Swift & Co.

In the Matter of SWIFT & Co. (UNITED DRESSED BEEF Co., J. J. HAR- RINGTON, N. Y. VEAL & MUTTON Co.) and COMMITTEE FOR INDUSTRIAL ORGANIZATION ON BEHALF OF THE EMPLOYEES OF SWIFT & CO ., et al. Case No. R-1158.Decided March, 6, 1939 Meat. Packing Industry Investigation of Representatives : controversy con- cerning representation of employees : rival organizations ; claims to represent substantial groups of employees ; stipulation that question concerning repre- sentation exists-Unit Appropriate tor Collective Bargaining : production and maintenance employees , excluding supervisors , office employees, plant clerks, and scalers ; stipulation as to ; truck drivers excluded at request of party to proceeding ; duties would permit inclusion if no objection ; schochtim excluded ; differences in work, compensation, and skill-Representatives : eligibility to participate in choice : stipulation as to-Election Ordered Mr. Martin Rose, for the Board. Mr. Lewis A. Ackley, of New York City, and Mr. W. N. Strack, of Chicago, Ill., for the Company. Liebman, Robbins, Pressman d Leider, of New York City, by Mr. Harold Cammer, for the United. Mr. Louis Waldman, of New York City, by Mr. David I. Ashe, for the Amalgamated. Mr. Emanuel Weintraub, of New York City, for the Council. Mr. Wendell P. Kay, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 14, 1937, the Committee for Industrial Organization, hereinafter referred to as the United," filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of the United Dressed Beef Company of New York,2 herein called the Company, at its New York City plant and The C. I. 0. has since chartered United Meat Workers Local Industrial Union No. 635 in this plant. The petition and some other pleadings incorrectly designated the Company. The record corrects the title. 11 N. L. R. B., No. 78. 950 SWIFT & CO. ET AL. 951 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 November 22, 1938, the National Labor Relations Board, hereinafter referred to as the Board, acting pursuant to Section 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 it and to provide for an appropriate hearing upon due notice. On December 10, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the United, upon the Packing House Workers, Local No. 5, of the Amalgamated Meat Cutters and Butcher Workmen of North America, affiliated with the A. F. of L., hereinafter referred to as the Amalgamated, and upon the Employees Council Union, herein- after referred to as the Council, the last two being labor organiza- tions claiming to represent employees directly affected by the investi- gation. Pursuant to the notice, a hearing was held on December 19, 1938, at New York City, before Howard Myers, the Trial Examiner duly designated by the Board. The Board, the Company, the United, the Amalgamated, and the Council, were represented by counsel and participated in the hearing. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing 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 1. THE BUSINESS OF THE COMPANY United Dressed Beef Company of New York, a New York cor- poration with its principal office and plant in New York City, is chiefly engaged in purchasing and slaughtering cattle, calves, sheep and lambs, and processing and selling the meats and meat products. J. J. Harrington & Company, and the New York Veal & Mutton Company, two New York corporations, are wholly owned subsidiaries of United Dressed Beef Company of New York. They are both in the process of dissolution as separate corporate entities, and they are now treated as functional divisions of the Company. Neither has any general office, clerical staff, pay roll, bookkeeping system, employ- 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment office, or labor policy apart from that of the Company. The Company is, in turn, a wholly owned subsidiary of Swift and Company, an Illinois corporation having its principal place of busi- ness in Chicago, Illinois. During its 1937 fiscal year the Company slaughtered 85,717 cattle weighing 94,407,019 pounds; 1,136,400 lambs weighing 91,123,583 pounds; and 192,279 calves weighing 37,607,810 pounds. In that period 93 per cent of the cattle, 95 per cent of the lambs, and 97 per cent of the calves were purchased and shipped to the plant from points outside the State of New York. During the first 6 months of 1938, the Company slaughtered 45,669 cattle weighing 50,407,347 pounds; 635,346 lambs weighing 53,367,962 pounds; and 101,879 calves weighing 18,259,652 pounds; of which 95 per cent, 96 per cent, and 99 per cent, respectively, came to the plant from points outside the State of New York. The Company sold 29 440,636 pounds of meat and byproducts from July 1, 1937, to June 30, 1938, approxi- mately 25 per cent of which were shipped by rail and truck to points outside New York State. II. THE ORGANIZATIONS INVOLVED United Meat Workers Local Industrial Union No. 635 is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership production and maintenance employees at the New York City plant of the Company, excluding supervisors, office workers, scalers, plant clerks, schochtim, and chauffeurs. Amalgamated Meat Cutters and Butcher Workmen of North America is a labor organization affiliated with the American Fed- eration of Labor. It admits to membership employees of the Com- pany at the New York City plant other than supervisors, office em- ployees, plant clerks, scalers, salesmen, managerial employees, and executives. Employees Council Union is an unaffiliated labor organization, ad- mitting to membership all employees at the New York City plant of the Company, excluding supervisors, office workers, salesmen, clerks, and scalers. III. THE QUESTION CONCERNING REPRESENTATION In a consent election held under the auspices of the Regional Director on May 21, 1937, in which the Council and the Amalgamated appeared on the ballot, the Council received a majority of the votes cast. On September 28, 1937, the Company recognized the Council as sole agency for collective bargaining for a period of a year. No contract with the Council has been signed. SWIFT & CO. ET AL. 953 Despite recognition of the Council, a substantial number of the Company's employees have retained membership in the Amal- gamated. Since June 1937, the United has carried on a membership campaign at the Company's plant, and the record shows that ap- proximately 150 employees have signed membership application cards. Each organization now claims to represent a substantial number of the Company's employees. We find that a question has arisen concerning the representation of employees of the Company's 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 stipulated at the hearing that all production and mainte- nance employees, excluding supervisory employees, office employees, plant clerks, and scalers, constitute a unit appropriate for the purpose of collective bargaining. This agreement was without prejudice, how- ever, to rights of the parties to contest the issue as to whether truck drivers (chauffeurs), schochtim employees, and female employees in the sheep-casing department should also be excluded from the ap- propriate unit, as urged by the United. The Amalgamated, the Council, and the Company maintain that these classes of employees should be included in the unit. Truck drivers: These 81 employees distribute the product to the retail markets by truck. The United seeks exclusion of the truck drivers from the appro- priate unit on the ground that substantial differences in compensation and conditions of employment distinguish the interests of the drivers from those of the general production and maintenance employees, and because the United has an, agreement with the International Brother- hood of Teamsters, affiliated with the American Federation of Labor, that the United will not attempt to organize truck drivers. 8 Paragraph 4 of a stipulation agreed upon by all parties, at pages 4 to 6 of the record states, "There is a question concerning representation of the employees of the Company, and an election should be held." 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record shows that the drivers' work is necessarily largely performed outside the plant and is different in nature from that of the production and maintenance men. The Bedeaux system, appli- cable to the production employees generally, does not apply to the drivers. Their rate of compensation is well above the plant average, and they are paid on a weekly basis rather than by the hour. Due to the fact that they often handle money in the course of their employ- ment, they are bonded. In support of its contention that these employees should be included in the unit, the Company points out that because the drivers must be well versed in the varieties of meat which they distribute, they are promoted from the ranks of the production employees. Under the plant seniority rule, they are sometimes put back into production in slack periods. The Company maintains that the truck drivers have the same rights concerning seniority, vacations, sickness, pensions, and weekly guarantee as other production workers. However, the record shows that, in general, similar rights are held by office workers and supervisory officials-classes of employees clearly not within the appropriate unit. The Council urges inclusion of the drivers in the unit on the grounds that the drivers participated in the former election, that many are Council members, and that the Council has bargained on their behalf. No specific instances of bargaining by the Council on behalf of the drivers appear in the record. The president of the Council testified that the Council had established a procedure for handling grievances and had met with the management on several occasions "in straighten- ing out conditions of employment." There is no evidence of any at- tempt by the Council to negotiate a contract with the Company, and no such contract has been obtained. The drivers are eligible for mem- bership in the Amalgamated, which also desires their inclusion, al- though there is evidence that the Amalgamated intends to transfer them to the International Brotherhood of Teamsters, the group within the American Federation of Labor having appropriate jurisdiction. From all the evidence, we are of the opinion that these employees could appropriately be included in a production and maintenance unit in the absence of any objection by a labor organization which is a party to the proceeding. We are also of the opinion, however, that they have a sufficiently different status by reason of their duties and their higher compensation, so that, in the absence of a more definite history of collective bargaining on their behalf, they should not be included in a unit with the other employees when one of the rival labor organizations objects, as here, to such inclusion.4 We shall 4 See Matter of Armour & Company and Amalgamated Meat Cutters and Butcher Work- men of North America, Local 235, 10 N. L It . B. 912. SWIFT & CO. ET AL. 955 therefore exclude the truck drivers from the unit found to be appropriate herein.5 Sch,ochtim: 6 These employees, 51 in number, do all the killing of livestock at the Company's plant. They are paid on a per head basis (also dependent upon the percentage of animals passed as kosher), and are not subject to the Bedeaux system. Their rights as to seniority, vacations, sickness and accident, pensions and weekly guarantee are the same as other production employees, under the Company's present labor policy. The schochtim receive a substantially higher rate of compensation than the general production and mainte- nance employees. A large part of the duties of the schochtim are governed by their religion. They are employed through a board of Rabbis, after religious training, are supervised by a head schochet, and their decision as to whether the animals slaughtered are kosher or not is final. Although both the Amalgamated and the Council accept schochtim as members, it appears that no schochtim at the Company's plant have affiliated with either organization. The United does not accept schochtim as members and desires to exclude them from the unit, pointing to the characteristics above which disassociate their inter- ests from the production and maintenance employees. Differences in the nature of the work performed, in their compensation, in their skill, and in their status in the plant, all combine to set the schochtim apart from general production and maintenance employees. There- fore we shall exclude schochtim from the unit 7 Female employees of the Sheep Casing Department: No substantial reason appears for excluding these female employees from the unit found to be appropriate herein. Their work and conditions of em- ployment are similar to those of other employees of the casing depart- ment. We therefore find that all production and maintenance employees of United Dressed Beef Company of New York, including the J. J. 5 Truck drivers ( chauffeurs or teamsters ) have often been excluded by the Board from units of production and maintenance employees . Matter of Cudahy Packing Company and Packing House Workers Union Local No 5, Amalgamated Meat Cutters and Butcher Work- men of North America, 4 N L R B 39; Matter of Todd Shipyards Corporation, Robins Dry Dock and Repair Co , and Tiet)en and Lang Dry Dock Co and Industrial Union of Marine and Shipbuilding Workers of America, 5 N. L R B . 20; Matter of John Minder and Son, Inc. and Butchers Union, Local No. 174 , 6 N. L R. B 764 ; Matter of Armour & Company and United Packing House Workers Industrial Local Union No. 389 Affiliated with C I. 0., 7 N. L R. B 710; Matter of Armour & Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No 235, 10 N L R. B. 912 5 "Schochtun" is a Hebrew term describing persons who slaughter livestock in accordance with the Hebrew ritual for the preparation of kosher meats 7 Schochtim were excluded from industrial units In Matter of Danahy Packing Company, Klinck ' I'acking Company, Inc, Jacob Dold Packing Company and United Butchers, Meat Cutters and Packers Local 105, 3 N. L. R B. 354 ; Matter of Wilson & Co. and United Meat Workers Local Industrial Union No. 635, affiliated with the Committee for Industrial Organization, 9 N. L. R B. 650 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harrington and New York Veal & Mutton Company divisions, at the plant at First Avenue, 43rd and 44th Streets, New York City, excluding supervisory employees, office employees, plant clerks, scal- ers, truck drivers, and schochtim employees, constitute a unit ap- propriate for the purposes of collective bargaining and that said unit will insure to the 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 None of the three organizations here involved produced any proof at the hearing to show how many of the Company's employees it represented, although each claimed to represent a majority. We accordingly find that an election by secret ballot is necessary to resolve the question concerning representation. All parties at the hearing stipulated that: In the event that the National Labor Relations Board directs an election herein, the eligibility list shall consist of all em- ployees in the unit found appropriate by the Board on the pay roll of said company at its plant on December 17, 1938, and continuously and regularly employed at full time for thirty- seven working days, immediately preceding December 17, 1938. Such employees who have been on sick leave, temporary leave of absence, vacation, or temporarily laid off by said companies for lack of work at any time during said thirty-seven working days period, shall be included in the eligible list, provided, however, they have been continuously and regularly employed at full time for a period of at least thirty working days, immediately preced- ing such sick leave, temporary leave of absence, vacation, or temporary lay-off. The date of December 10, 1938, was later substituted for December 17, 1938, by stipulation of the parties. The Company's pay roll for that date was introduced in evidence.8 We see no reason to depart from the wishes of the parties in this respect and shall direct accordingly. Upon the basis of the above findings of fact and the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the em- ployees of the Company at its New York City plant, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All production and maintenance employees of the Company at its New York City plant, excluding supervisory employees, office *Board Exhibit No. 11. SWIFT & CO. ET AL. 957 employees, plant clerks, scalers, truck drivers, and schochtim em- ployees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the 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 Rela- tions 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with United Dressed Beef Company of New York, 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 Director for the Second Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Sec- tion 9, of said Rules and Regulations-Series 1, as amended, among all production and maintenance employees of the Company at its New York City plant on the pay roll on December 10, 1938, and continuously and regularly employed at full time for 37 working days immediately preceding December 10, 1938, including employees who have been on sick leave, temporary leave of absence, vacation, or temporarily laid off for lack of work during each 37 working days' period providing they have been continuously and regularly employed at full time for a period of at least 30 working days immediately preceding such sick leave, temporary leave of absence, vacation, or temporary lay-off, excluding supervisory employees, office employees, plant clerks, scalers, truck drivers, and schochtim employees, and excluding also employees who have since quit or been discharged for cause, to determine whether they wish to be represented by United Meat Workers Local Industrial Union No. 635, affiliated with the Committee' for Industrial Organiza- tion, or by Amalgamated Meat Cutters and' Butcher Workmen of North America, affiliated with the American Federation of Labor, or by Employees Council Union, for the purposes of collective bargaining, or by none of them.