Swift & Co.

In the Matter of Swwr & Co . (FONTANA PLANT) and MEAT CUTTERS LocAL No. 439, AFL Case No. R-5518.-Decided July $,1943 Gibson, Dunn cC Crutclier, by Mr. J. Stuart Neary, all of Los Angeles, Calif., for the Company. Mr. James A. Garrow, of Pasadena, Calif., and Mr. John C. Pack- ard, of Los Angeles, Calif., for the AFL. Messrs. Charles J. Katz and A. J. Shippey, both of Los Angeles, Calif., for the CIO. Mr. Glenn L. Moller, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE' CASE Upon a petition duly filed by Meat Cutters Local No. ' 439, AFL, herein called the AFL, alleging that a question affecting commerce had arisen concerning the representation of employees of Swift & Company (Fontana Plant), Fontana, California, herein called the Company, the National Labor Relations Board provided for an ap- propriate hearing,upon due notice before William B. Esterman, Trial Examiner. Said hearing was held at San Bernardino, California, on June 9, 1943. The Company, the AFL, and United Packinghouse Workers of America, Local Union No. 144, CIO, herein called the CIO, appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On June 23, 1943, the parties filed a stipulation correcting certain errors in the record. These corrections are hereby noted and ap- proved. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : 51 N. L. R. B., No. 6. 24 SWIFT & CO. FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 25 Swift & Company, an Illinois corporation, owns and operates, either directly or through subsidiaries, numerous production plants and distributing branches in many States of the United States. Among the Company's operations is a poultry and dairy branch at Fontana, California, where the Company purchases and raises poul- try and eggs for resale. During the 12 months ending October 29, 1942, the Fontana plant purchased approximately 5,000,000 pounds of poultry and eggs, approximately 15 percent of which was shipped to said plant from points outside the State of California. During the same period, the Fontana plant sold and distributed products valued at more than $1,000,000, approximately 5 percent of which was sold to and shipped to customers outside the State of California. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 439, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Company. United Packinghouse Workers of America, Local Union No. 144, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the AFL as the exclusive bargaining representative of the employees at its Fontana plant until the AFL has been certified by the Board in an appropriate unit. The CIO contends that its contract with the Company constitutes a bar to this proceeding. The contract was executed on May 7, 1942, and was to be in effect for a period of 1 year, being terminable thereafter on 30 days' notice by either party. No notice has been given. Since it is now terminable at will, we find that the contract is not a bar to a present determination of representatives. A statement of a Field Examiner for the Board, introduced into evidence at the hearing, indicates that AFL represents a substantial number of employees in the unit hereinafter found appropriate." 1 The Field Examiner reported that the AFL submitted 71 authorization cards, 46 of which bore apparently genuine signatures of persons listed on the Company's pay roll of May 20, 1943, which contained the names of 84 employees in the appropriate unit. 26 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. SHE APPROPRIATE UNIT The AFL seeks a unit consisting of all employees of the Company at its Fontana plant, excluding office and clerical workers and the superintendent or manager of the plant. The Company and the CIO contends that there should also be excluded from the bargaining unit all department supervisors or salaried supervisory employees. The AFL wishes to include this group in the appropriate unit on the ground that they are working foremen. The Fontana plant, at present, has five operating departments and is contemplating the addition of several more. At the head of each department are supervisors who have complete charge of their depart- ments and are responsible for quantity and quality of the work of their subordinates. They keep time records and other data relating to the efficiency of their subordinates and make recommendations to the general foreman or plant superintendent regarding the hire, discharge, promotion, discipline, or reclassification of their subordinates. It is our established policy to exclude supervisors such as those here involved from units of production employees. They will be excluded from the appropriate unit. We find that all employees of the Company's Fontana plant, ex- cluding office and clerical workers, the plant manager or superintend- ent, the general foreman, department supervisors, and any other supervisory employees who have authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, 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 the 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. 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 Re- SWIFT & Co. 27 lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Swift & Com- pany, (Fontana Plant), Fontana, California, 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 Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among the 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, to determine whether they desire to be repre- sented by Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 439, affiliated with the American Federa- tion of Labor, or by United Packinghouse Workers of America, Local Union PTo. 144, affiliated with the Congress of Industrial Organ- izations, for the purposes of collective bargaining, or by neither.