Wilson & Co., Inc.

In the Matter of WILSON & Co., INC. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN AND HELPERS OF AMERICA, LOCAL #202, AFFILIATED WITH THE . A. F. -or-L. Case No. B-1874.-Decided July 27, 1940 Jurisdiction : meat packing industry. Investigation and Certification of Representatives : existence of question where employer refuses to accord full recognition to union ; prior certification no bar to ; election necessary. Unit Appropriate for Collective Bargaining Unit of chauffeurs and chauffeur luggers held to be appropriate although the Board more than a year before had certified another labor organization as representative of employees in a larger unit consisting of other employees as well as chauffeurs and chauffeur luggers because at the time of the hear- ing no organization other than the petitioning union claimed to represent the chauffeurs and chauffeur luggers and there was no showing that collective bargaining on an industrial basis had proceeded successfully with , the Company so far as the chauffeurs and chauffeur luggers were concerned. Mr. Daniel R. Dimick, for the Board. Mr. Marshal Wiedel, of'Chiccago;IlI's;'for the'Cbmpany. Mr. Murray A. Frank, of New York City, for the Union. Mr. Richard Johnston, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On December 12, 1939, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, Local No. 202, herein called the Union,' filed with the Regional Director for the Second Region (New York City), a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Wilson & Co., Inc.,_New York City, -herein -carlled-the Company, and request- 1 The Union is also known as Commission Drivers and Chauffeurs Union Local No. 202. The Company contends that the evidence fails to establish that the Union is a labor organi- zation. This contention is without merit. Among other things , it is shown that the Union is a local of International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, a labor organization , that employees of the Company have applied for membership in the Union, and that the Union requested collective bargaining of the Company. 25 N. L. R. B., No. 103. 938 WILSON & CO., INC. 939, ing 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 March 30, 1940; the National Labor Re lations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Rela- tions Board Rules and Regulations-Series 2, 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 13 the Regional Director issued a notice of hearing, copies, of which, together with copies of the petition, were duly served upon the Company, upon the Union, and upon Packinghouse Workers Organizing Committee, a labor organization affiliated with the Congress of Industrial Organizations. Pursuant to the notice and. notice of postponement, duly served upon the parties, a hearing was held on June 3 at New York City, before Daniel R. Dimick, the Trial Examiner duly designated by the Board. The Board, the Com- pany, and the Union were represented by counsel and 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. At the hearing the petition was amended in certain respects. 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. On June 6 the Company requested permission to submit a brief, and the Board thereafter granted this privilege to all parties. On June 22 the Company submitted a brief which it thereafter altered in certain respects. Upon the entire record in the case, the Board makes the following:- FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Wilson & Co., Inc., is a Delaware corporation licensed to do busi- ness in the State of New York. Its principal place of business is. at Chicago, Illinois. , The.Company is engaged in the purchase and slaughter of livestock and the processing, sale, and distribution of meat and meat products. The Company operates nine packing houses in as many different States where it slaughters and packs livestock. During the year ending October 31, 1939, .it purchased livestock worth approxi- mately $127,000,000, which it slaughtered and packed at these. packing houses. Of the livestock thus slaughtered and packed by 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company, about 15 percent is regularly purchased and trans- ported to the Company's packing houses from States other than those in which the packing houses are located. The meat and meat products thus prepared are sold by the Company and its subsidiaries throughout the United States. The total sales of the Company and its subsidiaries during the year ending October 31, 1939, were approximately $250,000,000. These proceedings concern employees at three of the Company's branch houses : the Mineola and Jamaica branches, which are located at Long Island, New York, and the Beekman branch, which is located in New York City. At these branches the Company sells its products to retailers, jobbers, and other purveyors, and at the Mineola branch the Company also manufactures sausage and smoked meat. 'During the year ending October 31, 1939, the Company sold about 34,882,000 pounds of meat, meat products, and allied prod- ucts at these three branches. All such products were, and reg- ularly are, shipped to the branches by common carrier from points outside the State of 'New York. All such products are sold by the branches to customers within ,the State of New York. The Company employs, exclusive of supervisory employees, a total of 83 employees at its Mineola branch, 27 at its Jamaica .branch, and 21 at its Beekman branch. H. THE 'ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, Local No. 202,2 is a local of International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, a labor organi- zation affiliated with the American Federation of Labor. The -Union admits to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION In connection with certain representation proceedings had before the Board in Matter of Wilson d Co. and United Meat Workers Local Industrial Union No. 635, A f}iliated with the Committee for -Industrial Organization, Cases No. R-929 to R-936, inclusive,3 the -Board on November 4, 1938, certified United Meat Workers Local Industrial Union No. 635, herein called the United, a labor organi- zation affiliated with the Committee for Industrial Organization, now known as Congress of Industrial Organizations, as the ex- clusive collective bargaining representative of all processing and 2 See footnote 1, supra. 39 N. L. R B. 650 (Decision and Certification of Representatives) ; 10 N. L., R. B. 675 .(Certification of Representatives). WILSON & CO., INC. 94Y operative employees of the Company, including luggers, scalers, shipping clerks, cutters, egg, handlers, sausage workers, and ham workers, and excluding supervisory and clerical employees, sales- men, and schoctim, at the Jamaica branch 4 of the Company, and' on December, 15, 1938, of employees within the above-mentioned- classifications at its Mineola branch.5 There is no showing, how- ever, that certification was followed by any collective agreement between the United and the Company covering working conditions-. of employees of these branches, and the Company has no such written collective contract with the United at the present time. Packing- house Workers Organizing Committee, a labor organization affiliated. with Congress of Industrial Organizations, a labor organization of which the United was or is an affiliate,6 makes no claim herein- to represent, for purposes of collective bargaining, any of the em- ployees involved in this proceeding, and it does not appear from the record - that any labor organization other than the Union now claims to represent such employees. In November 1939 the Union requested the Company to bargain collectively with it, as exclusive representative of chauffeurs and- chauffeur luggers' at the Mineola branch, and of chauffeurs at the- Jamaica branch. The Company refused to bargain, collectively with- the Union, on the ground that the United was the certified stat- utory representative- of these employees, among others, under the- certification above mentioned. Although the Union made no request of the Company prior ' to the hearing that the Company bargain collectively with the Union as the statutory representative of- chauffeurs employed at the Beekman branch, we do not think it essential for the Union to, have done so in, order for it to obtain a. determination of representatives as to' these employees. The Com- pany by its 'refusal to accede to the request of the Union for col - lective bargaining with respect to chauffeurs and chauffeur loggers. at the other branches had indicated, its general unwillingness to- recognize the Union as statutory representative of such employees until the status of the Union was determined by the 'Board." The Union properly could have assumed that had it requested collective-- A 9 N. L. R B. 650, 656. 610 N. L R. B. 675. 6 9 N. L R. B 650, 653 ° Chauffeurs and chauffeur luggers perform substantially the same kind of work On the- pay roll, of the Company the chauffeur luggers are described as "chauffeur & lugger." 6 At the hearing the following colloquy between the Trial Examiner and counsel for the Company was had : Trial Examiner DIMICK. It is my understanding that the, company objects to a certification upon the record? Mr. WIEnEL. Yes ; the company would prefer an election. Trial Examiner Dinner. That answer is equally applicable to all three plants? Mr. WIEDEL. Yes ; the same is true of each of the other three branches. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining for the Beekman branch chauffeurs, the Company would have insisted upon a similar determination of the status of the Union in that regard. In analogous situations we have held that irrespective of whether a request for collective bargaining has been made, the interested labor Organization "is entitled to have its status as a statutory bargaining agency clarified and to present that question concerning representation to the Board." 9 The certification above mentioned constitutes no ground for our not proceeding to an investigation and determination of the ques- tion which has arisen concerning representation of employees, at the three branches. More than 1 year has elapsed since the cer- tification issued,10 and, as set forth below," the findings made in the proceedings in which such certification issued, as to the appropriate collective bargaining units, are not controlling here. We find that questions have arisen concerning the representation of employees of the Company at its Mineola, Jamaica, and Beekman branch houses. IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON COMMERCE We find that the questions concerning representation which have arisen, occurring in connection with the operations of the Company described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States .and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNITS The Union took the position at the hearing that the chauffeurs and .chauffeur luggers 12 employed by the Company at each of the 9 Matter of National Mineral Company and Chrome Furniture, Handlers, and Miscella- neous Crafts Union, Local No. 658 of the Upholsterers' International Union , affiliated with the American Federation of Labor, 8ucccssors to Beauticians' Supplies and Co8metio Work- ers Union, Local 21107 (A. F. of L.), 25 N. L. R. B. 3. See also, Matter of Jameson Company and Corona Citrus Workers Industrial Union, Local # 342 of the United Cannery, Agricultural, Packing and Allied Workers of America, C. 1. 0., 25 N. L. R. B. 64; Corona Citrus Association and Corona Citrus Workers Industrial Union, Local # 342 of the United Cannery, Agricultural, Packing and Allied Workers of America, C. I. 0., 25 N. L. R. B 77. In any event , these proceedings involve questions concerning representation as to the Mineola and Jamaica branches, and the Board in determining those questions can consider as incident thereto representation of the Beekman chauffeurs. 10 Matter of Minneapolis-Moline Power Implement Company and International Assoola- tion of Machinists, Local #1037, by District Lodge 77 (A. F. of L.), 14 N. L. R. B. 920; -cf. Matter of Wickwire Spencer Steel Company and Federated Industrial Union, 18 N. L. _R B 372; Matter of Westinghouse Electric & Manufacturing Company and United Electrical, Radio & Machine Workers of America, Local 724 , affiliated with the Congress of ,Industrial Organizations, 14 N. L. R. B 263 n See Section V, infra. i2 See footnote 7, supra. WILSON & CO., INC. 943 three branch houses, i. e., the Mineola, Jamaica, and Beekman branches, constitute a separate unit appropriate for the purposes of collective bargaining. The Company employs seven such em- ployees at the Mineola branch, six at' the Jamaica branch, and three at the Beekman branch. It also employs at these branches various other employees, including salesman and clerical workers. The chauffeurs and chauffeur luggers unload various products of the Company received at the branch houses, load products on trucks, and deliver products by truck to the stores of customers. Each chauffeur or chauffeur lugger delivers the entire line of prod- ucts handled at the branch where he works, including butter, cheese, eggs, smoked meats, fresh pork, casings, canned meats, soap, beef cuts, sausage material, sausage, dog food, oleomargarine, and mayonnaise. At the Mineola and Jamaica branches he also delivers carcass meats. The Company in its brief calls the attention of the Board to certain inaccuracies in-the description of the allegedly appropriate units as contained in the petition, as amended. However, it is clear from the record that the position of the Union in respect to the appropriate units is that heretofore set forth. ' We have held in many cases that employees such as chauffeurs and chauffeur luggers may constitute under certain circumstances a distinct and appropriate collective bargaining unit, separate from other em- ployees of the employer. The traditional form which organiza- tion of such employees has taken, as well as differences in function between their work and that of other employees, has permitted their establishment under certain circumstances as a separate col- lective bargaining group or unit. While, as above mentioned, the chauffeurs and chauffeur luggers at two of the branches were found by the Board in November 1938 then to be part of larger industrial units consisting of other employees'" well as,-themselves,13 " appar- ently neither the United nor any other labor organization, apart from the Union, here claims to represent these chauffeurs and chauffeur luggers, and there is no showing that collective bargain- ing on an industrial basis has proceeded successfully with the Com- pany- in so far as these chauffeurs and chauffeur luggers are con- cerned. Under these circumstances, -we are of the opinion, and find, that the units here contended by the Union to be appropriate for collective bargaining are appropriate. We find that all chauffeurs and chauffeur luggers employed by the Company at each of the following branch houses, viz., the Mineola and Jamaica branches at Long Island, New York, and the Beekman branch in New York City, constitute a separate unit - 9 N. L. R. B. 653, 654. 944 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD appropriate for the purposes of collective bargaining, and that each such unit will 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 the Act. VI. THE DETERMINATION OF REPRESENTATIVES On May 11, 1940, the Company employed seven chauffeur luggers at its Minneola branch, six chauffeurs at the Jamaica branch, and three chauffeurs at the Beekman branch. From a statement made by the Trial Examiner at the hearing it appears that a substantial number of the chauffeurs and chauffeur luggers at each of these branches applied for membership in the Union, thereby designating the Union as their collective bargaining representative. We believe that the questions which have arisen concerning the representation of employees of the Company can best' be resolved by holding separate elections by secret ballot among employees in the three units to determine their desires with regard to representation. Accordingly, we shall direct that' elections by secret ballot be held within the above- described units, subject to such limitations as may be stated in the Direction of Elections: Although the Union requested that for purposes of eligibility to vote, employment during the pay-roll period of 1 week before the hearing •be determinative, we see no reason to depart from our, customary procedure of directing that employment during the pay-roll period next preceding the date of the Direction of Elections be determinative. Inasmuch as the Union stated at the hearing that in the event. of elections being directed, it desired its name to appear on the ballot as Commission Chauffeurs & Drivers Union No. 202, .we shall make our Direction of Elections accordingly. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF L &w 1. Questions affecting commerce have arisen concerning the rep- resentation of employees of Wilson & Co., Inc., New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All chauffeurs and chauffeur luggers employed by the Com- pany at each of the following branch houses, viz., the Mineola and Jamaica branches at Long Island, New York, and the Beekman branch in New York City, constitute a separate unit appropriate for the purposes of collective bargaining, within the meaning of .Section 9 (b) of the National Labor Relations Act. WILSON & CO., INC. DIRECTION OF ELECTIONS 945 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations 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 Wilson & Co., Inc., New York City, separate 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 of the Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article 111, Section 9, of said Rules and Regulations, among all chauffeurs and ,chauffeur luggers at each of the following branch houses of the Company, viz., the Mineola, and Jamaica branches at Long Island, New York, and the Beekman branch in New York City, employed by the Company during the pay-roll period immediately preceding the date of this Direction of Elections, including employees who did not work during such pay-roll period because they were ill, on vacation, or temporarily laid off, but excluding all employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Commission Chauf- feurs & Drivers Union No. 202; for the purposes of collective bargaining. MR. WILLIAM M. LEIsERsoN took no part in the consideration of the above Decision and Direction of Elections.