AFL)', it would not seek to include them within the-appropriate unit unless the General Service - Union executed a waiver and disclaimer of interest. However, in a letter to the Board dated February 18, 1947 , the Intervenor stated that , since such a waiver and disclaimer of interest had-been secured, it desired to include the watchmen -in the appropriate unit. I THE PACKERS ASSOCIATION OF CHICAGO, ET AL. 633 tion and maintenance employees. We shall, therefore, include the watchmen within the appropriate unit 13 Scaler (Lincoln Heat Company) : The' Petitioner seeks to exclude this employee 14 from the appropriate unit on the ground that he acts as foreman in the absence of the regular foremen of the killing floor and tank room, and exercise supervisory authority during such pe- riods. The Association takes no position. The sealer's normal duties consist of weighing carcasses on the production floor, and he is an hourly paid employee covered by the various contracts between the Association and the Intervenor. The regular foreman, a salaried worker, is absent from his post for a 3-week vacation period each year, as well as for 1 or 2 weeks at other times by reason of illness or other circumstances. During these 4 or 5 weeks, the scaler is in charge of the 31 employees on the killing floor and tank room, but retains his regular hourly pay rate, which is no higher than that of the highest paid production worker in that section. During this period, the scaler makes effective recommendations as to employment status but has no authority to hire or discharge, such as is possessed by the regular foreman. At all other times the scaler has no supervisory authority whatsoever. Since he is not a regular supervisor, and acts in that capacity only infrequently and sporadically, we find that he is not a true supervisory employee, and shall include him within the appropriate unlt.15 Assistant foreman (Premier Casing Company) : This individual 16 is stationed at the H. C. ' Bohack Co., Inc., plant. The Petitioner requests his exclusion from the appropriate unit as a supervisory employee. He exercises supervisory authority only in the infrequent and sporadic absence of the foreman, whom the parties have agreed to exclude as a supervisory worker, and this authority is limited to - the power to make effective recommendations. The assistant foreman has been included in the contract unit by the Intervenor and the Asso- ciation. We are of the opinion that the-assistant foreman, like the scaler (Lincoln Meat Company), does not enjoy true supervisory status and we shall, therefore, include him in the appropriate unit. Other alleged supervisory employees: ,The parties are in dispute as to 22 workers employed by various member-Companies. The Peti- tioner alleges that they- are in fact supervisory personnel and should therefore be excluded from the appropriate unit; the Intervenor seeks to include all of these 22 employees-; while the Association takes no position with respect to any of them except for the foremen at Bronx 1' See Matter of Alabama Marble Company, 71 N. L R. B 275, Matter of J. t L Steel Bai rel Company, 68 N L R B 409, Matter of Taylor Fibs e Company, 64 N. L R B 247. 1' Gilbert Dell Angelica 15 See-Matter of Youngstown Sheet and Tube Company, 71 N L. R. B. 219; Matter of Plankvnton Packing Company, 69 N L R B 920 is Frank Rogals 634 DECISIONS OF NATIONAL LABOR 'RELATIONS -BOARD Meat Company, whom -it would include. The 22 employees are as follows : 3 working foremen, 2 group or gang leaders, and 1 night = gang leader at H. C. Bohack Co., Inc.; 4 foremen at Bronx Meat Company; 2 foremen at H: Graver Company; 1 working foreman at Wimp Packing Company ; 5 working foremen at Illinois Packing Company; and 4 working foremen at Siegel Weller Packing Com- pany. Except-for 2 of the working foremen at Illinois Packing Company'17 all the disputed foremen, working foremen: and gang leaders were shown at the hearing to have the authority to make changes in the status of those employees working under them, or to make effective recommendations -for such changes. ' V It is the Intervenor's contention that, despite such authority, the employees in dispute should be-included in the appropriate unit by reason of their coverage since 1935 by the various contracts with the Association and because of an alleged custom of including such em- ployees in other supervisory units in the meat packing industry. There was no showing, however, that there exists in the heat - packing in- dustry in Chicago or elsewhere a prevailing custom of including such supervisory employees in production and maintenance units. In the absence of such a showing, the Board will not ordinarily direct the inclusion of supervisory employees in a rank and file unit.18 We see no reason in this case to depart from our usual practice. We shall, therefore, exclude from the appropriate unit all of the 22 disputed workers, with the exception of the 2 working foremen at Illinois Packing Company, whom we shall include in the unit. We find that the following employees constitute a' unit appropriate for the purposes of collective bargaining within the'meaning of Section 9 (b) of,the Act: All production and maintenance employees working at plants of member-Companies 19 of the Packers Association, includ- ing'the timekeeper; safety man, and hog scaler at,H.-C. Bohack-Co., Inc. ; the watchmen at H. Graver Company, Illinois Packing Company, and Siegel Weller. Packing Company; the scaler at Lincoln Meat Com- pany; the assistant foreman employed by Premier Casing Company who is stationed at the plant of H. C. Bohack Co., Inc.; and working foreman J. E. Mathys of the night loading gang and the working fore- man of the cutting department at Illinois Packing Company; but excluding truck drivers, engineers, maintenance engineers, the chief electrician at Illinois Packing Company, firemen, the steamfitter, and the cartman at H. C. Bohack Co., Inc., kosher butchers (shochtim), salesmen, buyers, and office employees; the foreman in the hog kill, coolers and loading, and beef kill departments, the working foremen 11 J. E Mathys, working foreman on the night loading gang, and Paul Riskes, in the cutting department. 18 Cf. Matter of W. H Kistler Company, 70 N. L R. 13.1195. 10 With respect to H. C. Bohack Co, Inc, only the employees of its Chicago plant are involved in this proceeding and are included in the appropriate unit. THE PACKERS • ASSOCIATION OF ' CHICAGO; ET AL. 635 in the tank room and tripe house and in the offal cooler and hog kill departments, the group (or gang) leaders in the loading and coolers departments, and the night gang leader in the general department at the-H. C. Bohack Co., Inc. ; the foremen of the casing, beef kill, render- ing and tank, cooler, and night clean-up departments at Bronx Meat Company; the foremen of the killing floor and the night gang at H. Graver Company; the foreman of the killing floor and tank room at Lincoln Meat Company; the foremen in the boning and cold offal departments, the working foremen of the tank room and of the hot offal department, and working foreman Henry Albert of the night loading gang at Illinois Packing Company; the working foremen in the killing, hide cellar boning, and cooler and loading departments at Siegel Weller Packing Company; the working foremen of the killing floor at Wimp Packing Company; the foremen employed by Premier Casing Company and Independent Casing Company who are stationed at plants of other member-Companies of the Association; all other supervisory employees having. authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action; and all employees of Independent Casing Company and of Premier Casing Company who do not perform work at the plants of any other member-Companies of the Association. DIRECTION OF ELECTION 20 As part of the investigation to ascertain representatives for the purposes of collective bargaining 'with The Packers Association of Chicago, and its member, Chicago,' Illinois, 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 Thirteenth 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 Section IV, above, who were employed dur- ing the pay-roll period immediately preceding the date of this Direc- tion, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and includ- ing employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quite 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 United Packinghouse Workers of America, CIO, or by Amalgamated Meat Cutters and Butcher Workmen of North America, for the purposes of collective bargaining, or by neither. 20 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.