Dallas City Packing Co.

DALLAS CITY PACKING COMPANY 63 that Divoll possesses the attributes of a supervisor described in Sec-. tion 2 (11) of the Act. Accordingly, as it appears that Divoll spends a substantial portion of his time selling automobiles, we shall include him in the unit.? We find that all new and used car salesmen at the Employer's Denver, Colorado, establishment, excluding all other employees, office clerical employees, service salesmen, parts and accessories salesmen, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBER LEEDOM* took no part in the consideration of the above, Decision and Direction of Election. 7 As we do not rely on appendix A of the Petitioner's brief in determining the unit place- ment of Herbert Divoll, it is unnecessary for us to rule on the Employer's motion to strike that portion of the Petitioner's brief. Dallas City Packing Company and Local 528, Amalgamated Meat, Cutters and Butcher Workmen of North America, AFL. Case No. 16-CA-791. April 8,1955 DECISION AND ORDER On February 9, 1955, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the additions and modifications noted below : 1. The Respondent is engaged, at Dallas, Texas, in the slaughtering of cattle and hogs and the sale and distribution of beef and pork prod- ucts. During 1954 it purchased more than $4,000,000 worth of live- stock all from within the State of Texas and it purchased $18,000 worth of spices which was shipped to its plant from outside the State. 112 NLRB No. 12. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the same period, it sold products valued in excess of $5,000,000 all of which were sold to customers within Texas except about $200,000 worth of hides which were sold and shipped to customers outside Texas. The Respondent contends that because its only out-of-State ship- ments consist of hides, which are a byproduct of its meat packing busi- ness, the Board does not have jurisdiction herein. We do not agree. Although the hides are a byproduct of the Respondent's principal operation, this fact alone does not prevent the Board from considering for jurisdictional purposes the sale of a byproduct in relation to the total commerce of an employer. I Furthermore, where a subsidiary and related process constitutes an integral part of the main operation, the Board has viewed the entire operation as the basis for applying its jurisdictional standards. 2 In so doing, the Board has asserted juris- diction, even though the necessary volume of commerce has been sup- plied primarily through the subsidiary operation.' In applying the foregoing principle to the instant proceeding, we think it clear that the Respondent's hide operation constitutes the initial step and therefore an integral part of its principal meat pack- ing business at the Dallas City plant. Therefore, as the Respondent during 1954 shipped from its Dallas City plant about $200,000 worth of products (hides) outside the State of Texas, we find, as did the Trial Examiner, that the Respondent is engaged in commerce within the meaning of the Act and further that such commerce satisfies the Board's requirement for the assertion of jurisdiction. 4 . 2. The Respondent contends that the Board acted arbitrarily and capriciously by refusing to set aside the representation election in- volved herein and that the Board also violated the Fifth Amendment by refusing to grant a hearing on the issues raised by the Respondent's exceptions to the Regional Director's report on the conduct of the elec- tion. In its supplemental decision, 5 the Board found, under estab- lished Board precedents, that the Respondent's objections and its ex- ceptions to the Regional Director's report on conduct of the election raised no substantial or material issues. Accordingly, the Board de- i Simplot Fertilizer Company, 100 NLRB 771; see Consumers Power Co v N L R. B , 113 F. 2d 38 ( C. A 6). The cases Schechter Poultry Corporation v. United States, 295 U. S. 495; N. L. R . B. v. Shawnee Milling Company , d/h/a Pauls Valley Milling Company, 184 F. 2d 57 (C. A. 10) ; N. L R. B. v. Santa Cruz Fruit Packing Co, 91 F. 2d 790 (C A. 9), which are relied on by the Respondent , are inapplicable as they are distinguishable on their facts 2 Simplot Fertilizer Company, supra The integrated nature of the hide and meat pack- ing operations is indicated by the fact that both operations are conducted in adjacent buildings under the same immediate supervision and that the single hide employee would appear to be included in the unit established for the production and maintenance employees at the Dallas City plant. (3 M & F Distributing Company, 97 NLRB 999. 4 Jonesboro Grain Drying Cooperative, 110 NLRB 481. 5 Dallas City Packing Company, 110 NLRB 8. DALLAS CITY PACKING COMPANY 65 clined to order a hearing or set the election aside, and certified the Union. We hereby reaffirm our supplemental decision in the repre- sentation proceeding and find no merit in the Respondent's present contentions. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent, Dallas City Packing Company, its officers, agents, successors, and assigns, shall 1. Cease and desist from : (a) Refusing to bargain collectively with Local 528, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, as the exclusive representative of all employees in the appropriate unit, with respect to rates of pay, wages, hours of employment, and other con- ditions of employment. (b) In any manner interfering with the efforts of the above-named labor organization to bargain collectively with the Respondent on be- half of the employees in the appropriate unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of all employees in the appropriate unit, and embody any understanding reached in a signed agreement. (b) Post at its place of business in Dallas, Texas, copies of the notice attached hereto and marked "Appendix." 6 Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted immediately upon receipt thereof, in conspicuous places, in- eluding all places where notices to employees are customarily posted, and maintained by it for at least sixty (60) consecutive days there- after. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other ma- terial. (c) Notify the Regional Director for the Sixteenth Region, in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply therewith. MEMBER LEEDOM took no part in the consideration of the above De- cision and Order. 6In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL bargain collectively upon request with Local 528, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, as the exclusive representative of all employees in the bargaining unit described below, with respect to grievances, labor disputes, wages, rates of pay, hours of employment and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargain- ing unit is: All production and maintenance employees, including jani- tors, porters, cleanup men, and truckdrivers, but excluding office clericals, outside salesmen, cattle buyers, professional employees, guards, watchmen, working foremen, plant manager, superintendent, partners, and all other supervisors as defined in the Act. WE WILL NOT in any manner interfere with the efforts of the above-named labor organization to bargain collectively with us, or refuse to bargain with it, as the exclusive representative of all our employees in the bargaining unit set forth above. DALLAS CITY PACKING COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been duly filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent, a hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1) and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in Dallas, Texas, on January 25, 1955, before the duly desig- nated Trial Examiner. In substance , the complaint alleges and the answer admits that since on or about November 22, 1954, the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in a unit found by the Board to be appropriate . The complaint further alleges and the answer denies that the Respondent, by such refusal , has interfered with, restrained , and coerced employees in the exercise of rights guaranteed by the Act. At the hearing all parties were represented , were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs. Argument and the filing of briefs were waived. DALLAS CITY PACKING COMPANY 67 Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Dallas City Packing Company is a copartnership composed of Milton Rubin, Rose Rubin , Herman Waldman, and Bernice Rubin Waldman, doing business under that trade name by virtue of the laws of Texas, with its principal office and plant in Dallas, Texas, where it is engaged in the slaughtering of cattle and the manufacture, sale, and distribution of beef and pork products. In the course of its business, during the year 1954, it purchased livestock, cattle, and hogs valued at more than $4,000,000. During this period it purchased spices and other materials valued at about $ 18,000 which were shipped in interstate commerce to its Dallas plant. During the same period it sold products valued at more than $5,000,000, of which total about 4 percent in value was shipped in interstate commerce from its Dallas plant to points outside the State of Texas. Despite the Respondent's contention to the contrary, it is found that it is engaged in commerce within the meaning of the Act.' II. THE LABOR ORGANIZATION INVOLVED Local 528, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, is a labor organization admitting to membership employees of the Respondent at its Dallas plant. III. THE UNFAIR LABOR PRACTICES Following a Board election the Board found, on September 21, 1954, in its Sup- plemental Decision and Certification of Representatives of that date, that the above- named Union is the exclusive representative of all the employees in an appropriate unit for the purposes of collective bargaining. That unit was described in its pre- viously issued Direction of Election as: All production and maintenance employees of the Employer at its Dallas, Texas, plant including janitors, porters, cleanup men, and truckdrivers , but ex- cluding office clericals, outside salesmen, cattle buyers, professional employees, guards, watchmen, working foremen, plant manager, superintendent, partners, and all other supervisors as defined in the Act. In its answer the Respondent admits the appropriateness of the unit. On November 19, 1954, after the certification, a representative of the Union telephoned to one of the Respondent's partners , Herman Waldman , and asked for a meeting to negotiate a contract . Waldman said he wished first to consult with his counsel . On November 22, Waldman sent the following letter to the Union: It has been our position all along that the election was invalid , and that you are not the bargaining representative of our employees. The National Labor Relations Board has refused to set aside the election. We are advised that we cannot appeal from this order to the courts. Since we are firmly of the belief that the board has erred not only as set out above but because we are not under their jurisdiction we must respectfully decline to bargain with you. The' foregoing letter, as well as the admission in the answer , establishes and it is found that since November 22, 1954, the Respondent has refused to bargain with the Charging Union. It appears needless here to describe the Respondent 's dispute with the Board. The Board is obviously aware of its own rulings in the representation case, and the i In its Decision and Direction of Election , issued June 22, 1954, in Case No. 16-RC-1458, the Board found that the sane "Employer is engaged in coninierce within the meaning of the National Labor Relations Act " At the hearing in this case, the Respondent contended, in effect , (1) that only hides, a claimed byproduct, were shipped outside the State of Texas ; (2) only one individual , in a sepaiate building , handles the hides ; and (3 ) that because of this situation the Respondent may not be held to be engaged in commerce Other con- vincing evidence , however, establishes clearly that the cattle do not arrive at the Respond- ent's plant with their hides already detached , for ininiediate storing in a separate building Several employees actually take part in the process of removing and storing those hides for shipment 369028-56-vol 112- 6 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner clearly is not empowered to overrule such rulings. No new issue was raised at the hearing before the Trial Examiner which , so far as the documents in evidence show, has not already been considered and passed upon by the Board. The Trial Examiner therefore concludes and finds that since November 22, 1954, the Respondent has refused to bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and that by such refusal it has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has engaged in the unfair labor practice of refusing to bargain collectively with the chosen representative of its employees. It will therefore be recommended that it cease and desist therefrom and from like and related conduct. It will be further recommended that the Respondent bargain collectively, upon request , with the Union as the exclusive representative of its employees in the aforesaid appropriate unit. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 528, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the Respondent at its Dallas, Texas, plant, including janitors, porters, cleanup men, and truckdrivers , but exclud- ing office clericals, outside salesmen, cattle buyers, professional employees , guards, watchmen, working foremen , plant manager, superintendent , partners, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act. 3. Local 528, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, was, on November 19, 1954, and at all times since then has been, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on and after November 22, 1954, to bargain collectively with the aforesaid Union as the exclusive representative of all employees in the appropri- ate unit, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a) (5) of the Act. 5. By the aforesaid unfair labor practice , the Respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act, thereby engaging in an unfair labor practice within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Latrobe Foundry Machine & Supply Co. and United Electrical, Radio & Machine Workers of America (UE), Petitioner. Case No. 6-RC-1515. April 8, 1955 ORDER On March 18, 1955, the Board issued a Decision and Direction of Election i in the above-entitled proceeding. Thereafter, on March 1 111 NLRB 1010. 112 NLRB No. 22.