Cudahy Packing Co.

In the Matter Of CUDAHY PACKING COMPANY and PACKING HOUSE WORKERS ORGANIZING COMMITTEE, C. I. O. Case No. B-1718.-Decided April 17, 1940 Meat Packing Industry-Investigation of Rep7esentatives: controversy con- cerning representation of employees : rival unions ; second closed-shop contract entered into between rival union victorious in a consent election held the year before and the Company, where petition filed prior to making of second con- tract, petitioner notified Company of majority claim, and at hearing made show- ing sufficient to rebut showing of majority by contracting union at time of execution of second contract, no bar to- Labor Organization: on an issue raised, petitioner is found to be a labor organization on the basis of the testimony- Unit Appropriate for Collective Bargaining: all employees of the Company on the plant pay roll at its Los Angeles plant including receiving clerks, depart- mental clerks, route clerks, shipping clerks, scalers, and checkers, but excluding supervisory employees, subforemen, department superintendents, timekeepers, time-study men, deputized officers, all other watchmen wherever located, drivers, the hide take-up gang, Kern County employees, and all employees on the office pay roll-Election Ordered Mr. Alba M. Martin and Mr. M. A. Prowell, for the Board. Howlett and Maclaren, by Mr. Elmer H. Howlett and Mr. Towson Maclaren, of Los Angeles, Calif., for the Company. Gallagher, Wirin, and Johnson, by Mr. Grover Johnson, of Los Angeles, Calif., and Mr. A. J. Shippey, of Los Angeles, Calif., for the P. W. O. C. Mr. Joseph Padway and Mr. Herbert Thatcher, of Washington, D. C.; Mr. T. J. Lloyd, of Salt Lake City, Utah; Mr. J. F. Voorhees and Mr. John Carroll, of Los Angeles, Calif., for the Amalgamated. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 17, 1939, Packing House Workers Organizing Com- mittee, C. I. 0., herein called the P. W. O. C., filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition alleging that a question affecting commerce had arisen con- cerning representation of employees of Cudahy Packing Company, 22 N. L. R. B., No. 83. 1019 1 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Los Angeles, California, herein called the Company, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On December 22, 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 on due notice. On January 10, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the P. W. O. C., and upon Amalgamated Meat Cutters and Butcher Work- men of North America, A. F. of L., Local No. 207, herein called the Amalgamated, a labor organization claiming to represent employees directly affected by the investigation.' On motion of the Company for a continuance the Regional Director issued an amended notice of hearing on January 16, 1940, copies of which were duly served on the same parties. Pursuant to the notice, a hearing was held on January 25, 26, 29, 30, and 31, 1940, and February 3, 5, 6, 7, 8, 9, and 12, 1940, at Los Angeles, California, before Earl S. Bellman, the Trial Examiner duly designated by the Board. The Board and the Com- pany were represented by counsel, the P. W. O. C. and the Amal- gamated by counsel and union officials, and 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. At the commencement of the hearing the Company moved to dis- miss the proceedings on the ground that a contract entered into on November 2, 1939, between the Amalgamated and the Company was a bar to the present proceeding. The Trial Examiner did not rule on this motion. For the reasons set forth in Section III below, the motion is hereby denied. The P. W. O. C. moved that the Board take judicial notice that the P. W. O. C. is a labor organization. Since the record establishes this fact, it is unnecessary to rule on this motion. During the course of the hearing the Trial Examiner made several rulings on other motions, objections to the admission of evi- dence, and the form of questions. The Board has reviewed the rul- ings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On March 14, 1940, pursuant to notice duly served on all parties, a hearing was held before the Board at Washington, D. C., for the ' Service of notice of hearing was also made upon Central Labor Council and Los Angeles Industrial Union Council . Neither of the organizations appeared at the hearing. CUDAHY PACKING COMPANY 1021 purposes of oral argument. The Amalgamated appeared and pre- sented its argument. The Company and the P. W. O. C. did not appear. The Amalgamated and the P. W. O. C. filed briefs 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 Cudahy Packing Company was incorporated in Maine in 1915. It is chiefly engaged in the purchase and slaughter of livestock and the processing and marketing of the products therefrom. Through its own operations and the operations of a number of subsidiaries whose stock it owns in whole or in* part, it is engaged in the business of refining vegetable oils, manufacturing soap and other cleansing ma- terials, pulling, scouring, combing wool, and mining, producing, and distributing salt. It owns, maintains, and operates approximately 1500 refrigerator and 44 tank cars for the transportation of its products. The respondent maintains slaughtering and meat-packing plants in Omaha, Nebraska; Kansas City, Kansas; Sioux City, Iowa; Los Angeles, California; Wichita, Kansas; North Salt Lake, Utah; Jersey City, New Jersey; Newport, Minnesota; San Diego, California; Den- ver, Colorado, and Albany, Georgia. It owns and operates soap and Old Dutch Cleanser factories at East Chicago, Indiana, and Toronto, Ontario, Canada; maintains shops for the construction and repair of refrigerator cars at East Chicago, Illinois; maintains a shop for refining vegetable oils near Memphis, Tennessee; operates a wool scouring, combing, and storage plant at Providence, Rhode Island; and owns and operates a salt mine and refinery at Lyons, Kansas. The respondent maintains 80 branch produce collecting and process- ing plants scattered throughout the United States. The Company's meat-packing plant at Los Angeles, California, is the only plant involved in this proceeding. For this plant more than 146 million pounds of livestock were purchased in 1939, about 40 per cent of which came from States other than California. From this livestock over 126 million pounds of meat products and other prod- ucts were processed or manufactured, about 10 per cent of which was shipped to destinations outside California by rail, steamship, or other common carrier. About 8 million pounds of Old Dutch Cleanser were manufactured at this plant during 1939, about 20 per cent of which was shipped to other States, Hawaiian Islands, Philippine Islands, and the Orient. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Packing House Workers Organizing Committee is a national labor organization affiliated with the Congress of Industrial Organizations. It organizes packing-house workers and charters local unions whose membership is comprised of such workers. It acts as bargaining agent for packing-house employees and such local unions. United Packing House Workers of America, Local No. 107, is a labor organization chartered by Packing House Workers Organizing Committee, and through it affiliated with the Congress of Industrial Organizations. It admits to membership all employees of the Com- pany's plant at Los Angeles, California, excluding persons with the power to hire and discharge, recommend hiring and discharging, and those coming under the jurisdiction of other C. I. O. unions. Amalgamated Meat Cutters and Butcher Workmen of North America, A. F. of L., Local No. 207, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the Company's plant at Los Angeles, California, ex- cluding clerical and supervisory employees, watchmen, and deputized watchmen. III. THE QUESTION CONCERNING REPRESENTATION On October 19, 1938, a consent election was conducted under the auspices of the Board's Regional Office among the Company's em- ployees to determine whether they desired to be represented by the Amalgamated or by a then existing local of the P. W. O. C. for the purposes of collective bargaining, or by neither. The Amalgamated received a majority of the votes cast.2 On November 18, 1938, the Company and the Amalgamated ex- changed certain documents which are alleged to have constituted a contract.' We assume, without deciding, that these documents con- stituted a contract and shall refer to them as such hereinafter. By its terms this contract was to expire on October 24, 1939. It also con- tains a closed-shop provision. The Company consistently refused to enforce this provision, although often urged to do so by officers of the Amalgamated, allegedly because it doubted the validity of such a provision under California law.4 While the Company's position that it would not enforce the closed-shop provision was clear to the officers of the Amalgamated, the generality of employees believed that mem- bership in the Amalgamated was a condition of employment. In 2 Out of 685 ballots counted in the election the Amalgamated received 367 votes and the P. W. O. C local received 291. S These documents are similar in form and general content to documents exchanged on November 2, 1939, which are discussed below 4 There was testimony that cases are pending in California courts testing the validity of a closed-shop contract under Section 821 and 823 of the Labor Code of California CUDAHY PACKING COMPANY 1023 January 1939 the P. W. O. C. revoked the charter of its local, under the belief that the Company was enforcing the closed-shop provision of the contract between the Company and the Amalgamated. In August 1939 the P. W. O. C. began a new drive to organize the employees of the Company. In October the Amalgamated started negotiations with the Company looking toward a new contract, in view of the approaching expiration of the existing contract on October 24, 1939. On October 16, 1939, the district director of the P. W. O. C., accompanied by a national officer of that union, had an interview with the Company's plant manager and superintendent. At that meeting the P. W. O. C. representatives asked whether the P. W. O. C. would receive any consideration from the Company before any new contract with the Amalgamated was signed. They stated that the P. W. O. C., did not then claim to represent a majority of the employees but that it had a substantial membership and expected to have a majority in the near future and hoped to get in touch with the Company again before any new contract was signed. The plant manager replied that "formal proceedings" were not necessary to secure an audience with representatives of the Company and that the Company was "merely trying to run the plant in best way we knew possible and likewise keep within the law of the land so far as possible." The next day, October 17, the P. W. O. C. filed with the Regional Director its petition in the present proceeding. On October 20, 1939, there was a conference between a Field Exam- iner of the Board and two national representatives of the Amalgam- ated, at which the Field Examiner notified them that the P. W. O. C. had filed a petition on October 17. On the same day, October 20, the Field Examiner wrote T. J. Lloyd, one of the Amalgamated repre- sentatives, that from their conference he understood that the Amal- gamated would not consent "to any type of informal procedure; i. e., Consent election or Cross-check" in order to adjust the matter. On the same day the Field Examiner also had a conference with representa- tives of the Company, informing them of the petition filed by the P. W. O. C. on October 17. On or about October 24, 1939, the final draft of an unsigned memo- randum approved by the members of the Amalgamated was presented to representatives of the Company. The bargaining committee of the Amalgamated was accompanied by counsel and by Lloyd, International vice president. Some of the provisions of the contract were discussed. The Company asked no questions concerning the majority of the Amal- gamated, but a statement was made by one member of the bargaining committee of the Amalgamated, and verified by the other members and Lloyd, that the Amalgamated members composed a majority of the employees concerned. No proof of this statement was offered or requested. No final action was taken at this meeting. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 30, 1939, the director of the P. W. O. C. sent a registered special-delivery letter to the Company, stating that its membership now included a majority of maintenance and production employees at the Company's plant and that these members were concerned over rumors of a reported renewal of the contract between the Amalgamated and the Company. The letter closed with a request for a conference within 5 days. This letter was duly received by the Company. No reply of any kind was received by the P. W. O. C. On November 2, 1939, the Company and the Amalgamated signed papers which they allege constitute a legally binding contract and a bar to this proceeding. The P. W. O. C. contends it is not a legally binding contract. The alleged contract consists of two writings. The first writing, signed by the Amalgamated, is an undated three-page memorandum which was previously discussed with the Company. It sets forth specific provisions appropriate to a bargaining contract, and contains a provision requiring membership in the Amalgamated as a condition of employment. By its terms it is to be in effect until October 24, 1940,5 subject to automatic renewal from year to year un- less terminated by a 30-day written notice by either party. The sec- ond writing dated November 2, 1939, is a letter to the Amalgamated signed by the Company. It acknowledges receipt of a memorandum dated October 24, 1939, and states "it shall be the policy of the Com- pany" to operate under its provisions unless counsel advises otherwise, with specific reference to the closed-shop provision-Section 3 of the memorandum. There was added a stipulation not found in the memo- randum. There is nothing in the minutes of the Amalgamated to indicate that the letter was ever read to the members. On November 20,1939, the director and an official. of the P. W. 0. C. called on the Company to learn whether a contract had been signed with the Amalgamated. They were told that whatever steps the Com- pany had taken had been with the advice of counsel. On December 20, 1939, the P. W. O. C. formally grouped the employees organized by it into a local called Local No. 107, United Packing House Workers of America, which it chartered. Assuming, without deciding, that the documents exchanged between the Company and the Amalgamated on November 2, 1939, constitute a contract, we find that it is not a bar to a determination of repre- sentatives at the present time. This contract, which purports to re- quire membership in the Amalgamated as a condition of employment, was entered into after the P. W. O. C. had filed its petition, after both the Company and the Amalgamated had been informed of the filing of the petition and that the P. W. O. C. claimed to represent -a majority s The expiration date-originally November 2, 1940-was changed to October 24, 1940, because of anticipated pertinent changes in Wage and Hour regulations. For the same reason the contract of November 18, 1938, was drawn to terminate October 24, 1939. CUDAHY PACKING COMPANY 1025 of the Company's employees, and at a time when the P. W. 0. C., as we find below in Section VI, had obtained over 300 authorization cards -purportedly signed by employees of the Company, a number sufficient to rebut, as we find in Section VI below, the Amalgamated's showing of majority representation at the time the contract was executed and any presumption of continuing majority representation arising by virtue of the Amalgamated's victory in the consent election of October 1938.8 We find that a question has arisen. concerning representation of the Company's employees. 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 rela- tion 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 Company and the unions agree that there should be included in the bargaining unit all employees of the Company on the plant pay roll at its Los Angeles plant, excluding supervisory employees, subforemen, deputized officers, all other watchmen wherever located, drivers, and Kern County employees; that whether on plant or office pay roll, a J1 department superintendents, timekeepers, time-study men, and the hide take-up gang, are to be excluded; and that no persons on the office pay roll are to be included in the unit. The only difference between the unions concerns receiving clerks, departmental clerks, route clerks, checkers, scalers, and shipping clerks. The P. W. O. C. contends that they should be excluded from the unit, and the Amalgamated contends that they should be in- cluded. These six classes of employees were eligible to vote in the consent election held in October 1938, to which agreement the Amal- gamated and a local of the P. W. O. C. were parties. Since that election these employees have been included in the unit of employees concerning whom the Company and the Amalgamated have had bar- 6 Matter of Southern Chemical Cotton Company and Textile Workers Organizing Committee, 3 N L R B. 869 . In this case we said : If, as in this case, an employer enters into an agreement with one of to labor organizations at a time when both are claiming the right of exclusive representation, we must hold that the agreement cannot bar our conducting an election , unless we are convinced that at the time of its execution the labor organization with which it was made represented a majority of the employees. 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining relations.? Under these circumstances we see no reason for excluding them from the bargaining unit. We find that all employees of the Company on the plant pay roll at its Los Angeles plant, including receiving clerks, departmental clerks, route clerks, checkers, scalers, and shipping clerks, but exclud- ing supervisory employees, subforemen, department superintendents, timekeepers, time-study men, deputized officers, all other watchmen wherever located, drivers, Kern County employees, the hide take-up gang, and all employees whose names appear on the office pay roll, constitute a unit appropriate for the purposes of collective bargain- ing; and that said unit will insure to employees of the Company the full benefit 'of their right to self-organization and to collective bar- gaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The secretary-treasurer of the Amalgamated testified that on No, vember 1, 1939, it represented 587 employees in the appropriate unit, of whom 530 were Amalgamated members in good standing. The P. W. O. C. introduced in evidence 369 membership cards." Of these cards, 18 were signed after November 1, 1939, and 15 were signed by persons not employed during the pay-roll period of October 31, 1939. There thus remain 336 cards signed by employees in the appropriate unit on or before November 2, 1939.9 About 300 signers of P. W. O. C. membership cards are also claimed as members by the Amal- gamated. Disregarding the approximately 300 employees who are claimed as members by both the P. W. O. C. and the Amalgamated, there remain of the 587 employees whom the Amalgamated claims to represent about 287 who are not also claimed as members by the P. W. 0. C. According to the testimony of the plant superintendent there were about 675 employees in the appropriate unit on November 1, 1939. The plant pay roll of October 21, 1939, however, shows a total of 857 names. We are unable to determine how many of these were in the appropriate unit, since we are unable to decipher many of the marks designating the work classifications of the employees on this list. We can determine that at least 34 employees were not in the unit, leaving 823. It is entirely possible that a substantial number of 4 These employees were covered by the documents exchanged between the Company and the Amalgamated in November of 1938 and 1939, which we have assumed , without decid- ing, constituted contracts s Twenty-seven additional cards were marked for identification , but they were not intro- duced in evidence because the P. W. 0 C. had agreed with the signers not to divulge their names. ° Some undated caids were, according to his testimony, dated by the P W 0 C duector the day they came into his hands and, therefore , do not necessarily bear the date when they were signed . There is testimony to the effect that a few cards were signed in 1938 before the consent election. CUDAHY PACKING COMPANY 1027 these 823 employees were not in the unit. In any event, whether there were 675 or 823 employees in the appropriate unit on Novem- ber 1, 1939, it is plain that the Amalgamated has not shown that it represented a majority of the employees on November 1, 1939, in view of the overlapping membership claim and showing of the P. W. O. C. On the other hand, the P. W. O. C. has made a sufficient show- ing to rebut both the showing of majority representation by the Amalgamated and any presumption, arising by virtue of its victory in the consent election of October 1938, of continuing majority repre- sentation by the Amalgamated on November 2, 1939. We find that an election by secret ballot is necessary to resolve the question concerning representation among the employees of the Com- pany at its Los Angeles, California, plant and we shall direct the hold- ing of such an election. We will direct that those eligible to vote in the election shall be those employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during that pay-roll period because they were ill or on vacation or were then or have since been temporarily laid off, and excluding those who have since quit or been discharged for cause. The P. W. O. C. requested that the name of its local union should appear on the ballot. This request is hereby granted. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Cudahy Packing Company, Los Angeles, California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company on the plant pay roll of its Los Angeles, California, plant, including receiving clerks, departmental clerks, route clerks, scalers, checkers, and shipping clerks, but exclud- ing supervisory employees, subforemen, department superintendents, timekeepers, time-study men, deputized officers, all other watchmen wherever located, drivers, Kern County employees, hide take-up gang, and all employees whose names appear on the office pay roll, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) 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 Relations Act, 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Cudahy Packing Company, Los Angeles, California, 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 Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and pursuant to Article III, Section 9, of said Rules and Regulations, among all employees of the Company on the plant pay roll at its Los Angeles plant, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including receiving clerks, departmental clerks, route clerks, scalers, checkers, and shipping clerks, and including employees who did not work during that pay-roll period because they were ill or on vacation or were then or have since been temporarily laid off, but excluding supervisory employees, subforemen, department superin- tendents, timekeepers, time-study men, deputized watchmen, all other watchmen wherever located, drivers, Kern County employees, the hide take-up gang, and all employees whose names appear on the office pay roll, and those who have since quit or been discharged for cause, to determine whether said employees desire to be represented by United Packing House Workers of America, Local No. 107, C. I. 0., or Amal- gamated Meat Cutters and Butcher Workmen of North America, A. F. of L., Local No. 207, for the purposes of collective bargaining, or by, neither.