Utah Poultry Producers Cooperative Association

In the Matter Of UTAH POULTRY PRODUCERS COOPERATIVE ASSOCIATION and INDEPENDENT UNION OF POULTRY EMPLOYEES In the Matter Of UTAH POULTRY PRODUCERS COOPERATIVE ASSOCIATION and POULTRY WORKERS, FISH HANDLERS , EGG CANDI.ERS,. FEED MmL- MEN AND CREAMERY WORKERS, LOCAL #311 Cases Nos. R-1436 and R 1437, respectively .Decided September 21, 1939 Poultry Feed Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : refusal of company to recognize either union as exclusive bargaining agent without certification by Board-Unit Appropriate for Collective Bargaining: employees at feed-manu- facturing plant, including producer -members of a cooperative association , exclud- ing supervisory and managerial employees '; employees at poultry plant excluded ; history of separate collective bargaining at two plants-Election Ordered Mr. Paul S. Kuelthau, for the Board. Mr. Irwin Clawson, of. Salt Lake City, Utah, for the Association. Mr. Oscar W. Carlson; of Salt Lake City, Utah, for the Inde- pendent. Mr. R. L. Reese, of Salt Lake City, Utah, for Local #311. Miss Marcia Hertzmark, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 24, 1939, Independent Union of Poultry Employees, herein called the Independent, filed with the Regional Director for the Twenty-second Region (Denver, Colorado) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Utah Poultry Producers Cooperative Asso- ciation, Salt Lake City, Utah, herein called the Association, and re- questing an investigation and certification of representatives pursuant to Section 9 (c) of the National,Labor Relations Act, 49 Stat.,449,. herein called the Act. On April 29, 1939, Poultry Workers, Fish Handlers, Egg Candlers, Feed Millmen and Creamery Workers, 15 N. L. R. B., No. 59. 534 UTAH POULTRY PRODUCERS COOPERATIVE ASSOCIATION 535 Local #311, herein called Local 311, filed a similar petition. On May 2, 1939, the Independent filed an amended petition. On June 30, 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 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. It further ordered that, pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, the two cases be con- solidated for all purposes. On June 28, 1.939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Association, upon the Independent, and upon Local 311. Pursuant to notice, a hearing was held on July 13 and 14, 1939, at Salt Lake City, Utah, before Thomas H. Kennedy, the Trial Ex- aminer duly designated by the Board. The Board, the Association, the Independent, and Local 311 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. Pursuant to leave granted by the Board, briefs were filed by Local 311 and by the Independent and have been considered by the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT . 1. THE BUSINESS OF THE ASSOCIATION Utah Poultry Producers Cooperative Association was incorporated in Utah on February 2, 1925, and has its principal office and place of business in Salt Lake City, Utah. It maintains a plant for the manufacture of poultry feed and the handling of eggs, and a ware- house, at 1800 Southwest Temple Street, and operates a plant in which poultry is killed and dressed at 45 West 7th South,' both in Salt Lake City. It further maintains and operates throughout the State of Utah and in two counties in Idaho approximately 20 service centers which distribute feed to and receive eggs from members of the Association. In the course of its business, the Association, at its Southwest Temple plant, handles annually poultry feed worth approximately 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $1,450,000, 10 per cent of which is distributed outside the State of Utah, egg meats worth approximately $15,500, none of which are sold outside the State, and eggs worth approximately $425,000, 20 per cent of which are sold outside of Utah. At its 7th South . plant it handles each year poultry worth $517,000, 60 per cent of 'which is sold outside the State of Utah. During 1937 the gross value of the Association 's business was $8,900,000, and during 1938 its gross business totaled $6 ,300,000. It purchased, during 1938, - 30 per cent of its wheat and barley, 10 per cent of its oats, and all of its corn outside the State of Utah. All peat moss purchased in that year, 70 ,000' pounds, was imported from outside Utah. II. THE ORGANIZATIONS INVOLVED Independent Union of Poultry Employees is an unaffiliated labor organization which admits to membership all employees of the As- sociation except administrative, supervisory, or managerial employees. Poultry Workers, Fish Handlers, Egg Candlers, Feed Millmen and Creamery Workers, Local No. 311, of Amalgamated Meat Cutters and Butcher Workmen of North America, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the Association, excluding bookkeepers, office clerks, timekeepers, and managers of packers' branch houses. III. THE QUESTION CONCERNING REPRESENTATION On March 28, 1938, the Association entered into a closed-shop agreement with Local 311 covering employees in the poultry plant at 45 West 7th South, herein called the 7th South plant. This contract provided that it should continue in force from year to year unless 30 days' notice of termination be given, and it is at the present time in effect. On April 4, 1938, a similar contract was executed which applied to employees in the Southwest Temple plant but which expired, according to its terms, in 1 year. It has not been renewed. On January 9, 1939, a majority, of the Southwest Temple employees authorized the Association to check off dues to the Independent. On April 13, the Independent sent to Local 311 a notice bearing the sig- natures of 45 persons who withdrew from Local 311 and canceled their selection of it as their agency for collective bargaining. On the same date the Independent gave written notice to the Association that it represented a majority of the, employees at the Southwest Temple plant and requested the Association to negotiate with it for the employees at that plant. The Association replied by letter that, .since it was faced with claims of, two unions, it would not negotiate with either unless it had been certified by the Board. UTAH POULTRY PRODUCERS COOPERATIVE ASSOCIATION 537 The Independent makes no claim of representation at. the 7th South plant, where the Association is bound by the closed-shop con- tract with Local 311. Local 311 took the position at. the -hearing that, in the event the Board should find inappropriate the unit for which it contended, consisting of the two plants together, it did not, desire to be certified for the employees in the 7th South plant alone. As set forth below, we are finding that the employees at the two plants together do not constitute a single appropriate unit. We ac- cordingly find that there is no question concerning representation of employees at the 7th South plant of the Association. We find that a question has arisen concerning representation of employees of the Company at its Southwest Temple 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 Associa- tion described in Section I above, has a close, intimate, and substan- tial 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 The- Association has approximately 6,000 members, located for the most part in Utah, who sell eggs to the Association and buy feed from it. The members in each geographical area each year elect one,, representative to the board of directors which in turn appoints from its membership an executive committee to conduct the business and exercise the'corporate functions of the Association., The Asso- ciation employs about 10 of the active producer-members in its South- west Temple plant. Local 311 contends that they should not be in- cluded in the bargaining unit. The Independent seeks their inclu- sion. ' The evidence shows that these employees receive no additional salary and have no special privileges by reason of their membership in the Association. Their employment with the Association is in no way connected with nor influenced by the fact that they happen to be among the 6,000 producers who sell products to the cooperative. In short, they are ordinary employees who happen also to have deal- ings with the Association on the side. We find that the producer- members should be included within the unit for collective bargaining. Local 311 takes the position that employees of both the Southwest Temple' plant and the 7th South plant, excluding foremen, office employees, and producers, should be combined in one unit. The In- dependent maintains that the plants should be considered separately 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and seeks to establish the appropriateness of a unit consisting of all employees at the Southwest Temple plant, excluding supervisory and managerial employees . The types of work performed by employees at the two plants , which are about a. mile apart, are substantially different. The history of collective bargaining and organizational activity for the two plants indicates that they have always been considered . separately. In fact, Local 311 , which now seeks to com- bine employees of the two plants in one unit, has recently had sep- arate contracts with the Association for each plant , as indicated above. The evidence shows that a majority of the employees at the 7th South plant are members of. Local 311 , and that a majority of those at the Southwest Temple plant have withdrawn from member- ship in Local 311, have formed an Independent Union, and have sought to establish a different bargaining agency. We find that under the circumstances in this case the two plants should not be combined in one unit for the purpose of collective bargaining. The Association owns a grain elevator , called the Lakeside Mill, which is located in Salt Lake City and which employs only one non- supervisory employee. This elevator is considered by all parties as a part of the Southwest Temple plant . We find that this employee. should be included within the unit of Southwest Temple employees. There were introduced in evidence pay rolls of the Association for both plants dated April 29, May 13, and July 1, 1939. The July 1 pay roll for the Southwest Temple plant includes the names of H. M. Blackhurst, manager of the feed department and assistant manager of the Association ; Ray Brady, foreman of the night crew; R. L. Cottrell, shift foreman in the manufacturing unit of the mill; Dale W. Ford, foreman and supervisor of the sack-cleaning department; Fred Knudsen, foreman of the feed mill; and Delmar Duncan, fore- man of the ' Lakeside Mill. These employees are unquestionably supervisory and will be excluded from the unit. We find that the employees of the Association at its Southwest Temple plant and Lakeside Mill, including those who are members of the Association, but excluding supervisory and managerial em- ployees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to. the employees of the Association the full benefit of their rights to self-organization and collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The Independent introduced at the hearing membership cards of 68 of the approximately 70 non-supervisory employees of the Associa- tion at the Southwest Temple plant. It requests certification upon this showing. However, all employees of the Southwest Temple UTAH POULTRY PRODUCERS COOPERATIVE ASSOCIATION 539 plant must have been members of Local 311 under the closed-shop contract for that plant. We find that the question which has arisen concerning the repre- sentation of employees of the Association can best be resolved by the holding of an election 'by secret ballot.' We shall direct that those eligible to vote shall be employees within the appropriate unit dur- ing''the pit'-roll"'?^erioct'" immedia't'ely "preceding our• Direction of Election. Local 311. did not indicate whether or not it would desire to appear on a ballot in an election conducted in such a unit as we have found appropriate . We shall direct that it be placed thereon , and if, with- in 5 days from the date of our Direction , it notifies the Board that it does not desire to be named on the ballot, we shall amend our Direction accordingly. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS qF LAW 1. A question affecting commerce has. arisen concerning the repre- sentation of employees of Utah Poultry Producers Cooperative As- sociation at its Southwest Temple plant and Lakeside Mill, Salt Lake City, Utah, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The employees of the Association at its Southwest Temple plant and Lakeside Mill, including those who are members of the Associa- tion, but excluding supervisory and managerial employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. No question has arisen concerning the ' representation of em- ployees of Utah Poultry Producers Cooperative Association in its plant at 45 West 7th South, Salt Lake City, Utah, within the mean- ing of Section 9 (c) 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 and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIREGIED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Utah Poultry Producers Cooperative Association, Salt Lake City, Utah, an election by secret ballot shall be conducted within 'Matter of The Cudahy Packing Company and United Packinghouse Workers of America, et at., 13 N. L. R. B. 526. 540 DECISIONS OF- NATIONAL LABOR `RELATIONS BOARD twenty (20) 'days from the date of this Direction under the direction and supervision of the Regional Director for the Twenty second 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 employees oil the Southwest Temple plant and Lakeside Mill of Utah Poultry' Producers` Cooperative As- sociation whose names appear upon the pay roll of the Association for the pay-roll period immediately preceding this Direction, in-' eluding employees who are members of the Association and including those 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 supervisory and managerial employees and those who have since quit or been discharged for cause, to determine whether they desire to be represented by Independent Union of Poultry Employees, or by Poultry Workers, Fish Handlers, Egg Candlers, Feed Millmen and Creamery Workers, Local •$311, of Amalgamated Meat Cutters and Butcher Workmen of North America, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. SAME, TITLE] AMENDMENT TO DIRECTION OF ELECTION October 3, 1939 On September 21, 1939, the. ;.National Labor Relations Board, herein called the Board, issued a Decision and. Direction of Election in the above-entitled proceeding, directing that an election be con- ducted within twenty (20) days from the date of the Direction, and providing that if, within five (5) days from the date of the Direction, Local #311 should notify the Board that it does not desire to be named on the ballot, the Direction would be amended accordingly. The Board, having been advised by Local #311 that it does not desire to be named on the ballot, hereby amends the Direction of Election issued. on September 21, 1939, by striking therefrom the words "whether they desire to be represented by Independent Union of Poultry Employees, or by Poultry Workers, Fish Handlers, Egg Candlers, Feed Millmen and Creamery Workers, Local #311, of Amalgamated Meat Cutters and .Butcher Workmen of North,Amer- ica, affiliated with the American Federation of Labor, for the pur- poses of collective bargaining, or by neither" and substituting therefor the words "whether or not they desire to be represented by Inde- pendent Union of Poultry Employees for the purposes of collective bargaining." 15 N. L. R. B., No. 59a.