Wilson & Company

In the Matter Of WILSON & COMPANY and L. U. #6, UNITED PACK- INGHOUSE WORKERS OF AMERICA OF PACKINGHOUSE WORKERS OR- GANIZING COMMITTEE, AFFILIATED WITH C. I. O. Case No. R-137J.Decided August 7, 1939 Meat Packing Industry-Investigation of Representatives: question concern- ing representation : allegation that petitioner was refused recognition as exclu- sive representative not denied by employer who asserted another labor organi- zation also claimed to represent a majority-Unit Appropriate for Collective Bargaining: production and maintenance employees, including three employees who had not worked for months because of injuries, but excluding foremen, supervisors, clerical and office employees, checkers, teamsters-Representatives: proof of choice : validity and sufficiency of, submitted by petitioning union, chal- lenged by company and intervenor-Election Ordered Mr. Lee Loevinger, for the Board. Mr. James D. Cooney and Mr. Marshall Wiedel, of Chicago, Ill., for the Company. Mr. John J. Brownlee, of Chicago, Ill., for Local No. 6. Mr. Elmer R. Peterson, of Albert Lea, Minn., for the Workers' Union. Mr. N. Barr Miller, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 20, 1939, Local Union No. 6, United Packinghouse Work- ers of America of the Packinghouse Workers Organizing Committee,' affiliated with the Congress of Industrial Organizations, herein called Local No. 6, filed with the Regional Director for the Eighteenth Region (Minneapolis, Minnesota), a petition alleging that a question affecting commerce had arisen cone rning the representation of em- ployees of Wilson & Company, he ein called the Company, at its plant in Albert Lea, Minnesota, requ sting an investigation and certi- 1 The charter issued to Local No. 6 designates the Committee as the "Packinghouse Workers Organizing Committee"; the author zation cards introduced in evidence are headed "Packing House Workers Organizing C mmittee." The two forms are apparently used interchangeably by the organization. 14 N. L. R. B., No. 22. 283 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fication of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 29, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regula- tions-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 May 4, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon Local No. 6, and upon the Workers''Union, a labor organization claiming to represent employees directly affected by the investigation.2 On May 9, 1939, counsel for the Workers' Union filed a written motion to intervene in the proceedings, which motion was reserved for the ruling of the Trial Examiner. Pursuant to the notice, a hearing was held on May 11 and 12, 1939, at Albert Lea, Minnesota, before Madison Hill, the Trial Examiner duly designated by the Board. At the hearing the motion to intervene was .renewed and granted over the objection of Local No. 6.3 During the hearing counsel for Workers' Union declined to present any proof that Workers' Union was a labor organization or had any substantial membership among the employees at the Albert Lea plant of the Company. The at- torney for the Board thereupon moved that the Trial Examiner reverse his ruling and deny the petition to intervene. This motion was reserved for the ruling of the Board. The verified petition for intervention states that Workers' Union is a voluntary, unincorpo- rated labor union of employees at the Albert Lea plant of the Com- pany, claiming to represent more than 51 per cent of the employees; the petition is signed and sworn to by the president of Workers' Union who is an employee of the Company. Counsel for Workers' Union in a brief filed with the Board after the hearing, offered to submit to the Board in Washington its evidence of membership. We hereby affirm the ruling of the Trial Examiner granting the a On'May 8, 1939, workers' Union filed with the Regional Director for the Eighteenth Region (Minneapolis, Minnesota) a petition for investigation and certification of represen- tatives at the Company 's Albert Lea plant. Upon the recommendation of the Regional Director that Workers' Union was entitled to petition for intervention in the instant proceeding, hearing on which had already been scheduled, thereby presenting the same issues, the Board dismissed the petition. a The attorney for the Board also took an exception to the ruling on the ground that granting of the petition might prejudice a later showing that the Company had failed to disestablish its Employee Representation Plan as ordered by the Board in the Matter of Wilson ci Co., Inc. and Independent Union of All Workers or its successor United Packing House Workers, 7 N. L. R. B. 986. and affirmed in 'Wilson and Company. Inc. v. National Labor Relations Board, 103 F. (2d) 243 . ( C. C. A. 8th) , and until that showing was made there was a question that the Workers' Union might be the organization ordered disestablished. No evidence of any connection between the Workers' Union and the Employee Representation Plan was subsequently adduced during the hearing. WILSON & COMPANY 285 motion to intervene and overrule the motion to deny such interven- tion. The Board, the Company, Local No . 6, and the Workers' Union, herein called the Intervenor, were represented and participated in the hearing, Local No. 6 by a representative of the Packinghouse Workers Organizing Committee, and the other parties by counsel. -Full opportunity to be heard, to examine and to cross -examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. Near the close of the hearing Local No. 6 moved to amend the description of the unit set forth in its petition in order to embrace certain production and maintenance employees who were not included in the unit as described in the original petition. The motion is hereby granted. 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 com- mitted.4 The rulings are hereby affirmed . All parties have filed briefs which have been given due consideration by the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT . 1. THE BUSINESS OF THE COMPANY Wilson & Company is a Delaware corporation engaged in the meat- packing business. It has a subsidiary selling company, incorporated under the laws of New Jersey, and two foreign subsidiaries for carry- ing on its packing operations in Argentina and Brazil. Its principal office is in Chicago:,' Packing plants are maintained in nine cities throughout the coun- try, including the plant at Albert Lea,. Minnesota. The Company handles about 6 per cent of the total commercial slaughter of live- stock in the United States. • At the Albert Lea plant between •82 and 95 per cent of the livestock purchased for processing is obtained in Minnesota; the balance out- side the State. The entire product of the Albert Lea -plant is sold to local customers or to the company's selling agent, Wilson & Com- pany of New Jersey. For the year ending October 29, 1938, the sales of the products processed at the Albert Lea plant amounted to 4 At the hearing the Company moved for dismissal of the petition on the ground that it failed to comply with Article III , Section 1 , of the Board's Rules and Regulations since John J. Brownlee, who signed the petition, was neither an employee of the Company nor authorized by any employee to file the petition . The Company subsequently offered to waive this objection in the event an election should be ordered by the Board . Since we have found , for reasons stated in Section VI, that the question concerning representation can best be resolved by an election by secret ballot, the objection may thus be considered avaived. . 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $18,000,000. Eighty-three per cent of these products were shipped to points outside the State of Minnesota. H. THE ORGANIZATIONS INVOLVED Local Union No. 6, United Packinghouse Workers of America of Packinghouse Workers Organizing Committee, is a labor organiza- tion affiliated with the Congress of Industrial Organizations, admit- ting to its membership employees of the Company's plant at Albert Lea, except clerical and office employees, foremen and assistant fore- men, supervisory employees, truck drivers, and watchmen. Workers' Union is an unaffiliated labor organization, membership in which is limited to employees of the Company's plant at Albert Lea. The record does not clearly disclose whether any classes of employees are excluded from membership. III. THE QUESTION CONCERNING REPRESENTATION The petition filed by Local No. 6 on April 20, 1939, states that the local has requested recognition -and has been refused. On May 2, 1939, a representative of the Packinghouse Workers Organizing Com- mittee, herein called the P. W. O. C., telegraphed the Company stating that its local at Albert Lea, Minnesota, represented a majority of the employees in the appropriate unit at the Albert Lea plant and requested recognition as the exclusive bargaining agent. On May 4, 1939, counsel for the Company wrote to the Board's Regional Di- rector for the Eighteenth Region , stating that it understood another organization also claimed to represent a majority of the same em- ployees and offering to attend a, conference of all interested parties to arrange for a consent election . The Company does not deny that it was requested to recognize Local No. 6 as sole bargaining agent prior to the date on which the petition for investigation and certi- fication was filed, and that it has at all times taken the position that an election should be held to resolve the issue of representation. Both the Company and the intervening Workers' Union offered at the hearing to stipulate that the Board might hold an election. We find that a question has arisen concerning the representation of employees of the Company at its Albert Lea plant. 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 commerce and the free flow of commerce. WILSON & COMPANY V. THE APPROPRIATE UNIT 287 In its petition Local No. 6 asked for a unit composed of all hourly paid and piece-work production and maintenance employees of the Company at its Albert Lea plant, excluding foremen, assistant fore- men, clerical and office employees, teamsters, and all supervisory employees. The testimony at the hearing showed that some produc- tion employees are paid on a-straight time basis. Local No. 6 there- upon moved to amend its petition to include all production and maintenance employees of the Company at its Albert Lea plant, with the same exclusions as enumerated above, which motion we have granted. The Company desires to include in the unit its 29 "teamsters" or truck drivers who are classified on the general pay roll as "Garage" employees. A part of these employees drive trucks carrying com- pany products from the Albert Lea plant to customers in neighboring cities; others are stationed some distance from Albert Lea to meet "feeder" trucks coming from the plant, and to receive their loads for redelivery. Two of the 29 drivers do local trucking in the city of Albert Lea. Loading crews load the trucks operating out of the plant, but the truck drivers assist if the occasion demands. They work under the supervision of a foreman who controls .their schedule of deliveries and from time to time goes with them on their trips. Their hours of work vary, depending on the length of their routes; they are paid by the week rather than on an hourly basis. They are not eligible for membership in Local No. 6 and that Union disavows any claim to bargain for them. The representative of Local No. 6 at the hearing stated, as a matter of information, that the Team- sters' Union claims jurisdiction over them. The Intervenor expressed no view as to whether this group should be included in or excluded from the unit. Since the duties and working conditions of these employees differ sufficiently from those of production and mainte- nance employees not to necessitate their inclusion in the same unit with the latter and since the one interested labor organization ex- pressing a choice in the matter claims no jurisdiction over them and desires their exclusion, we will exclude teamsters (i. e. "Garage" employees) from the appropriate unit.5 However, the record shows that William J. Robinson, one of the 29 listed on the pay roll of May 6, 1939, as a "Garage" employee, is a dock worker on the night load- ing gang. He will therefore not be excluded from the unit. The status of three persons listed by the Company as present em- ployees is disputed. Edward J. Higgins has not worked since his hand was crushed and amputated more than a year ago. He is still. s See Matter of Swift & Co. (United Dressed Beef Co., J. J. Harrington, N. Y. Veal & Mutton Co.) and Committee for Industrial Organization on behalf of the employees of Swift & Co., et al., 11 N. L. R. B. 950. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD carried on the pay roll and receives compensation from the Company_ It has_ not yet been determined whether he will be able to return and to do the same type of work he was engaged in-before his injury. The other two, namely, Eva W. Holt and Olaf Turtness, have not worked during the last 4 to 6 months, one -because of injury, the other because of sickness. Both are-still on the pay roll 6 and there is no indication that they will not return to their original position- Since the Company recognizes these persons as employees and the type of work they were last engaged in places them within the appropriate unit they should have an opportunity to participate in the selection of bargaining representatives, and we so find. Local No. 6 also contends that several employees known as: "checkers" are clerical employees and should, therefore, be excluded from the appropriate unit.7 Checkers perform their duties on the, loading platform at the plant. They check the products being loaded against shipping sheets to determine that orders are being correctly filled, and also. speed up the loading as they can. Although their duties 'are- so closely related to those of production workers that they might justifiably be placed in the unit, we, will exclude them because their work is chiefly clerical.s . In addition to these groups of employees, Local No. 6 examined. the manager of the plant in regard to the duties of certain named individuals on the general pay roll, apparently in -an attempt to: show that they performed supervisory or clerical duties which would bar them from the unit. All of the persons named are carried on the general pay. roll as distinguished from the supervisory and clerical pay roll.`' There was no testimony indicating that any of them had supervisory duties of any character. We will, therefore, include in the unit Walter L. Johnson, Leonard V. Johnston, George 8 Eva W. Holt is on that part of the general pay roll containing the names of employees who worked during the pay-roll period ending May 6, 1939. Olaf Turtness is listed by the Company among those who were not working but had retained their seniority rating with the Company because their lay-off had not on May 6 , 1939, amounted to 60 working days (see footnote 10, infra ), although Turtness had in fact been away from his work for a much longer period. T Although the "checkers" are not clearly identified by name in the testimony , they are apparently the last eight persons listed under the section entitled "Trimming Loading" on the general pay roll of May 6, 1939 , which is Board Exhibit No. 5. 8 See Matter of Armour & Company and Packing House Workers Organizing Committee for United Packing House Workers, Local 347, 8 N. L. R. B. 1100 , 1119; Matter of Simplex- Wire and Cable Company and Wire & Cable Workers Federal Local Union 21020 , affiliated with the A . F. of L., 6 N. L. R. B. 251, 258; Matter of Burnside Steel Foundry Company- and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1719, 7 N. L. R. B. 714, 719. The Company has at least two separate pay rolls for employees at tbe ;Albert Lea plant. The general pay roll, which was introduced in evidence as Board- Exhibit Nos. 5 and 5b., contains the names of those employees who are considered by the. Company to be engaged in the actual production and maintenance work of the plant . The supervisory and clerical, pay roll contains the names of those whom the •Compan •y considers are supervisors and clerical employees . None of the parties contends that any on the supervisory and clerical pay roll should be included within the appropriate 'unit, except it was agreed that yardmen. who are on the office pay roll are in fact production employees within the appropriate unit. (Board Exhibit No. 5a contains a list of yardmen.) WILSON & COMPANY 289 D. Kittleson, John J. Randall, William W. Taylor, and Einer C. Jorgenson. Another employee, Vernon W. Olson, does some clerical work in connection with his employment as a scaler on the beef-killing floor, but he also does some of the same work as the production employees on the floor. The evidence in the record is insufficient to determine at this time his status in relation to the unit. We find that all production and maintenance employees of the Company at its Albert. Lea plant, including William J. Robinson; Edward J. Higgins,. Eva W. Holt, Olaf <Turtness, .Walter L. John- son,-Leonard V. Johnston, George D. Kittleson, John J. Randall, William W. Taylor, and Einer C. Jorgenson, but excluding foremen, assistant foremen, clerical and office employees, teamsters, supervisory employees, and checkers constitute a unit appropriate for the pur- poses 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 All the parties joined in a stipulation that employees in the appro- priate unit on the pay roll of May 6,`1939, including those laid off -who had seniority standing 10 with the Company on that date, should be eligible to participate in the selection of representatives. Local No. 6 claims to represent a majority of the employees in the appro- priate unit and introduced evidence in support of its claim. The Company and the Intervenor challenged the validity and sufficiency of the proof offered by Local No. 6. The Intervenor submitted no evidence to substantiate its assertion that a majority of the employees in the appropriate unit had designated it as representative. How-. ever, in It brief filed with the Board it has offered to place before the Board in Washington its original applications for membership in the Workers' Union, the list of signers of its Articles of Associa- tion, and its later application cards, although it does not care to reveal them locally because such disclosure might subject its officers and members to intimidation, threats, and duress. In consideration of all these circumstances, we find that the ques- tion concerning representation which has arisen can best be resolved by an election by secret ballot and we shall so direct." Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : 10 Any employee who has worked for the Company for 60 working clays without a break of 60 working days is given a seniority rating by the Company which he retains until he has been laid off for an interval of more than 60 working days . Persons with seniority rating are considered by the Company to be regular employees , entitled to be laid off, and called back on the basis of their length of service. J1 See Matter of The Cudahy Packing Company and United Packinghouse Workers Organ- izing Committee, etc., 13 N. L. R. B. 526. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Wilson & Company at its Albert Lea, Minnesota, plant, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees of the Company at its Albert Lea plant, including William J. Robinson, Edward J. Higgins, Eva W. Holt, Olaf Turtness, Walter L. Johnson, Leonard V. Johnston, George D. Kittleson, John J. Randall, William W. Taylor, and Einer C. Jorgenson, but excluding foremen, assistant foremen, clerical and office employees, teamsters, supervisory em- ployees, and checkers 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 Rela- tions Act, 49 Stat. 449, 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 authorized by the Board to ascertain representatives for collective bargaining with Wilson & Company, Chicago, Illinois, 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 Di- rector for the Eighteenth 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, among all production and maintenance employees of the Company at its Albert Lea plant, in- cluding William J. Robinson, Edward J. Higgins, Eva W. Holt, Olaf Turtness, Walter L. Johnson, Leonard V. Johnston, George D. Kit- tleson, John J. Randall, William W. Taylor, and Einer C. Jorgenson, who were on the pay roll of the Company for May 6, 1939, including. those laid off who had seniority standing with the Company on that date, but excluding foremen, assistant foremen, electrical and office employees, teamsters, supervisory employees, checkers, and employees who have since .quit or been discharged for cause, to determine whether they desire to be represented by Local No. 6, United Pack- inghouse Workers of America of the Packinghouse Workers Organ- izing Committee, affiliated with the Congress of Industrial Organiza- tions or by Workers' Union, for the purposes of collective bargain- ing, or by neither. WILSON & COMPANY 291 [SAME TITLE AMENDMENT TO DIRECTION OF ELECTION August 22, 1939 On August 7, 1939, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding. The Direction of Election provided that an election by secret ballot be conducted within fifteen (15) days from the date of the Direction, under the direction and supervision of the Regional Director for the Eighteenth Region (Minneapolis, Minnesota), to determine whether the employees found by the Board to compose an appropriate unit desired to be represented for the pur- poses of collective bargaining by Local No. 6, United Packinghouse Workers of America of the Packinghouse Workers Organizing Com- mittee, affiliated with the Congress of Industrial Organizations, herein called Local No. 6, or by Workers' Union, or by neither. On August 16, 1939, the Regional Director advised the Board that Local No. 6 objected to the holding of the election until the Company should post certain notices in compliance with the Order of the Board,' issued on June 20, 1938, and enforced by the order of the Circuit Court of Appeals for the Eighth Circuit,2 issued on April 12, 1_,939. The Regional Director, after investigation, reports that the Company has not yet posted the proper notices 3 and recommends the postponement of the election. We will defer the election until the Company has complied with the Order of the Board as enforced by the Circuit Court of Appeals for the Eighth Circuit. The Board hereby amends the Direction of Election by striking therefrom the words "within fifteen (15) days from the date of this Direction" and substituting therefor the words "at such time as the Board may in the future direct." MR. EDWIN S. SMITH took no part in the consideration of the above Amendment to Direction of Election. 'Matter of Wilson & Co., Inc. and Independent Union of All Workers or its successor United Packing House Workers, 7 N. L. R. B. 986. 2 Wilson and Company, Incorporated v. National Labor Relations Board, 103 F. (2d) 243. Rehearing denied April 25, 1939. The Order of the Board was not enforced in entirety by the Court, but portions modified or refused enforcement are not involved here. 3 A notice was posted by the Company on May 3, 1939, relating to the 8 (2) portion of the Order but not to the 8 ( 1) portion. 14 N. L. R. B., No. 22a.