Hy-Grade Food Products Corp.

In the Matter of HY-GRADE FOOD PRODUCTS CORPORATION and INTERNA- TIONAL UNION OF OPERATING ENGINEERS , LOCAL No. 5, (A. F. L.) Case No. R-1660.Decided February 5, 194.0 Meat Packing Industry-Investigation of Representatives: controversy con- cerning representation of employees : controversy concerning appropriate unit ; refusal by employer to recognize petitioning craft union as representative of engineers because of existing plant-wide contract with industrial union-Unit Appropriate for Collective Bargaining: factors evenly balanced; engineers suf- ficiently distinct to constitute a separate unit ; determining factor desires of engineers; election to determine-Election Ordered: among engineers. Mr. Arthur O'Connor, for the Board. Bratton and Bratton, by Mr. Guy G. Bratton and Mr. Robert E. Bratton, of Detroit, Mich., for the Company. Mr. Frank S. Easby-Smith, of Washington, D. C., Mr. Edward Barnard, by Mr. Valois E. Crossley, of Detroit, Mich., Mr. Frank I. Martel and Mr. Max McCusker, of Detroit, Mich., for the Operating Engineers. Mr. Leondies McDonald and Mr. Charles Kiser, of Detroit, Mich., for the United. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 20, 1939, International Union of Operating Engineers, Local No. 5, (A. F. L.) herein called the Operating Engineers, filed with the Regional Director for the Seventh Region (Detroit, Mich- igan ) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Hy-grade Food Products Corporation, Detroit, Michigan, herein called the Company, 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 December 1, 1939, the National Labor Rela- tions Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations 20 N. L. R. B., No. 12. 139 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 December 6, 1939, the Operating Engineers filed an amended petition. On December 6, 1939, the Acting Regional Director issued a notice of hearing, copies of which were duly served -upon the Company, the Operating Engineers, and upon United Packing House Workers of America, Local 69, affiliated with the Congress of Industrial Organiza- tions, herein called the United, a labor organization claiming to repre- sent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on December 14 and 15, 1939, at Detroit, Michigan, before Herbert Wenzel, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel, the Operating Engineers by counsel and two of its officials, and the United by two of its officials. All parties par- ticipated 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 objections to the admission of evidence and the form of questions. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On January 16, 1940, a hearing was held before the Board at Wash- ington, D. C., for the purpose of oral argument. The Operating Engineers appeared and presented argument. The Company and the United did not appear. The Operating Engineers also filed a brief which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, 'Hy-grade Food Products Corporation, is a New York corporation engaged in the meat-packing and slaughtering business. It manufactures, processes, sells, and distributes beef, veal, mutton, pork, and related products. Its principal office and place of business is in New York City. It maintains and operates plants, warehouses, and sales offices at Buffalo, New York; Wheeling, West Virginia ; Fostoria, Ohio ; Cleveland, Ohio ; and Detroit, Michigan. This proceeding concerns only the Detroit plant. Between July 1, 1939, and November 1, 1939, the gross value of the shipments of raw materials to the Detroit plant from points outside Michigan amounted to $7,836,073.63, which constituted more than, 50 per cent of the gross value of all purchases and raw materials for that plant HY-GRADE FOOD PRODUCTS CORPORATION 141 during that period. During the same period the gross value of the Company's shipments of finished products from the Detroit plant to destinations outside Michigan amounted to $9,298,548 .43, which con- stituted more than 50 per cent of the gross volume of all sales of finished products of • that plant during that period. The Company advertises its products in numerous newspapers throughout the United States. The Company employs approximately 1,200 workers in the Detroit plant . The Company admits that it is engaged in interstate commerce and that its business affects commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED International Union of Operating Engineers, Local No. 5, (A. F. L.), is a labor organization affiliated with the American Federation of Labor. It admits to membership powerhouse employees. United Packing House Workers of America, Local 69, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership all production and maintenance employees of the Company, excluding watchmen and supervisory and clerical employees. III. THE QUESTION CONCERNING REPRESENTATION The United began organizing the Company's employees in January 1938. On November 22, 1938, the United filed with the Regional Director a petition for an investigation and certification of represent- atives, stating in the petition that all hourly and piece -rate workers of the Company constitute an appropriate bargaining unit. In January 1939 the Operating Engineers began organizing among the employees in the powerhouse. On March 30, 1939, the Company, the United, and an independent employees', association then in existence among the Company's employeeg entered into an agreement for a consent election, to be held under the auspices of the Board's Seventh Regional Office, to determine the bargaining representative of all production employees , excluding watchmen and supervisory and clerical employees. Shortly prior to March 30, 1939, the Operating Engineers informed the Board 's Field Examiner, who participated in the negotiations leading to the agreement for the consent election, that they intended to challenge the votes cast by the engineers in the powerhouse in the proposed consent election. On April 18, 1939, the consent election was held. The votes of all workers in the power- house were challenged by the Board's Field Examiner on behalf of the Operating Engineers. On April 19, 1939, the Regional Director announced that the United had won the election by a wide majority. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The votes of the powerhouse workers were not counted as they could not in any event have affected the majority of the United. On April 20, 1939, the Operating Engineers filed the petition in the present proceeding. On August 24, 1939, the Company entered into an agreement with the United. In this agreement the Company recognized the United as the sole bargaining agent for all hourly and piece-work production and maintenance employees. This agree- ment expires August 24, 1940. On September 14, 1939, the Com- pany upon request refused to bargain with the Operating Engineers as the representative of the four engineers in the powerhouse on the ground that its contract with the United covered the engineers. 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The Operating Engineers contend that the engineers in the power- house, of whom there were four at the time of the hearing, constitute an appropriate bargaining unit. In support of their contention they point out that the engineers serve a long apprenticeship and are a skilled group, that they are licensed by the city and have special responsibilities,, and that engineers are nationally recognized as a distinct craft. They work in a separate powerhouse room in the plant and do not intermingle with employees engaged' in the manu- facturing processes. The United contends that the engineers do not constitute an appro- priate unit and should not be established as a separate bargaining unit, maintaining that the engineers are covered by its contract with the Company which is applicable to "all hourly and piece-work pro- duction and maintenance employees." The engineers are paid on an hourly basis. The business agent of the United testified that the engi- neers had at one time signed United membership cards and that one engineer had requested the United to make an adjustment in wages for him with the Company since the signing of the contract of August 24, 1939. HY-GRADE FOOD PRODUCTS COiRPORATION 143 As set forth in Section III above, the Operating Engineers began organizing the engineers at the Detroit plant in January 1939, and made known its claim for a separate bargaining unit prior to the consent election in April, in which election the votes of the power- house employees, including the engineers, were challenged on behalf of the Operating Engineers. Also the Operating Engineers filed the petition in this proceeding prior to the execution of the contract between the Company and the United. The Operating Engineers claimed, and introduced evidence to show, that all four engineers employed. at the Detroit plant at the time of the hearing were members. Since it appears from the evidence that the engineers in the power- house could function either as a separate unit or as part of a single industrial unit, we hold that the determining factor is the desire of the employees themselves.' We find in Section VI below that an election is necessary to deter- mine the desires of the engineers in the powerhouse with regard to representation for the purposes of collective bargaining. The election which we shall direct will be held among the engineers in the power- house to determine whether they wish to be represented by the Oper- ating Engineers or the United or neither. If a majority of the engi- neers cast their votes for the Operating Engineers, we shall hold that the engineers in the powerhouse constitute a separate unit and we shall certify the Operating Engineers as the exclusive representative thereof. If the majority of the engineers cast their votes for the United or for neither or if the votes cast for the United and for neither together constitute a majority, we shall conclude therefrom that the engineers do not desire to constitute a separate unit. In such event we shall dismiss the petition of the Operating Engineers. VI. THE DETERMINATION OF REPRESENTATIVES The Operating Engineers introduced in evidence an affidavit signed by all four engineers in the powerhouse. This affidavit was signed on December 13, 1939, and stated that the affiants were members of the Operating Engineers. One of the afiants identified the affidavit and the signatures thereon and testified concerning its execution. As stated above, the engineers had at one time signed membership cards of the United. Under the circumstances we find that an election by secret ballot is necessary to resolve the question concerning representa- tion of the engineers in the powerhouse. The names of the engineers in the powerhouse whom the Operating Engineers are seeking to represent were read into the record and are I 1 Matter of The Globe Machine and Stamping Company and Metal Polishers Union, Local No. 3, a N. L. R. B. 294; Matter of L. B. Lockwood Company and International Brotherhood of Firemen and Oilers, Local Union #52 (A. F. of L.), 16 N. L. R. B. 65. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD listed below in Appendix A. In the election which we shall direct, the employees listed in Appendix A, including engineers in the power- house who have been hired since the date of the hearing, but excluding those who have since quit or been discharged for cause, shall be eligible to vote. 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 repre- sentation of employees of Hy-grade Food Products Corporation, Detroit, Michigan, at its Detroit plant, within the meaning of Sec- tion 9 (c) and Section 2 (6)• and (7) 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, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargain- ing with Hy-grade Food Products Corporation, Detroit, Michigan, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Seventh 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 the engineers in the powerhouse of the Company at its Detroit, Michigan, plant whose names are listed in Appendix A, including those hired since the date of the hearing, but excluding those who have since quit or been discharged for cause, to determine whether said employees desire to be represented by International Union of Operating Engi- neers, Local No. 5, (A. F. L.), or by United Packing House Workers of America, Local 69 (C. I. O:), for the purposes of collective bar- gaining, or by neither. MR. EDWIN S. SMITH, dissenting : I would not grant the engineers in. the powerhouse the privilege of setting themselves apart in a bargaining unit separate from the industrial unit in this case. The reasoning in my dissents in the HY-'GRADE FOOD PRODUCTS CORPORATION 145 Allis-Chalmers 2 and subsequent cases is applicable here. There is no bargaining history between the Company and the Operating En- gineers which appeared on the scene after the United had organized the employees at the plant. The plant-wide contract between the United and the Company , entered into on August 24, 1939, after the United had been chosen at a secret election as the collective bargaining representative by a majority of the production and main- tenance employees, is an. exclusive bargaining contract and covers the engineers in the powerhouse .. Since the execution of that con- tract at least one engineer has requested the United to make an adjustment in wages for him with the Company. Under these cir- cumstances , I would dismiss the petition. APPENDIX A Engineers Reginald J. Snover. William J. Neil. Ross O. Broadbridge. Wellington L. Snover. 2 Matter of Allis -Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 2¢8, 4 N. L. R. B. 1.59. See also hatter of Fair- banks, Morse & Company and Pattern Makers Association of Beloit, 7 N. L. R. B. 229.