Armour and Co.

In the Matter of ARMOUR AND COMPANY and UNITED PACKING HOUSE WORKERS INDUSTRIAL UNION, LOCAL 153, AFFILIATED WITH C. I. O. In the Matter of ARMOUR AND COMPANY and UNITED PACKING HOUSE WORKERS LOCAL INDUSTRIAL UNION No. 153, THROUGH PACKING HOUSE WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH C. I. O. Cases Nos. C-661 and R-1309, respectively SECOND SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES April 9, 1940 On August 15, 1939, the National Labor Relations Board, herein called the Board, issued its Decision, Order, and Direction of Elec- tion 1 in the above-entitled cases. On August 19, 1939, the Board issued an Amendment to Direction of Election 2 providing for the holding of an election within 15 days from the date of the Amendment to Direction of Election, among the employees of Armour and Com- pany, Omaha, Nebraska, herein called the Company, in the appro- priate unit set forth therein. On August 28, 1939, International Association of Machinists, on behalf of Lodge 31, International As- sociation of Machinists, herein called the I. A. M., filed a petition for intervention, alleging that the machinists, machine erectors, and maintenance employees of the Company constituted an appropriate unit, that these employees had been members of the I. A. M. for many years and desired to be represented by it, that they should not be included in the unit set forth in the Amendment to Direction of Election, and that the I. A. M. had not previously intervened in the proceedings because it had been represented to the I. A. M. by the United that the latter organization would not seek to include the above employees in the bargaining unit. Ou August 29, 1939, the Board notified the Acting Regional Director for the Seventeenth Region that the Board would not pass upon the petition of the I. A. M. until further proceedings were had, that the `employees in the unit claimed by the I. A. M. should-be given the opportunity to vote for 114 N. L. R. B. 682. 214 N. L. R B. 703 22 N. L. R. B., No. 55. 818 ARMOUR AND COMPANY 819 the I. A. M. if they so desired, and that the ballots cast by such em- ployees should be segregated and not counted until after a determina- tion by the Board of the issues raised in the I. A. M.'s petition: On August 30, 1939, prior to the election, the I. A. M. informed the Act- ing Regional Director that it waived all claims to represent any ma- chinists, machine erectors, and maintenance employees other than those classified as machinists. Pursuant to the Direction of Elec- tion, as amended, and the supplemental instructions to the Acting Regional Director, an election by secret ballot was conducted on August 30, 1939, under the direction and supervision of the Acting Regional Director. On October 3, 1939, the Board issued a Supplemental Decision and Certification of Representatives 3 in which it certified Local Union No. 8, United Packinghouse Workers of America, of the Pack- inghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, herein called the United, as the exclusive bargaining representative of the production and maintenance em- ployees.4 After reciting the above facts, the Board stated in the Supplemental Decision : We are unable at this time to decide the issues raised by the petition of the I. A. M. for intervention but shall direct that an additional hearing be held at which the parties may adduce evidence with regard to whether the machinists should be estab- lished as a separate unit or included in the larger unit. We do not think, however, that the Board should withhold the benefits of collective bargaining from the other employees pending a determination of this issue. We shall, therefore, issue a certi- fication applicable to the employees other than the machinists. When the Board has made a final determination as to the ma- chinists, it will, if it finds that such employees either constitute a separate appropriate unit or should be included in the one unit with the other employees, issue another certification embody- ing that finding. On October 3, 1939, the Board issued an order reopening the record, directing that a further hearing be held, and remanding the proceedings to the Regional Director. On October 17, 1939, the United filed Exceptions to the Supplemental Decision and Certifica- 815 N L R B 827. 4 The Board certified the United as the exclusive bargaining representative of the hourly paid and piece-work production and maintenance employees , excluding foremen , foreladies. and assistant foremen , gang leaders , all other employees in a supervisory capacity, clerical and office workers, scalers , checkers , yardmasters , students, policemen and watchmen, fire- men, restaurant employees , car-line employees , workers in the employees ' and wholesale markets, truck drivers , general-office garage employees, employees in the country trucking. and machinists 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of Representatives, objecting to the Board's reopening of the record for a further hearing regarding the issues raised in the I. A. M.'s petition for intervention. On October 24, 1939, the Board over- ruled the United's Exceptions to the Supplemental Decision and Cer- tification of Representatives. On October 10, 1939, the Regional Director issued a notice for further hearing, copies of which were duly served upon the Company, the United, the I. A. M., and Armour's Employees Protective Asso- ciation.-' Pursuant to the notice, a hearing was held on November 20, 1939, at Omaha, Nebraska, before Madison Hill, the Trial Exam- iner duly designated by the Board. The Company, the Board, and the United were represented by counsel, the I. A. M., by its grand lodge representatives; all participated in the proceeding. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the hearing, the United moved to dismiss the proceedings on the grounds that the petition for intervention was insufficient, that although the I. A. M. had been given oral notice of the prior proceedings 6 and had been requested to intervene it had failed to do so, and that the I. A. M. was claiming an inappro- priate bargaining unit. The grand lodge representative of the I. A. M. stated at the hearing that he had not intervened in the previous proceedings because he had been informed by an organizer of the United that the United would not seek to represent the employees claimed by the I. A. M. The United organizer was not called to deny this assertion. Upon the record, we are of the opinion that the petition of the I. A. M. for intervention is sufficient, and that the failure of the I. A. M. representative to intervene was not such as to preclude it from thus participating in the instant proceedings. The motion to dismiss is hereby denied. Upon the entire record in the case, the Board makes the following : SUPPLEMENTAL FINDINGS OF FACT I. THE ORGANIZATIONS INVOLVED Local Union No. 8, United Packinghouse Workers of America, of the Packinghouse Workers Organizing Committee, is a labor organi- zation affiliated with the Congress of Industrial Organizations, ad- mitting to its membership hourly paid and piece-work production and maintenance employees of the Company. 5A labor organization which the Board previously had ordered disestablished in its Decision and Order. GA hearing was held from March 2 to 8, 1939, with reference to the United's petition for investigation and certification. ARMOUR AND COMPANY 821 Lodge 31, International Association of Machinists, is a labor or- ganization affiliated with the American Federation of Labor. It admits to its membership machinists and maintenance employees of the Company. II. THE APPROPRIATE UNIT In its original petition, the I. A. M. claimed to represent the ma- chinists, machine erectors, and maintenance employees. In the peti- tion as amended the I. A. M. limited its claim to the six machinists then on the pay roll of the Company. The United disputes the appropriateness of the unit claimed by the I. A. M. The first question presented in this connection is whether the unit claimed by the I. A. M. is inappropriate because of its exclusion of the millwrights employed by the Company. The machinists operate machines in the machine shop, make parts, and repair machinery for all the departments of the Company. Several machinists spend most of their time in the machine shop, whereas others spend more than half their time in work throughout the plant. The millwrights work in the plant assembling and tearing down machinery. The ma- chinists are more highly skilled and experienced than the millwrights and are able to perform certain functions for which the millwrights do not have the necessary knowledge and qualifications. The basic wage rates of the machinists are 881/2 cents to 95 cents an hour; those of the millwrights are 831/2 cents to 90 cents an hour. Two mill- wrights, who are specialists, receive 90 cents an hour, which is a higher wage than that received by several of the machinists. Al- though the millwrights are eligible to membership in the I. A. M., only one employee listed on the Company's pay roll as a millwright is a member of the I. A. M. The personnel manager of the Company testified that the latter employee is a machinist but was recently employed as a millwright because no vacancies as a machinist then existed. Further, the personnel manager testified that the machinists and the millwrights were considered as two separate and distinct groups of employees. Under the circumstances, we are of the opin- ion that the machinists properly may constitute a bargaining unit without the inclusion of the millwrights. The machinists never participated in the Employee Representation Plan, which existed in the plant from 1921 to April 1937. The I. A. M. has had members in the plant since 1918, but has never bargained collectively with the Company on behalf of its members. Although the United has claimed to represent all the employees of the Company, it does not appear that it has ever bargained on behalf of the machinists or that any of the machinists are members of the 283033-41-vol. 22-53 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United. As in previous cases presenting similar circumstances,' we find that the desires of the employees should be the determin- ing factor as to whether the machinists should constitute a separate unit, or should be included in the plant-wide unit. On March 1, 1940, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and served upon the parties a Supplemental Election Report.8 No objections to the Sup- plemental Election Report have been filed by any party. As to the results of the secret ballot, the Regional Director re- ported as follows : Total number of machinists ballots counted--------------------- 6 Total number of ballots for I. A. M -------------------------- 6 Total number of ballots for United____________________________ 0 Total number of ballots for neither____________________________ 0 Total number of challenged ballots__________________________ 0 Total number of blank ballots________________________________ 0 Total number of void ballots__________________________________ 0 Total number of ballots cast__________________________________ 6 We find that the machinists of the Company constitute a unit ap- propriate for the purposes of collective bargaining and that such a unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and other- wise effectuate the policies of the Act. We further find that the I. A. M. has been designated and selected by a majority of the machinists as their representative for the pur- poses of collective bargaining. It is therefore the exclusive bargain- ing representative of all the machinists for the purposes of collective bargaining, and we shall so certify. On the basis of the above supplemental findings of fact and upon the entire record in the case, the Board makes the following : SUPPLEMENTAL CONCLUSIONS OF LAW 1. The machinists of Armour and Company, Omaha, Nebraska, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the National Labor Relations Act. 2. Lodge 31, International Association of Machinists, is the ex- clusive representative of all the machinists for the purposes of col- 7 See Matter of Armour t Company and International Avsociat,on of Machinists, Local 92, 5 N L. R. B. 535; Matter of Armour c6 Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, 9 N. L R B 1295. s On February 21, 1940, the Regional Director was instructed by the Board to count the ballots cast by the machinists in the election of August 30, 1939, in the 'presence ' of' repre- sentatives of the various parties, and to issue a Supplemental Election Report. ARMOUR AND COMPANY 823 lectiveu_Lbargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Sections 8 and 9, of Na- tional Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY CERTIFIED that Lodge 31, International Association of Machinists, has been designated and selected by a majority of the machinists of Armour and Company, Omaha, Nebraska, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, Lodge 31, International Asso- ciation of Machinists, is the exclusive representative of all the, machinists for the purposes of collective bargaining in respect to^ rates of pay, wages, hours of employment, and other conditions of employment. MR. EDWIN S. SMITH, dissenting : I disagree with the finding of the majority of the Board that the machinists constitute an appropriate unit. There is no history of collective bargaining by the I. A. M. despite its claim of member- ship among the machinists over a long period of time. My dissent is based on considerations which I have urged in the Matter' of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248, 4 N. L. R. B. 159, and in subsequent cases.' 9 See, inter alia, cases cited in footnote 7, supra.