A. Fink and Sons Co., Inc.

In the Matter of A. FINK AND SONS Co., INC. and AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF N. A., LOCAL 422, A. F. OF L. Case No. R-1011.Decided October 21, 1938 Meat Packing Industry-Investigation of Representatives : controversy con- cerning representation of employees : rival organizations ; majority status dis- puted by employer-Unit Appropriate for Collective Bargaining: all produc- tion employees, excluding office and clerical force and other non-production employees ; no controversy as to ; employees excluded from : working foreman ; employees included in : elevator operators, clean-up men, watchmen-Election Ordered-Certification of Representatives. Mr. Will Maslow, and Mr. Millard L. Midonick, for the Board. Schapiro, Wisan & Schapiro, by Mr. Harold Wisan, and Mr. Jacob Schapiro, of New York City, for the Company. Mr. Emanuel Oransky, of Newark, N. J., and Mr. Alfred Berger, of Irvington, N. J., for the Amalgamated. Mr. George B. Astley, of Newark, N. J., for the Committee. Mr. Harry Brownstein, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 5, 1938, Amalgamated Meat Cutters and Butcher Work- men of N. A., Local 422, A. F. of L., herein called the Amalgamated, filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of A. Fink and Sons Co., Inc., Newark, New Jersey, herein called the Company, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 18, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Sec- tion 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct t aud to provide for an appropriate hearing upon due notice. :9 N. L. R. B., No. 40. 441 442 NATIONAL LABOR RELATIONS BOARD On August 18, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and upon the Amalgamated. Pursuant to the notice, a hearing was held on September 1 and 2, 1938, at New York City, before R. N. Den- ham, the Trial Examiner duly designated by the Board. The Board, the Company, and the Amalgamated participated in the hearing, the first two being represented by counsel and the latter by its coun- sel and its business agent. On September 2, 1938, the hearing was adjourned to September 9, 1938, to permit notices to be served on the Employees' Committee of A. Fink and Sons Co., Inc., herein called the Committee, and on the International Brotherhood of Teamsters and Chauffeurs, Local No. 478, herein called the Brotherhood, labor organizations claiming to represent employees directly affected by such investigation. Accordingly, on September 2, 1938, a notice of continuance of hearing was served upon the Committee and the Brotherhood, as well as upon the Company and the Amalgamated. On reconvening the hearing on September 9, 1938, the Committee appeared by counsel, waived examination and cross-examination of witnesses previously heard, and adopted as its own presentation of the case, all the evidence previously adduced at the hearing. The Brotherhood did not appear. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY A. Fink and Sons Co., Inc., a Delaware corporation, having its principal office at Newark, New Jersey, is engaged in the manufac- ture of meat and meat products. The Company purchases annually raw materials, consisting principally of hogs, cattle, and provisions, amounting to $6,500,000, 70 per cent of which are purchased out- side the State of New Jersey. The Company sells annually about 80,000,000 pounds of manufactured products valued at approxi- mately $8,000,000. About 40 per cent of its products are shipped to points outside the State of New Jersey. II. THE ORGANIZATIONS INVOLVED Amalgamated Meat Cutters and Butcher Workmen of N. A., Local 422, is a labor organization affiliated with the American Fed- DECISIONS AND ORDERS 443 eration of Labor, admitting to its membership all production em- ployees of the Company, excluding those with supervisory duties. The Employees' Committee of A. Fink and Sons Co., Inc., is a labor organization admitting to its membership all production em- ployees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Amalgamated began its organizational activities at the Com- pany's plant in May 1937. There had been in existence at the plant for nearly 2 years an independent labor organization, heretofore referred to as the Committee, which claimed to represent the Com- pany's production employees, and with which the Company had bargained in the past in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment. On April 27, 1938, the Amalgamated requested recognition by the Company as the representative of the Company's production em- ployees for collective bargaining purposes. The, Company ques- tioned whether the Amalgamated represented the Company's em- ployees, and as a consequence, refused to bargain with it. We find that a question has arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT All parties to the proceeding agreed that the appropriate unit for collective bargaining should consist of all production employees of the Company, excluding the office and clerical force, salesmen, packing and shipping employees, chauffeurs, garage employees, em- ployees of the produce department engaged in shipping functions, "Sayer and Company" employees, who are employees of an inde- pendent contractor operating within the plant, employees in the print shop, mechanics, engineers, firemen, students, demonstrators, extras, and first-aid men. The Company indicated that the work- ing foremen in the various plants of the Company should be in- cluded within the appropriate bargaining unit, since they were em- ployees actively engaged in the manufacturing process. The Amal- 444 NATIONAL LABOR RELATIONS BOARD gamated desired them excluded from the bargaining unit. The record discloses that the foremen acted in a supervisory capacity, made recommendations to the Company, which were generally fol- lowed, in regard to disciplinary action and dismissal of employees, were directly responsible for the maintenance of the Company's pro- duction schedule, and transmitted orders to the employees regard- ing Company production policy and routine. Under such circum- stances, the working foremen will be excluded from the bargaining unit.' The Company questioned the propriety of including within the appropriate unit, employees classified under the "General Ex- pense" department, including elevator operators, general clean-up men, and watchmen, but offered no evidence in support of its posi- tion with respect to that group. These employees are eligible for membership in the labor organizations involved herein, and the Company representative stated that it considers them to be produc- tion employees. The "General Expense" employees will be included within the bargaining unit. We find that all the production employees of the Company, in- cluding the employees classified under the "General Expense" de- partment, and excluding working foremen, office and clerical force, salesmen, packing and shipping employees, chauffeurs, garage em- ployees, employees of the produce department engaged in shipping functions, "Sayer and Company" employees, mechanics, engineers, firemen, employees in the print shop, students, demonstrators, extras, and first-aid men, constitute a unit appropriate for the purposes of collective bargaining in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment, and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The Company introduced into evidence its pay rolls of April 30, 1938, and of August 27, 1938, the latter showing approximately 303 employees within the eligible group. The business agent for the Amalgamated testified that it had 20 paid-up members in its organi- zation and authorizations from 150 other persons, all of whom were employees of the Company within the appropriate unit, who de- sired the Amalgamated to represent them for the purposes of collec- tive bargaining. The attorney for the Company testified that he knew, of his own knowledge, of 55 employees of the Company who authorized the Amalgamated to represent them for this purpose. I See, for example, Matter of Richardson Company and Local Union No . 442, U. A. W. A., 4 N. L. R. B. 835; Matter of St. Joseph Stockyards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 159, 2 N. L. R. B. 39. DECISIONS AND ORDERS 445 The Amalgamated did not introduce other proof of its claim to represent a majority of the employees in the appropriate unit. The Committee also asserted a claim to represent a majority of the Com- pany's employees but offered only oral testimony in support of its claim. Under the circumstances, we find that the question which has arisen concerning the representation of employees can best be re- solved by the holding of an election by secret ballot. The Com- mittee expressed the preference that eligibility to vote in the elec- tion should be determined on the basis of the employees in the appropriate unit whose names appeared on the Company's pay roll of August 27, 1938. The Amalgamated raised no objection to this eligibility date and we shall adopt it. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of A. Fink and Sons Co., Inc., Newark, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The production employees of the Company, including the em- ployees classified under the "General Expense" department, and ex- cluding working foremen, office and clerical force, salesmen, packing and shipping employees, chauffeurs, garage employees, employees of the produce department engaged in shipping functions, "Sayer and Company" employees, mechanics, engineers, firemen, employees in the print shop, students, demonstrators, extras, and first-aid men, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the National Labor Relations Act. 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 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for collective bargaining with A. Fink and Sons Co., Inc., Newark, New Jersey, an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction under the direction and supervision of the Regional Direc- tor for the Second Region acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 446 NATIONAL LABOR RELATIONS BOARD 9, of said Rules and Regulations, among the production employees who were listed on the pay roll of August 27, 1938, including em- ployees listed under the "General Expense" department, and ex- cluding working foremen, office and clerical force , salesmen, packing and shipping employees, chauffeurs, garage employees, employees of the produce department engaged in shipping functions, "Sayer and Company" employees, mechanics, engineers, firemen, employees in the print shop, students, demonstrators, extras, and first-aid men, and those employees who have since quit or been discharged for cause, to determine whether they wish to be represented by Amalga- mated Meat Cutters and Butcher Workmen of N. A., Local 422, A. F. of L., or by the Employees' Committee of A. Fink and Sons Co., Inc., for the purposes of collective bargaining, or by neither. [SAME TITLE] AMENDMENT TO DECISION October 28, 1938 On October 21, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding. The Board hereby amends its Decision by deleting the word "Com- pany," immediately preceding the word "testified," in the third sen- tence of the first paragraph in part VI, entitled "The determination of representatives," and inserting in lieu thereof, the word "Amal- gamated," so that the entire sentence, as amended, will read as fol- lows: "The attorney for the Amalgamated testified that he knew, of his own knowledge, of 55 employees of the Company who authorized the Amalgamated to represent them for this purpose." Except as hereby amended, the Decision remains in full force and effect. 9 N. L. It. B., No. 40a. [SAME TITLE] CERTIFICATION OF REPRESENTATIVES November 08, 1938 On October •21, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled case. On October 28, 1938, the Board issued an amendment to the Decision. The Direction of Election provided that an election by secret ballot be conducted among all the production employees of A. Fink and Sons Co., Inc., Newark, New Jersey, who were listed on the pay roll of August 27, 1938, including employees DECISIONS AND ORDERS 447 listed under the "General Expense" department, and excluding work- ing foremen, office and clerical force, salesmen, packing and shipping employees, chauffeurs, garage employees, employees of the produce department engaged in, shipping functions, "Sayer and Company" employees, mechanics, engineers, firemen, employees in the print shop, students, demonstrators, extras, and first-aid men, and those employees who have since quit or been discharged for cause, to de- termine whether they wish to be represented by the Amalgamated Meat Cutters & Butcher Workmen of N. A., Local 422, A. F. of L., or by the Employees' Committee of A. Fink and Sons Co., Inc., for the purposes of collective bargaining, or by neither. Pursuant to the, Direction of Election, an election by secret ballot was conducted on November 3, 1938, under the direction and super- vision of the Regional Director for the Second Region (New York City). On November 4, 1938, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, issued and duly served upon the parties an Intermediate Report on the election. No objections or exceptions to the Intermediate Report have been filed by any of the parties. As to the balloting and its results, the Regional Director reported as follows : Total number eligible to vote------------------------------- 218 Total number of ballots cast -------------------------------- 205 Total number of ballots counted ---------------------------- 204 Total number of votes in favor of - Employees' Committee of A. Fink and Sons Co., Inc------ 135 Amalgamated Meat Cutters & Butcher Workmen of N. A, Local 422, A. F. of L-------------------------------- 68 Neither union------------------------------------------ 1 Total number of blank votes-------------------------------- 0 Total number of void ballots-------------------------------- 0 Total number of challenged votes---------------------------- 1 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Employees' Committee of A. Fink and Sons Co., Inc., has been designated and selected by a majority of all the production employees of A. Fink and Sons Co., Inc., Newark, New Jersey, including employees under the "General Expense" de- partment, and excluding working foremen, office and clerical force, salesmen, packing and shipping employees, chauffeurs, garage em- ployees, employees of the produce department engaged in shipping 448 NATIONAL LABOR RELATIONS BOARD functions, "Sayer and Company" employees, mechanics, engineers, firemen, employees in the print shop, students, demonstrators, extras, and first-aid men, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, the Em- ployees' Committee of A. Fink and Sons Co., Inc., is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 9 N. L. R. B., No. 40b.