Armour & Co.

In the Matter of ARMOUR & COMPANY and LOCAL # 566, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA Case No. R-1,58.Decided October 24, 1939 Meat Packing Industry-Investigation of Representatives : controversy con- cerning representation of employees : employer questions majority of petitioning union ; rival organizations ; controversy as to appropriate units-Contract: oral agreement for recognition only does not preclude investigation and certification of representatives-Units Appropriate for Collective Bargaining: craft or plant: elections to determine ; single election among all employees in motive-power de- partment requested by craft unions refused where said unions maintain separate organizations with mutually exclusive jurisdictions ; separate unit of firemen, coal passers, and laborers in motive-power department if election shows these employees desire it ; separate unit of engineers and brine men in motive-power department if election shows these employees desire it ; unit composed of all other production and maintenance employees including livestock drivers, but excluding foremen, assistant foremen, salesmen , teamsters, clerical and office employees, policemen or watchmen , box pullers, supervisory employees, and steady-time checkers-Elections Ordered Mr. Stephen M. Reynolds, for the Board. Mr. Walter C. Kirk, of Chicago, Ill., for the Company. Mr. E. W. Jimerson, of East St. Louis, Ill., for the Amalgamated. M^. John J. Brownlee, of Chicago , Ill., for the United. Mr. William H. Blake, of Peoria, Ill., for the Firemen & Oilers and for the Engineers. Mr. Robert F. Koretz, of counsel to the Board. DECISION AND DIRECTIONS OF ELECTIONS STATEMENT OF THE CASE On June 12, 1939, Local # 566, Amalgamated Meat Cutters and Butcher Workmen of North America, herein called the Amalgamated, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois ) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Armour & Com- pany, Peoria, Illinois, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 16 N. L. R. B., No. 38. 334 ARMOUR & COMPANY 335 9. (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 14, 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 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On July 20, 1939, the Acting Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the Amalgamated, and upon United Packinghouse Workers of Amer- ica of Packinghouse Workers Organizing Committee, herein called the United, a labor organization claiming to represent employees directly affected by the investigation. On July 27, 1939, the Acting Regional Director granted a petition, dated July 25, 1939,- filed with him by the United to intervene as a party. On August 3, 1939, during the hearing, the Trial Examiner granted a joint motion to intervene as parties filed on that date by International Brotherhood of Firemen & Oilers, Local No. 8, herein called the Firemen & Oilers, and Inter- national Brotherhood of Operating Engineers; Local No. 8, herein called the Engineers, labor organizations claiming to represent certain employees in the unit claimed by the United in its motion to intervene to be appropriate. Pursuant to the notice, a hearing was held on August 3, 1939, at Peoria, Illinois, before Thomas H. Kennedy, the Trial Examiner duly designated by the Board. The Board and the Company were repre- sented by counsel; the Amalgamated, the United, the Firemen & Oil ers, and the Engineers were represented by duly authorized representa- tives. All participated in the hearing. Full opportunity to be heard, to examine 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. At the close of the hearing, the Company moved to dismiss the United's petition to intervene in the proceedings. The Trial Examiner made no ruling on the motion. For reasons sufficiently appearing hereinafter this motion is hereby denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Armour & Company, an Illinois corporation,- directly and through subsidiaries, operates approximately 30 meat-packing plants located 336 DECISIONS OF'. NATIONAL LABOR RELATIONS BOARD in some 23 States and' about 300 'wholesale meat-distributing houses known as branch houses throughout the United States. Through Armour & Company of Delaware, a Delaware corporation which is a subsidiary of, and is controlled in its operations by, the Illinois cor- poration, Armour & Company operates a packing plant at Peoria, Illinois, herein called the Peoria plant. During the fiscal year ending October 31, 1938, over 186,000 animals, having a value of approxi- mately $4,400,000, were purchased and slaughtered at, the Peoria planet. About 10 per cent of this livestock originated in .States; other than Illinois and was either purchased from commission men doing business in the stockyards at Peoria or purchased. elsewhere and shipped directly to the Peoria plant. Approximately 13 per cent of the prod- ucts of the plant are shipped to points outside the State of Illinois. Delivery of fresh meat and other perishable products is effected by means of refrigerator cars and trucks. A considerable portion of the output of the plant is shipped to wholesale branch distributing houses of Armour & Company in other cities. Approximately 315 employees, excluding office workers, are em- ployed at the Peoria plant. II, THE ORGANIZATIONS INVOLVED Local #566, Amalgamated Meat Cutters and Butcher Workmen of North America, chartered by Amalgamated Meat Cutters and Butcher Workmen of North America, a labor organization affiliated with the American Federation of Labor, admits to membership employees at the Peoria plant. United Packinghouse Workers of America of Packinghouse Work- ers Organizing Committee, a labor organization affiliated with the Congress of Industrial Organization, also admits to membership employees at the Peoria plant. International Brotherhood of Firemen & Oilers, Local No. 8, affili- ated with the American Federation of Labor, is a labor organization admitting to membership the firemen, coal passers, and laborers em- ployed at the Peoria plant in the motive-power department. International Brotherhood of Operating Engineers, Local No. 8, affiliated with the American Federation of Labor, is a labor organi- zation admitting to membership the engineers and brine men em- ployed at the Peoria plant in the motive -power department. III. THE QUESTION CONCERNING REPRESENTATION According to the testimony of John M. Borger, superintendent of. the Peoria plant, and of William H. Blake, who had represented the Firemen & Oilers in negotiations' with Borger, the management has dealt with the Firemen & Oilers and the Engineers as the repre- ARMOUR c. COMPANY 337 sentatives of employees in the motive-power department for approxi- mately 18 months. Both Borger and Blake testified that early in June 1939, an oral agreement was made with these organizations and that there had been a prior oral agreement, the nature of which _was not made clear. After stating generally that the recent agree- ment covered wages, hours, and working conditions, Borger, on cross- examination, testified that no contract had been entered into, and, upon the advice of counsel, declined to. answer further questions as to the terms of the alleged agreement. We should not be inclined to credit Borger's testimony under these' circumstances, but we think that, in any event, his examination sufficiently discloses that there is at most a "working agreement" which provides that the Company will recognize the Firemen & Oilers and the Engineers as the repre- sentatives of employees in the motive-power department. This con- clusion is corroborated by the testimony of Blake, who according to Borger, had negotiated the agreement together with Robison of the Engineers. Blake testified that the agreement, which he said was for 1. year. "is one of recognition," and gave no testimony as to any other terms.' Such an agreement for recognition only cannot particularly in view of Borger's admission that the Firemen & Oilers and the Engineers had sought a written agreement in June-pre- elude an investigation and certification of representatives for the purposes of collective bargaining.2 In March and April 1939, the United and the Amalgamated began .organizational campaigns among the Company's employees. In May 1939, the Amalgamated asked for recognition as bargaining repre- sentative for employees and submitted a proposed contract. Subse- quently, the Company advised the Amalgamated that this organza- t,ion would not be recognized until it was certified by the Board. About 3 weeks prior to the hearing on the petition filed by the Amal- gamated, certain employees who had become members of the United met and voted to set up a local to be chartered by the United, and at a meeting held on July 27, 1939, they elected ^ officers and voted to apply for a charter. As stated above, the petition of the United, dated July 25, 1939, for leave to intervene was granted by the Acting Regional Director on July 27, 1939. Although the United has not sought to bargain with the Company, it claims that it has been desig- nated as bargaining representative by a majority of the Company's 'In considering the effect of the "working agreement" upon the question concerning representation, we have followed the terminology of Borger and Blake. However, the fact that these negotiations were carried on by Blake for the Firemen & Oilers, and by Robison for the Engineers, as stated in Section V, infra, leads us to the conclusion that the so-called agreement was, at most, an understanding that these labor organizations would be treated with as representing the employees within their jurisdictions. 2 Compare Matter of Se.iss Manufacturing Company and Committee for Industrial Organization, 7 N. L. R. B. 481. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the unit which it asserts is appropriate for the purposes of collective bargaining, and, as stated in Section V below, is not in agreement with either the Amalgamated or the Firemen & Oilers and the Engineers as to the appropriate unit. As also stated above, the Company moved at the close of the hearing to dismiss the petition of the United to intervene. The Company con- tended, in effect, that no question concerning representation might be urged by the United in the absence- of proof of authorization by em- ployees of the Company to the United to file the petition. The con- tention is not one which may be urged by an employer.a We find that a question has arisen concerning the 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 tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Amalgamated contends that all the production and maintenance employees of the Company, including livestock drivers and steady- time checkers, but excluding foremen, assistant foremen, salesmen, teamsters, clerical and office employees, policemen or watchmen, box pullers, supervisory employees, and the employees in the motive-power department, constitute a unit appropriate for the purposes of collec- tive bargaining. The United differs in its contention as to the appro- priate unit in that it would exclude livestock drivers and steady-time checkers, and include the employees in the motive-power department. The Company desires the inclusion in the unit of box pullers and live- stock drivers and maintains a neutral position concerning the employ- ees in the motive-power department. The Firemen & Oilers and the Engineers urge a single and separate unit for employees in the motive- power department. Employees in the Motive-Power Department. The Company's pay roll for the pay-roll period ending July 29, 1939, which was introduced into evidence, discloses that there are 15 employees in this department: 4 coal passers, 4 firemen, 4 engineers, 2 brine men, and 1 laborer. Al- SMatter of The Sorg Paper Company and Committee for Industrial Organization, 8 N. L. R. B. 657. ARMOUR & COMPANY 339 though a large part of their work is performed in a separate building adjacent to the main-plant building, the coal passers make periodic rounds through the plant to test temperature, and the brine men per- form some of their duties in the main-plant building. The supply of electric power, refrigeration, and steam which is used in the plant and which is essential to plant operation is dependent upon the continuous functioning of this department. The record discloses that the Fire- men & Oilers and the Engineers have bargained frequently with the Company as the representatives of these employees for a period of approximately 18 months. It appears that both a representative of the Firemen & Oilers and a representative of the Engineers have attended these bargaining conferences. Both organizations ask that their names be placed jointly on a ballot in the event an election is directed in which the employees in the motive-power department par- ticipate. However, the Firemen & Oilers and the Engineers have maintained and propose to continue, their separate identity. They have claimed, and proposed to continue to claim, mutually exclusive jurisdictions 4 over employees in the motive-power department. Un- der all of these circumstances, we find that the engineers and brine men could appropriately bargain as a separate unit, and that the fire- men, coal passers, and laborers could also bargain as a separate unit. A consideration of all the facts leads us to the further conclusion that the employees in the motive-power department could appropriately bargain as separate units or as part of the industrial unit which will be defined hereinafter. In similar cases 5 we have held the desires of the employees to be the determining factor. On this matter, however, the record is not conclusive. While the Firemen & Oilers and the Engineers claimed that all of these employees were members of, and had desig- nated one of those unions as their representative, neither offered any documentary proof. An organizer for the United testified that a "substantial number" of those employees had designated the United as their representative; and an organizer for the Amalgamated testified that "eleven or fifteen" of these employees had sought to join the Amalgamated, apparently upon the assumption that it was organized on a completely industrial basis. Therefore, we are unable to determine the desires of these employees upon the basis of the evidence introduced at the hearing. Accordingly, upon the results of elections directed 4 See Section II, supra. 5 See Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No. 3. et al.. 3 N. L. R. B. 294 ; Natter of Alti.o-Chalmerv Manufacturing Company and International Union, United Automobile Workers of America, Local No. 248, 4 N. L. R. B. 159; and subsequent cases, including Matter of Armour d Company and Amalgamated Meat Cictters and Butcher Workmen of North America, Local No. 61,1, 9 N. L. R. B. 1295: Matter of Locke Insulator Corporation and Congress of Industrial Organizations, 13 N. L. R. B. 615. 340 DECISIONS OF NATIONAL LABOR'RELATIONS BOARD below will depend the determination of whether these employees will constitute separate units or will be merged into the industrial unit. Box Pullers. The United and the Amalgamated both desire the exclusion of these workers, while the Company contends that they are maintenance employees and should, therefore, be included in the indus-. trial unit. At-the request of both labor organizations we shall exclude them from the unit.6 Livestock Drivers. The United contends that livestock drivers should be excluded from the unit; the Amalgamated and the Company urge their inclusion. The Company has three such employees engaged in bringing livestock from the stockyards to the plant, one of whom spends some of his time inside the plant tending hogs. We find that these employees are engaged in tasks.closely related to the duties of other employees performing production and maintenance work, and we shall, therefore, include them in the unit. Steady-time Checkers. The United also contends that steady-time checkers should be excluded from the unit, while the Amalgamated urges their inclusion. Evidence was adduced concerning the duties of one of such employees, Arthur Hackman, who checks the' numbers of empty cars that come into the plant for loading and icing, keeps icing records, and checks products leaving the plant in cars or trucks. It thus appears that the work of the steady-time checkers is essentially clerical in nature, and we shall, therefore, exclude them from the unit.? Other Employees. In accordance with our previous decisions and at the request of the Company and the labor organizations involved, we shall exclude foremen, assistant foremen, salesmen, teamsters, clerical and office employees, policemen or watchmen, and supervisory employees from the unit." We find that all production and maintenance employees of the Company, including livestock drivers, but excluding foremen, assist- ant foremen, salesmen, teamsters, clerical and office employees, police- men or watchmen, box pullers, supervisory employees, and steady- time checkers, may properly constitute a unit appropriate for the purposes of collective bargaining which would 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 0 We have excluded box pullers from an industrial unit in Matter of Armour & Company and United Packinghouse Workers , Local Industrial Union No . 13 of the Packinghouse Workers Organizing Committee, affiliated with the C. 1. 0., 13 N. L. R. B . 567. The duties of such employees are described in footnote 4 therein. 7Cf. Matter of *Armour & Company and Packinghouse Workers Organizing Committee for United Packinghouse Workers, Local 347, etc., 8 N. L. R. B. 1100. s See, e. g., Matter of The Cudahy Packing Company and United Packinghouse Workers of America, Local No. 21. of the Packinghouse Workers Organizing Committee , affiliated with. the Congress of Industrial Organizations , 13 N. L. R. B. 526 ; Matter of Armour & Company and Local No. 54, United Packinghouse Workers of America, of Packinghouse Workers Organizing Committee, affiliated with the C. I. 0., 14 N. L. R. B. 865. ARMOUR & COMPANY 341 the Act. As indicated above, firemen, coal passers, and laborers in the motive-power department , and engineers and brine men in the motive-power department may or may not be included in such unit, depending on the results of elections which we shall order . We shall therefore make no final determination of the appropriate unit pend- ing th'e'elections to beheld alnong.the.employees in the motive-power department. VI. THE DETERMINATION OF REPRESENTATIVES The Company's pay roll for the pay-roll period ending June 29, 1939, shows, that there are approximately 271 employees in the indus- trial unit set out above, and 15 employees in the motive-power de- partment. As stated above, in Section V, we are unable to determine the desires of the employees in the motive-power department on the. basis of the evidence adduced at. the hearing. The Amalgamated submitted 203 authorization cards, which it asserted were signed by employees in the unit which it claimed to be appropriate. Of these cards 51 were rejected and 152 were admitted into evidence subject to the. condition that they be checked against the Company's records for purposes of authentication in the event that the Board should decide to certify representatives without an election. The United claimed that it had been designated as bargaining representative by approximately 150 employees in the unit which it claimed appro- priate, but introduced no evidence in support of this claim and con- curred in a request by the Company for an election to determine representatives. Under these circumstances we find that the question concerning representation can best be resolved by means of elections by secret ballot.' For the reasons stated above in Section V, we will direct three separate elections. One, election shall be conducted among the em- ployees in the industrial unit set out in Section V, hereinafter called the industrial unit, to determine whether they desire to be represented by the Amalgamated, or by the United, or by neither. Another elec- tion shall be conducted among the firemen, coal passers, and laborers in the motive-power department to determine whether they desire to be represented by the Firemen & Oilers, or by the United, or by neither. A third election shall be conducted among the engineers and brine men in the motive-power department to determine whether they desire to be represented by the Engineers, or by the United, or by neither. e Cf. Matter of The Cudahy Packing Company and United Packinghouse Workers of America, Local No . 21, of the Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial organizations, 13 N. L. R. B. 526. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If a majority of the employees in any of the,groups mentioned above select one of the organizations affiliated with the American Federation of Labor to represent them, the, employees in said. group shall constitute a separate bargaining unit. If a majority of the employees in any one group, or in each of more than one group, select the United, all the employees in the group or groups which so desig- nate the United shall constitute a single bargaining unit. We shall direct that the employees eligible to vote in the elections will b^, those who were employed by the Company during the pay-roll period immediately preceding the date of the Direction of Elections, 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 : CONCLUSION OF LAW A question affecting commerce has arisen concerning the representa- tion of employees of Armour & Company, Peoria, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTIONS 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 DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Armour & Company,' Peoria, Illinois, elections by secret ballot shall be conducted as early as possible but not later than thirty (30). days from the date of this Direction of Elections under the direction and supervision of the Regional Director for the Thirteenth 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: 1. Among all production and maintenance employees who were employed by the Company during the pay-roll period immediately preceding the date of this Direction, including livestock drivers, and 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, assistant foremen, salesmen, teamsters, clerical and office employees, policemen ARMOUR & COMPANY 343, or watchmen, box pullers, supervisory employees; steady-time check- ers, the firelneii, coal passers, engineers, brine men and laborers em- ployed in the motive-power department, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Local #566, Amalgamated Meat Cutters'' and Butcher Workmen of North America, affiliated with the Ameri- can Federation of Labor, or by United Packinghouse Workers of America of Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither ; 2. Among the firemen, coal passers, and laborers in the motive- power department who were employed by the Company during the pay-roll period immediately 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 employees who have since quit or been discharged for cause, to determine whether they desire to be represented by International Brotherhood of Fire- men & Oilers, Local No. 8, affiliated with the American Federation of Labor, or by United Packinghouse Workers of America of Pack- inghouse Workers Organizing Committee, affiliated with the Con- gress of Industrial Organizations, for the purposes of collective bar- gaining, or by neither; 3. Among the engineers and brine men in the motive-power depart- ment who were employed by the Company during the pay-roll period immediately preceding the date of this Direction, including employ- ees 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 discharged for cause, to determine whether they wish to be represented by International Brotherhood of Operating Engineers, Local No. 8, affiliated with the American Federation of Labor, or by United Packinghouse Workers of America of Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, concurring : The record discloses that the Firemen & Oilers and the Engineers had been organized and had bargained with the Company approxi- mately a year before the advent of either the Amalgamated or the United. In view of this history of bargaining relations between the Company and the Firemen & Oilers and the Engineers, I concur in the decision to give the employees in these craft groups the oppor- 247383-40-vol. 16-23 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tunity to vote either to be represented as separate units or to merge their interests with their fellow employees in the industrial unit.10 MR. WILLIAM M. LEISERSON, concurring in part and dissenting in part : I agree that three separate ballots must be spread among : the engi- neers and brine men; the firemen, coal passers, and laborers; and the. production and maintenance employees. It is not necessary in this case, however, to postpone determination of the bargaining units until the results of the election are known. The facts developed by the investigation of the representation question require a finding that the employees have organized themselves into three separate bargaining units, each of which is appropriate for the purposes of the Act. 10 See my concurring opinions in Matter of Locke Insulator Corporation and Congress of Industrial Organizations, 13 N. L. R. B. 615, and,cases therein cited in.footnote i.