Swift & Co.

752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As we have sustained the challenge to 1 of the 2 challenged bal- lots and have overruled the challenge to the other ballot and as the outcome of the election depends on the consideration of such ballot, we direct that the ballot of Byron Abbott be opened and counted. [The Board directed that the Regional Director for the Fifth Region shall, within ten (10) days from the date of this Direction, ,open and count the ballot of Byron Abbott, prepare and cause to be served upon the parties a supplemental tally of ballots, including therein the count of the ballot described above, and further proceed in accordance with the provisions of Sections 102.61 and 102.62 of the National Labor Relations Board's Rules and Regulations.] Swift & Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 615, AFL-CIO and General Drivers, Helpers and Inside Employees Union No . 329, AFL- CIO, Joint-Petitioners. Case No. 18-RC-92639. March 9, 1956 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clarence A. Meter, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the represen tation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Employer is an Illinois corporation with the main office in Chicago, Illinois, engaged in the sale and distribution of meat prod- ucts and dairy and poultry products with places of business located in many of the States. This proceeding involves the Employer's op- eration located at Sauk Centre, Minnesota. The Petitioners and the Employer agree substantially on the ap- propriateness of a production and maintenance unit. They differ as to the inclusion of the procurement route drivers, the Employe urging that they should be excluded from the plant unit or placed in a sep- arate bargaining u4it because of the laoh of a community of interest with the production employees. The Petitioners desire the inchi.$ion of the procurement drivers in the plant unit, but stated at the he*ring 115 NLRB No. 105. SWIFT & COMPANY 753 that if a separate unit was found appropriate, they, desired to,appear on the ballot as joint petitioners for each unit. The Employer depends primarily on-independent dealers to furnish the Sauk Centre plant with, poultry and' eggs. ' r The .procurement drivers, whose unit placement is in dispute, call on these dealers every other day and buy produce from them. Each day the price is set. by the-Employer as to the approximate amount that should be paid for supplies, and any radical change in the New York market during the day is communicated to the drivers., It. is, the responsibility of these drivers to keep the supplies, i. e.,- poultry and eggs coming into the plant. Consequently, they are continually trying to locate new sources of supply along their route. They weigh, grade; 'and pay .for- the poultry; usually eggs are not paid for until they have been inspected at the plant. Procurement drivers,must constantly be alert as tq the activity of competitors, as they may find it necessary. to increase the price in order to retain their suppliers. In such instances, they must be able to exercise independent judgment-to evaluate properly the produce and determine whether the 'Employer can afford to meet the competitor's offer in view of the need of produce at the plant and the current market price. , The procurement drivers are responsible directly to the manager, who is in charge of procurement, whereas production employees are under the supervision of the plant superintendent. There is very little contact between the 2 groups as the drivers. are at .the plant only for the time required to load and, unload their trucks,and prepare their reports-not more than 20 percent of, the time. Procurement drivers have irregular hours, depending on the length of their routes, and their hourly rate of pay is higher than ,that of production employees. The next step in progression for them would be to the position of fieldman, then to manager. , The Board has recognized that individuals who spend a substantial part of their time making purchases for 'an employer's account are representatives of management.' The fundamental duty'-of the pro- curement drivers in this case is to make purchases of produce for the Employer. In so doing they exercise a managerial prerogative. Ac- cordingly, we find that the interest's of the procurement drivers'are allied with management and exclude them from the production -and maintenance unit herein found appropriate. The Petitioners in their alternative request seek a unit of procure- ment drivers who we have found are representatives of management. We are of the opinion that such a unit is not appropriate. It ' was the clear intent of Congress to exclude from the coverage of, the Act See Sunnyland Packing Company and Sunnyland Poultry Company, 113 NLRB 162, Parrot Packing Company, 112 NLRB 1432; Wilson & Co, Inc., 111 NLRB 1011. 890609-56-vol. 115-49 754 DECISIONS OF NATIONAL LABOR `RELATIONS BOARD all individuals allied with nlanagement.3 Such individuals cannot be deemed to be employees for the purposes of the Act. Accordingly, we reaffirm the Board's position that representatives of management may not be accorded bargaining rights under the Act,3 and deny the Peti- tioners' alternative request. The following employees constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of'Section 9 (b) of the Act.: All production and maintenance employees in the Employer's dairy and poultry plant located at Sauk Centre, Minnesota, excluding all office clerical employees, sales employees, professional employees, pro- 'curement drivers, guards, and supervisors as defined in the Act. 5. The petition in this case was filed jointly by the Petitioners. The Employer moved for dismissal on the grounds that the Board was without jurisdiction to entertain a joint petition and that in this in- stance a joint petition was improper. In support of its motion to dis- miss the Employer introduced as its exhibit a copy of an agreement between the two Petitioners` clearly defining the jurisdiction of each union to the exclusion of the other. The president of one of the-Peti- tioners testified that much leeway was given local unions and that these joint petitioners felt that they could continue to join in organ- izational work contracts and enter into contracts with the Employers drawing no jurisdictional lines. He stated, further, that the Peti- tioners intended to bargain jointly for the entire unit as one group. There is no evidence to support the contention that the Petitioners will not bargain on a joint basis for the unit herein found appropri- ate. We deny the motion to dismiss 4 The names of the Petitioners will appear jointly on the ballots, and, if they are successful in the election hereinafter directed, they will be certified jointly as the bar- gaining representative of the employees in the appropriate unit. The Employer may then insist that the Petitioners bargain jointly for such employees as a single unit. [Text of Direction of Election omitted from publication.] MEMBER PETERSON, dissenting : I am of the opinion that the procurement drivers here involved do not fall within the category of managerial employees of the type cus- tomarily excluded from bargaining units by the Board. In the buy- ing of poultry and eggs, these employees may, for the most part, offer only prices predetermined by the Employer. Although on occasion they are permitted to deviate from such regular price scales, they may 2 See Section 2 (2) and (3) of the Act; 93 Cong. Rec. 6442 (1947). 3Anmerican Locomotive Company, Alco Products Division, 92 NLRB 115, 116. See also Curtiss-Wright Corporation, Metal Processing Division, 103 NLRB 458, 464. d See Swift and Company, 114 NLRB 159, and cases cited therein ; Webb-Linn Printing Company, 95 NLRB 1488; Welding Shipyards, Inc., $1 NLRB 936. SWIFT & COMPANY 755 do so only under special circumstances and within very narrow limits. Thus, in pledging the credit of their Employer, the discretion exer- cised by the procurement drivers is restricted to a very small area. I would find, therefore, that they are not so closely allied to manage- ment as to preclude their inclusion in the unit of production and main- tenance employees herein found appropriate. Swift & Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 615, AFL-CIO and Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, Local 758, Joint-Petitioners. Cases Nos. 18-RC-2616 and 18-RC--P622. March 9, 1956 DECISION AND DIRECTION OF ELECTIONS Upon consolidated petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hjalmar Storlie, hearing officer. The hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A- question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1)andSection 2 (6) and (7) of the Act. 4:'The Employer is an Illinois corporation with its main office in Chicago, Illinois, and is engaged in the sale and distribtuion of meat, meat products, dairy, and poultry products. It has various places of business located throughout the United States. The two cases consolidated herein, deal with the dairy and poultry operations located atDetroit Lakes, Minnesota (Case No. 18-RC-2616) and Montevideo, Minnesota (Case No. 18-RC-2622). At each of the plants the Petitioners seek a separate unit of production and mainte- nance employees. The parties are in general agreement as to the composition of the unit, but disagree as to unit placement of pro- curement route drivers and seasonal employees. The procurement drivers, in a prescribed territory, maintain corr- tact with and purchase poultry from proprietors of buying stations and farmer-producers, and haul the poultry back to the plant on their trucks. They make preliminary decisions with respect to grading and pricing. They represent the Employer in the purchase, pickup, and issuance of credits, to those from whom they buy poultry. In another 115 NLRB No. 113.