Wilson & Co., Inc.

In the Matter of WILSON & Co., INC. and LOCAL No. 37, UNITED PACKINGHOUSE WORKERS OF AMERICA, OF P. W. O. C. AFFILIATED WITS C. 1. 0. Case No. R-1440.--Decided September 11, 1939 Meat Packing Industry-Investigation of Representatives : controversy con- cerning , representation . of employees : letter on behalf of petitioning union ad- dressed to Company, requesting recognition as exclusive representative o8 employees and requesting conference for collective bargaining , not answered by Company ; employer may not question authority of union representative to file petition-Unit Appropriate for Collective Bargaining : all hourly paid and piece-work production and maintenance employees of the Company , excluding foremen and other supervisory employees, clerical and office employees , police- men, and temporary employees ; no controversy as to-Representatives : testimony by officer of petitioning union that all employees in unit were members, but no documentary proof of membership . offered-Election Ordered-Certification of Representatives. M11r. Lester Asher, for the Board. Mr. Marshal Wiedel,'of Chicago, Ill., for the Company., Mr. John J. Brownlee, of Chicago, Ill., for the Union. Mr. Parker Bailey, of counsel to the Board. DECISION AND DIRECTION OF, ELECTION STATEMENT OF THE CASE On May 19, 1939, Local No. 37, United Packinghouse Workers of America, herein called the Union, filed with the Regional Director for the Eighteenth Region (Minneapolis, Minnesota), a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees, of Wilson & Co., Inc., Faribault, Minnesota, herein called the Company, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 15 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 Regulations-Series 1,. as 15 N. L. R. B., No. 25. 195 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, amended, hereinafter referred to as the Rules and Regulations, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On June 17 the Regional Director issued a notice of hearing, and on June 22 and July 12, notices of continuance of the hearing, copies of which were duly served upon the Company and upon the Union. Pursuant to the notices, a hearing was held on July 20, at Faribaultr Minnesota, before Gustaf B. Erickson, the Trial Examiner' duly desig- nated by the Board. The Board and the Company were represented by counsel, and the Union was represented by its representative. All of the parties participated in the hearing. During the hearing the petition, with the consent of all parties, was amended in certain par- ticulars referred to hereinafter. Full opportunity to be heard, to. examine and cross-examine witnesses, .and to' introduce evidence bear- ing 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. At the close of the hearing the Company moved to dismiss the petition for investigation and certification on the grounds (1) that it was not filed in accordance with the Act and with the Rules and Regulations' of the Board, and that neither the Union nor the employees of the Company had author- ized, its filing;, (2) that no question affecting commerce has arisen concerning the representation of employees of the Company, and (3), that no question or controversy concerning representation of employees of the ,Company has arisen. The Trial Examiner made no ruling thereon. The-Board hereby denies the motion. Pursuant to application duly made by the Company subsequent to the hearing, permission for oral argument was granted by the Board. Pursuant to notice duly served upon the parties, a hearing for the purpose of oral argument was held before the Board. at Washington,. D. C., on August 29. The Union appeared by its representative and participated in the hearing. The Company did not appear. I On August 25 the Company filed'a brief, which the Board has considered. 1 Neither during the hearing nor In its brief filed with the Board thereafter did the Company suggest any basis for the general allegation that ' the petition was not filed in: accordance with the Act or the Rules and Regulations . The evidence affirmatively dis- closes that the filing of the petition was authorized by the Union and, in any event, an employer may not question the existence of such authority. See Matter of The Sorg' Paper Company and Committee for Industrial Organization,, 8 N. L. R. R. 657, 658,.. footnote 1. ' WILSON •.S, CO., INC. 197 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, a Delaware corporation with its principal office in Chicago, Illinois, is, engaged in the meat-packing business. It operates packing plants in Los Angeles, California; Columbus, Georgia; Cedar Rapids, Iowa; Kansas City, Kansas; Albert Lea and Faribault, Minne- sota; Omaha, Nebraska; and in Oklahoma City, Oklahoma. The Company also operates a produce plant at Faribault, Minnesota, at which it handles poultry, eggs, and dairy products. The produce plant is under a separate manager and carries on most of its operations in an adjacent but separate building. At the hearing the Union, without objection, amended its petition to indicate more clearly that the request for investigation and certification related only to the pack- ing plant at Faribault, which we shall hereafter refer to as the Fari- bault plant. The Faribault plant stores and cures pork products de- rived from hogs slaughtered at the plant of the Company in Albert Lea, Minnesota,2 and then brought to Faribault by motor trucks. At the time of the hearing there were 85 employees at the Faribault plant. At the time the products are sent to Faribault they have not been sold, and their ultimate destination is not known. Following storage or curing the products are either sold to customers and delivered from the Faribault plant by truck or rail, or sent back to the Albert Lea plant for further processing. During the fiscal year 1938 approxi- mately $2,600,000 worth of products were shipped to Faribault from Albert Lea for storing and curing. Approximately $1,500,000 worth of these products were sold at the Faribault plant to customers, approx- imately 10 per cent of that amount being sold to customers in Minne- sota, and approximately 90 per cent being shipped to customers outside of Minnesota. Approximately $1,100,000 worth of products shipped from Albert tea to Faribault were reshipped to Albert Lea for further processing, and approximately 25 per cent thereof were thereafter sold to customers in Minnesota, and approximately 75 per cent to customers outside Minnesota. The Company, through a subsidiary, Wilson & Co., incorporated under the laws of New Jersey, maintains approximately 90 warehouses, largely located in the populous centers on the eastern seaboard and in the southeast. From these warehouses, called branch houses, the Company sells it products to the retail trade and to other dealers at 2•See Matter of Wilson d Company and L. U. #6, United Packinghouse Workers of America of Packinghouse Workers Organizing Committee affiliated with C. I. 0., 14 N. L. R. B. 283. 199549-39-vol. 15-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those locations. It also has two foreign subsidiaries which operate packing plants in Argentina and Brazil, and sell their meat in South America, Central America, and Europe. II. THE ORGANIZATION INVOLVED Local No. 37, United Packinghouse Workers of America, is a labor organization chartered by the Packinghouse Workers Organizing Com- mittee; which is affiliated with the Congress of Industrial Organiza- tions. It admits to its membership all hourly paid maintenance and ,production employees of the Company, excluding ' foremen, assistant foremen, clerical workers, and policemen. III. THE QUESTION CONCERNING REPRESENTATION On or about April 19, 1939, the chairman of the Packinghouse Workers Organizing Committee, on behalf of the Union, addressed a .letter to the manager of the Faribault plant, in which he stated that 'the Union represented a majority of the production and maintenance ,,employees at the plant, excluding supervisors, asked the Company to .recognize the Union as exclusive representative of such employees for the purposes of collective bargaining, and requested the Company to confer with the Union respecting wages, hours of employment, rates of pay, and other conditions of employment. At the hearing the Com- pany admitted that it had received but had not replied to the letter. We find that a question has arisen concerning representation of employees 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 :relation to trade, traffic, and commerce among the several,States, and lends to lead to labor disputes burdening and obstructing commerce :and the free flow of commerce. V. THE APPROPRIATE UNIT The Union claims that an appropriate unit, consists of all hourly ,paid and piece-work production and maintenance employees, excluding foremen and other supervisory employees, clerical and office employ- ees, and policemen, employed by the Company at its Faribault plant.$ The Company does not contend that such unit is not appropriate. 8 The petition filed by the Union also requested the exclusion of teamsters from the .appropriate unit. The pay roll of the Faribault plant , Introduced in evidence , discloses, WILSON & CO., INC. 199 At the hearing there was.introduced into evidence a pay-roll list of employees at the Faribault plant for the week. ending July 15, 1939. The manager of the plant, when asked to point out the supervisory employees whose names appeared on the list, identified Charles E. Griffin as superintendent, Leo M. Barry and Harry H. Heuerman as foremen, Francis L. Manahan as an industrial engineer and foreman, and Frank Benesch as foreman and chief engineer. We find that these employees are supervisory employees and we shall, therefore, exclude them from the unit. In cross-examining Stephen Benjamin, financial secretary of the Union, employed in the dry-salt department, counsel for the Company inquired'as to the nature of his work. Benjamin testified that he was a "lead-off" man and directed work in his partic- ular department, but that he had no authority to hire or discharge and, so far as he knew, no authority to make recommendations concerning hiring or discharging. The manager of the plant did not name him as one of the supervisory employees, and we see no reason for excluding Benjamin from the unit. The Union contends that Ernest Stadler, whose name appears on the July 15 pay-roll list, should be excluded from the unit. Stadler is employed each summer for a period of 4 to 6 weeks when regular employees in the boiler and engine room are on vacation. Such em- ployment is not sufficient to give him any seniority status under the Company's practice. He is obviously a temporary employee, and we shall accordingly exclude him from the unit.4 We find that the hourly paid and piece-work production and mainte- nance employees of the Company at its packing plant at Faribault, Minnesota, excluding foremen and other supervisory employees, cleri- cal and office employees, policemen, and temporary employees, consti- tute a unit appropriate for the purposes of 'collective bargaining and that said unit will insure to the employees of the Company the full benefits of their right to self-organization and collective bargaining, and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The financial secretary of the Union testified that all employees of the Company in the unit claimed to be appropriate had signed mem- however, that no teamsters are employed at the plant . We take notice that the persons engaged in transporting products between the Albert Lea and Faribault plants are car- ried by the Company on the Albert Lea pay roll . See Matter of Wilson & Company and L. U. #6, United Packinghouse Workers of America of Packinghouse Workers Organiz- ing Committee affilia=ted with C. 1. 0., 14 N. L. R. B. 283. 4 See Matter of Armour & Company and Amalgamated Meat Cutters and Butcher Work- seen of North America, Local Union No. 413, 5 N. L. R . B. 975; Matter of Armour & Com- pany and United Packinghouse Workers, Industrial Union No . 893, through Packinghouse Workers Organi sing Committee , affiliated with the C. I. O., 12 N . L. R. B. 49; Matter .or The Cudahy Packing Company and United Packinghouse Workers of America, Local No 21, of the Packinghouse Workers Organizing Committee, affiliated with the C. 1. 0., 13 N. L. R: B. 526. 200 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD bership cards in the Union. The Union, however, requests an election by secret ballot and, therefore, offered no documentary proof of mem- bership. • We find that the question which has arisen concerning the representation of employees of. the company can best be resolved by means of an election by secret ballot. The Union asks that the pay roll for the week. ending July 15, 1939, be used for the purpose of an election. Since the record shows that no marked fluctuation is likely to occur in the near future, we shall desig- nate the current pay-roll date in accordance with our usual practice. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CoN CLusIoNS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Wilson & Co., Inc., Faribault, Minnesota, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The hourly paid and piece-work production and maintenance employees of the Company at the packing unit of its plant at Fari- bault, Minnesota, excluding foremen and other supervisory employees, clerical and office employees, policemen, and temporary employees, con- stitute 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 the purposes of collective bar- gaining with Wilson & Co., Inc., Faribault, 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 subject to Article III, Section 9, of said Rules and Regulations, among all hourly paid and piece-work production and maintenance employees of Wilson & Co., Inc., at its packing plant at Faribault, Minnesota, who were employed by the Company during the pay-roll period next preceding the date of this Direction, 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 foremen and other supervisory employees, clerical and WILSON & CO., INC. 201 office .employees, policemen, and temporary employees, and any em- ployees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Local No. 37, United Packinghouse Workers of America, for the purposes of collective ,bargaining. ;[SAME TITI E] CERTIFICATION OF REPRESENTATIVES October 11, 1939 On September it, 1939, the National Labor Relations Board, herein called the Board, issued its Decision and Direction of Election in the above-entitled proceedings. The Direction of Election pro- vided that an election by secret ballot be conducted within fifteen (15) days from the date of the Direction among all. hourly paid and piece-work production and maintenance employees of Wilson & ,Co., Inc., at its packing plant at Faribault, Minnesota, who were employed by the Company during the pay-roll period next preceding the date of the Direction, 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 -ofi, but excluding foremen and other supervisory employees, clerical and office employees, policemen, and temporary employees, and any employees who have since quit or been discharged for cause, to deter- mine whether or not they desired to be represented by Local No. 37; United Packinghouse Workers of America, for the purposes' of col- lective bargaining. Pursuant to the Direction of Election, an election by secret ballot was conducted on September 26, 1939, under the direction and super= vision of the Regional Director for the Eighteenth Region (Minne- apolis, Minnesota). On September 28, 1939, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 2, issued an Election Re- port, copies of which were duly served upon the parties. As to the balloting and its results, the Regional Director reported ,as follows : 1. Total number eligible------------------------------------- 74 2. Total number of ballots cast------------------------------ 70 3. Total number of ballots cast for Local 37, United Packing- house Workers • of America of P. W. 0. C. affiliated with C. I. 0------------------------------------------------- 47 4. Total number of-ballots cast against the above organization- 23 5. Total number of blank ballots---------------------------- 0 6. Total number of void ballots------------------------------ 0 7. Total number of challenged ballots---- -------------------- 0 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter the Company filed with the Regional' Director its Ob- jections to the Election Report. The Objections alleged as follows : 1. The Board did not have jurisdiction to investigate and certify representatives herein for the reason that: (a) there was not and is not any question or controversy concerning represen- tation; (b) there was not and is not any question or controversy affecting commerce concerning representation; and (c) the peti- tion was not filed in accordance with the rules of the Board in that it was not filed by anyone having authority to do so. The Objections so filed by the Company raise no issues with re- spect to the conduct of the election or to the results of the balloting as certified in the Election Report. The Objections only raise issues which were considered by the Board in its Decision issued September 11, 1939, in this case, and were therein ruled upon. We find the Objections to, be without merit. 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, Sections 8 and 9, of, National Labor Relations Board Rules and Regulations-Series 2, IT IS HEREBY CERTIFIED that Local No. 37, United Packinghouse Workers of America, has been designated and selected by a majority of the hourly paid and piece-work production and maintenance em- ployees of Wilson & Co., Inc., at its packing plant at Faribault, Minnesota, excluding foremen and other supervisory employees, clerical and office employees, policemen, and temporary employees, as their representative for the purposes of collective bargaining and that, pursuant to the provisions of Section 9 (a) of the Act, Local No. 37, United Packinghouse Workers of America, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions 'of employment. 15 N. L. R. B., No. 25a.