Cudahy Packing Company

In the Matter of CUDAHY PACKING COMPANY and UNITED PACKING HOUSE WORKERS , LOCAL INDUSTRIAL UNION, 756 Case No. R-863.Decided August 5, 1939 Meat Packing Industry-Investigation of Representatives : controversy con-. cerning representation : employer refuses to recognize Union ; exclusive bargain- ing contract with company-dominated union, no bar to investigation ; refusal to recognize because of such contract-Unit Appropriate for Collective Bargaining: production and maintenance employees at plant involved including salaried and sanitation gang, but excluding supervisory employees, office clerical employees, salaried plant clerks, draftsmen , watchmen, cafeteria employees, and persons employed on special construction projects-Election Ordered: eligibility to vote being determined by pay roll next preceding Direction of Election ; earlier date suggested by union not used because it was too remote. Mr. Thurlow Smoot, for the Board. Mr. E. S. Springer, of St.'Pauli Minn., and Mr. Thomas Creigh, of Chicago, Ill., for the respondent. Mr. Ralph Helstein, of Minneapolis, Minn., for the United. Mr. l'Pilliam C. Green, of St. Paul, Minn., for the Independent Union. Mr. Roman Beck, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 2, 1938, United Packing House Workers, Local Industrial Union, 756, herein called the United, filed with the Regional Director for the Eighteenth Region (Minneapolis, Minnesota) a petition alleg- ing that a question affecting commerce had arisen concerning the rep- resentation of employees of Cudahy Packing Company, Newport, Minnesota,' herein called the Company, and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 14, 1938, the National Labor Relations Board, herein called The address of the Company was incorrectly stated in the petition ; the correct address is given in the amended petition. 14 N. L. R. B., No. 17. 244 CUDAHY PACKING COMPANY 245 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, is amended, ordered in investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On May 11, 1938, the United States Circuit Court of Appeals for the Eighth Circuit denied an application by the Company to restrain the Board from proceeding with the investiga- tion pending the determination of its petition to set aside the Decision and Order of the Board in Matter of The Cudahy Packing Company and I'aekingh-ou.ae Workers Local, Industrial Union, No. 62, etc., 5 N. L. R. B. 472. In that proceeding the Board found that the Company had dominated Packing House Workers' Union of St. Paul, herein called the Independent Union, and ordered it to withdraw all recognition from the Independent Union, and completely disestablish it as repre- sentative of its employees. Thereafter, on March 27, 1939, the Cir- cuit Court affirmed the Order of the Board. Cudahy Packing Com- pany v. National Labor Relations Board, 102 F. (2d) 745. On May 2, 1938, the Regional Director issued a notice of hearing, copies of which were duly s'erved' upon the Company and upon: the United. Pursuant to the notice, a hearing was held on May 12 and 13, 1938, at St. Paul, Minnesota, before J. J. Fitzpatrick, the Trial Exam- iner duly designated by the Board. The Board, the Company, and the United were represented by counsel and participated in the hear- ing. At the opening of the hearing the Company filed an answer to the petition which alleged that there was a defect of parties in that the Independent. Union, a labor organization purporting to represent em- ployees directly affected by the investigation, had not been named in the. petition or given notice of the hearing. The Independent Union, however, appeared by counsel and -moved to intervene, but the Trial Examiner denied its motion upon the ground that the Board had found that it was company dominated. On May 24, 1938, the Board at the request of the Independent Union reviewed this ruling and granted the application to intervene, reopened the record and directed the Regional Director to provide for a further hearing upon due notice. On June 7, 1938, the Regional Director issued a notice of further hearing, copies of which were duly served upon the Company, upon the United, and upon the Independent Union. Pursuant to the notice, a further hearing was held on June 27. and 28, 1938, at St. Paul, Min- nesota, before Lawrence J. Kosters, the Trial Examiner duly desig- nated by the Board. The Board, the Company, the United and the Independent Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD afforded the parties at each hearing.2 During the course of each hear- ing the Trial Examiner made several rulings on motions and on objec- tions to the admission of evidence. The Board has reviewed the rul= ings of the Trial Examiners and except as noted above finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the second hearing the Independent Union moved that it be certified as the bargaining representative of the employees in the appropriate unit or, in the alternative, that the proceeding be dis- missed. As a further alternative the Independent Union moved that its name appear on the ballot if the Board should order an election. The Trial Examiner denied the motion to dismiss but did not pass upon the other motions. In view of the order of the Board requiring the Company to withdraw recognition from the Independent Union as-a bargaining representative of,its employees, the motions of the Independent Union to appear on the ballot and for certification are hereby denied.3 At the close of each hearing the Trial Examiners informed the parties of their right to request oral argument before the Board in Washington, D. C., but none of them availed itself of that opportunity: The Independent Union, however, submitted a brief which the Board has considered. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Cudahy Packing Company is a Maine corporation having its principal executive office at Chicago, Illinois. It is chiefly engaged in the purchase and slaughter of livestock and the processing and mar- keting of meat products.' The Company transacts business through out the United States and in many foreign countries.' We have pre= viously considered the extensive character of its business.4 During its fiscal year ending in 1936 the Company's sales exceeded $200,000,000: The only plant of the Company involved in this proceeding is the one located at Newport, Minnesota. 2 As we have noted , the Independent Union was not allowed to participate as a party in the first hearing , but it , was afforded the full opportunity to submit its proof at the second hearing. 3 Cf. Matter of H. E. Fletcher Company and Granite Cutters' International Association of America, 5 N. L. R. B. 729; Matter of Phelps Dodge Corporation , United Verde Branch and International Association of Machinists, Local No . 223, et al., ' 6 N. L.. R. •B. 624; Matter of Armour i Company and Packing House Workers' Organizing Committee for United Packing House Workers, Local 3.y7, 8 N. L. R. B. 1100. i At the hearing the Company conceded that the facts set forth in Board Exhibit 2 were correct. Except for a few minor changes Board Exhibit 2 contains the findings of the Board relating to the business of the Company in the proceeding entitled Matter of The Cudahy Packing Cornpanl' and Packinghouse Workers Local Industrial Union No. 62, etc., 5 N. L. R. B. 472. CUDAHY PACKING COMPANY 247 A substantial proportion of the livestock slaughtered at the Newport plant originates outside the State of Minnesota. Approximately 75 per cent of the products of that plant are shipped by the Company to points outside- of Minnesota. II. THE ORGANIZATIONS INVOLVED United Packing House Workers, Local Industrial Union, 756, is a labor organization affiliated with the Committee for Industrial Organ- ization, admitting to its membership all production employees at the Newport plant. Packing House Workers'.Union of St. Paul, as stated above, was found by the Board to have been a company-dominated union and was ordered disestablished as bargaining representative. III. TIIE' QUESTION CONCERNING REPRESENTATION In June 1937 the Company and the Independent Union entered into. a contract for a term of 1 year conferring exclusive. recognition upon the Independent Union as the bargaining representative of its New- port employees, exclusive of executives, foremen, and assistant fore- men. In May 1938 the contract as modified was extended for an in- definite term subject to termination by either party's giving 20 days' notice of'abrogation. The business agent of the United testified that the Company, assert+ ing that it was prevented by the contract, had refused on numerous occasions to recognize the United as the bargaining representative of its employees. The Company adhered to that position at the hearing. Since in the former proceeding the Board ordered the Company to cease giving effect to the contract, it is no bar to the conduct of this investigation.5 We find that a question has arisen concerning representation of em- ployees 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 rela- tion to. trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 5Cf. Matter of Federal Knitting Mills Company and Bomberger Reinthal Company and International Ladies' Garment Workers Union, 3 N.. L. R. B. 257. 190935-40-vol. 14-17 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1'. THE APPROPRIATE UNIT At the hearing the United contended that the unit for collective bargaining should consist of all production and maintenance em- ployees paid on an hourly or piece-work basis, exclusive of executives, foremen, assistant foremen, strawbosses and all others having the au- thority to hire and discharge, office clerical employees, watchmen, the sanitation gang, the cafeteria employees, and persons employed on special construction projects. Thus the United would exclude all salaried production and maintenance employees as well as salaried plant clerks. The Company contended that such salaried employees as well as the sanitation gang and the cafeteria employees should be included in the unit. A. Salaried employees The controversy between the United and the Company concerning salaried employees relates to 40 persons,6 of whom 29 are employed in the plant and 11 in the adjoining stockyards.' The company super- intendent testified that for the past 25 or 30 years the Company has had a schedule of a limited number of salaried positions in each of the departments. He further testified that whenever employees are hired in any department in excess of the number of salaried positions pro- vided for in that schedule they receive an hourly or piece-work rate. The record shows that in many cases persons receiving a salary per- form.the same kind of work as hourly paid workers. The only reasoli given by the United for its desire to exclude these salaried employees was'that "their interests are more those of the employer than they are of the collective security of the employees." The United did not, how- ever, introduce any evidence to show that the salaried employees here involved enjoy any advantages denied the hourly paid workmen. Ac- cording to the superintendent, the Company treats the salaried and hourly paid production employees alike. Except for the draftsman and the plant clerks,8 we shall include the salaried employees in con- troversy within the bargaining unit. 6 Among these 40 employees are firemen and oilers . a draftsman , plant clerks and checkers , a saw filer, a scale repairman, scalers, or millwright, electricians , and laborers. 7 Though Board Exhibit 4-a lists 13 production workers in the stockyards, the evidence shows that 2 men, C. Vassau and R. Baumgartner , should not have been included. One of them does not work at the Newport plant and the other is a salesman . It follows that these two men are not entitled to vote in the election hereinafter ordered. 6 Our reasons for excluding draftsmen from a unit composed of production and mainte- nance employees were given in Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Woikers of America, Local No. 248, 4 N. L. R. B. 159, at page 171. Our reasons for the exclusion of the salaried plant clerks were exp 'ained in Matter of Westinghouse Electric and Manufacturing Company and United Electrical Radio and Machine Workers of America, 12 N. L . R. B. 1360 . See also Matter of R. C. A. Manu- facturing Company, Incorporated and United Electric and Radio Workers of America, 2 N. L. It. B . 159; Matter of Keystone Manufacturing Company and United Toy and Novelty Workers' Local Industrial Union, No. 583 of the C. 1. O., 7 N.. L. R: B. 1T2. CUDAHY PACKING COMPANY B. The sanitation gang 249 Board Exhibit 4 lists the production and maintenance employees at the Newport plant as of March 2, 1938, classified according to occupation. There are nine employees listed on Board Exhibit 4 under the heading' "Sanitation" who have been referred- to in the. testimony as the sanitation gang. Their work consists of cleaning the plant and the stockyards, and they are paid on an hourly basis.. We see no reason to exclude them from the appropriate bargaining unit. C. The cafeteria employees There are four persons who prepare and serve food in the plant cafeteria. The United desires to exclude the cafeteria employees from the bargaining unit. Since they are not engaged in produc- tion we shall exclude them from the production bargaining unit.' We find that the production and maintenance employees of the Company at its Newport, Minnesota, plant, including'those receiving a salary and the sanitation gang, but excluding executives, foremen, assistant foremen, strawbosses and others having the authority to hire or discharge, office clerical employees, salaried plant clerks, draftsmen, watchmen, cafeteria employees, and persons employed on special construction projects, constitute a unit appropriate for the purposes of collective bargaining 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 In its petition and at the hearing the United contended that it represented a majority of the employees in the unit we have found to be appropriate but did not submit any documentary evidence in support of its contention. Under the circumstances we find that the question concerning representation which has arisen can best `be resolved by an election by secret ballot. At the hearing the United suggested the use of the Company's pay roll of March 2, 1938, to determine eligibility to vote in the election. More than 16 months, however, have elapsed since then. Though the number of persons in the Company's employ has varied from time to time, the reasons for the fluctuation do not appear. No proof was submitted that the variance was due to seasonal fluctuation 6 Cf. Matter of R. C. A. Manufacturing Company, Incorporated and United Electric and Radio Workers of America, 2 N. L. R . B. 159. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- in production. Under the circumstances, we shall direct that all em- ployees in the appropriate unit during the pay-roll period imme- diately preceding the date of this Direction of Election shall be entitled to vote in the election, including employees who did not work during such pay-roll period because they were ill or on vacation and employees' who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause. 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 Cudahy Packing Company, Newport, Minnesota, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production and maintenance employees of the Company at its Newport, Minnesota, plant, including those receiving a salary and the sanitation gang, but excluding executives; foremen, assistant fore men, strawbosses and others having the authority to hire or dis- charge, office clerical employees, salaried plant clerics, draftsmen, watchmen, cafeteria employees, and persons employed on special con- struction projects, constitute a unit appropriate for the purposes of collective bargaining, 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 Re- lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Cudahy Packing Company, Newport, Minnesota, 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 Eighteenth Region, acting in this matter as agent for the National Labor Relations Board, and pursuant to Article III, Section 9, of said Rules and Regulations, among the production and maintenance employees of the Company at its Newport, Minne- sota, plant, including those receiving a salary . and the sanitation gang, but excluding executives, foremen, assistant foremen, straw- bosses and others having the authority to hire or discharge, office clerical employees, salaried plant clerks, draftsmen, watchmen, cafe- CUDAHY PACKING COMPANY 251 teria employees, and persons employed on special construction projects, who were employed by Cudahy Packing Company at its Newport, Minnesota, plant, during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding employees who have since quit or been dis- charged for cause, to determine whether or not they wish to be repre- sented by United Packing House Workers, Local Industrial Union, 756, affiliated with the Committee for Industrial Organization, for the purposes of collective bargaining.