Armour and Co. of Delaware

In the Matter of ARMOUR AND COMPANY OF DELAWARE and CHAUF- FEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS LOCAL 442, MADISON WISCONSIN (AFL) Case No. R-3041.-Decided October 21, 1941 Jurisdiction : dairy products manufacturing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition until certified by the Board ; seasonal employees who were in the employ of the Company during past "flush season," injured employee, and employee temporarily assigned to other work held eligible to vote; pay roll preceding strike still in progress to determine eligibility ; election necessary. Unit Appropriate for Collective Bargaining : all production employees and truck drivers of the Company at its Stoughton, Wisconsin, condensery, excluding the manager, office help, cashier, supervisory employees, fieldmen, and the employees at Milton Junction. ° Mr. Paul E. Blanchard and Mr. Marcus A. Whiting, of Chicago, Ill., for the Company. Mr. Joseph Kohl, of Madison, Wis., for the Union. Miss Melvern R. Krelow, of counsel to the Board. DECISION 4ND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 11, 1941, Chauffeurs, Teamsters, Warehousemen & Helpers Local, 442, Madison, Wisconsin (AFL), herein called the Union, filed with the Regional Director for the -Twelfth' Region (Milwaukee, Wisconsin) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Armour and Company of Delaware,' Stoughton, Wisconsin, herein called the Company, and requesting 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 September 19, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section ' Incorrectly designated in the petition as Armour and Company. 36 N. L. R. B., No. 54. 306 ARMOUR AND COMPANY OF DELAWARE 307 3, of National Labor Relations 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 September 22, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union.' Pursuant to notice, a hearing was held on September 24, 1941, at Stoughton, Wisconsin, before Frederick P. Mett, the Trial Examiner duly designated by the Chief Trial Examiner. The Com- pany was represented by counsel and the Union by its representative; both participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Armour and Company of Delaware is a Delaware corporation en- gaged at its Stoughton, Wisconsin, condensery, here involved, in the production of condensed and evaporated milk, 99 per cent of which is shipped to points outside the State of Wisconsin. The principal raw material used by the Company, consisting of raw milk, is obtained in the State of Wisconsin. Coal, cans, and boxes used by the Com- pany at its Stoughton condensery are' obtained from sources outside the State of Wisconsin. The Company admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Chauffeurs, Teamsters, Warehousemen & Helpers Local 442, Madi- son, Wisconsin, (AFL) is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company at its Stoughton condensery.' HI. THE QUESTION CONCERNING REPRESENTATION On or about August 18, 1941, the Union requested recognition as exclusive bargaining agent' for all employees of the Company at the 2 On September 22, 1941, the Regional Director informally notified United Cannery, Agri- cultural Packing and Allied Workers, C. I. 0., that a petition had been filed by the Union concerning the representation of the employees of the Company and that a hearing wag to be held on September 24, 1941. The C. I. O. replied to'the Regional Director that it had no wish to intervene and later confirmed this informal statement by telegram. 308 DECISTONS OF NATIONAL LABOR RELATIONS BOARD Stoughton, Wisconsin, condensery. The Company refused such recog= 'nition until the Union should be certified by the Board. Thereafter, the Union called a strike which began on September 18, 1941. The condensery ceased operations and was still closed at the time of the hearing. A statement of the Regional Director, introduced into evidence, shows that a substantial number of employees in the unit hereinafter found to be appropriate have designated the Union as their represent- ative for the purposes of collective bargaining.3 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 Union and the Company agree that the unit appropriate for the purposes of collective bargaining should include all production employees and truck drivers at its Stoughton, Wisconsin, condensery and exclude the manager, office help, cashier, supervisory employees, and fieldmen. The Union seeks to exclude William Skinner, Henry Auby, Paul Fuss, and Herman Booth from the -unit. The Company takes no position concerning them. William Skinner is a shipping clerk. The Union contends that ship- ping clerks are "responsible to the office," that Skinner should properly be classified as an office employee and therefore not eligible to mem- bership in the Union. Skinner's duties are to load and unload cars, and to check the cars. He substitutes for the "factory foreman" on alternate Sundays. He has no power to recommend the hire or dis- charge of any employee. There is no change in the rate of his pay because of this occasional "supervisory" work. We find that Skinner is a production employee and we will include him in the unit. s The Regional Director reported that the Union submitted 31 application cards dated between August 5 and September 9, 1941, which bear the apparently genuine signatures of 31 persons whose names appear on the Company's pay roll of September 16, 1941. There are approximately 51 employees in the unit hereinafter found to be appropriate. ARMOUR AND COMPANY OF DELAWARE 309 Henry Auby and Paul Fuss are milk testers. The Union contends that in accordance with other contracts it has with condenseries, which contracts are standardized throughout the State, milk testers are not eligible to membership in the Union. The duties of Auby and Fuss are to check butter fats and solids content in the milk, and to look after the processing of the milk in order that the finished product will meet certain Federal standards permitting its shipment in interstate com- merce. They are sometimes called "chemists" in the language of the condensery evaporating industry, because they have taken a course in the testing of milk as to the butter fat and solids content. They wash all their own equipment. We find Auby and Fuss are production employees and we will include them in the unit.4 Herman Booth is a chief mechanic. The Union contends that Booth is a supervisory employee. He works throughout the plant installing equipment. He has one and sometimes two men who work under him, but has no power to hire or discharge these men, although he directs their work. He works as a manual laborer even when his helpers are with him, and is carried on the pay roll as a production worker. We find that Booth is a production employee and we will include him in the unit. The Company has an auxiliary station located at Milton Junction, 25 miles from the Stoughton condensery. It is an additional re3eiv- ing station and no processing work is carried on there. There are three employees who work at this auxiliary station, two classified as laborers and one as manager. The Union contends that its petition did not include these employees and that it does not claim to represent them. The Company takes no position concerning them. No effort has been made by the Union to sign up these employees and they have evinced no desire to join. Under the circumstances we conclude that the employees who work at Milton Junction should be excluded from the unit. We find that all production employees and truck drivers of the Company at its Stoughton,. Wisconsin, condensery, excluding the manager, office help, cashier, supervisory employees, fieldmen, and the employees at Milton Junction, constitute a unit appropriate for the purposes of collective bargaining and that said 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.. 6 See Matter of Armour and Company and United Condensery Workers O f United Can- nery, Agricultural Packing & Allied Workers of America, Local 24 (CIO) 32 N. L. R. B. No. 85, in which the Board held that milk testers and chemists were properly included in the unit of production employees. 310 DECISIONS OF NATIONAL LABOR RELATIONS .BOARD VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the represen- tation of the employees of the Company can best be resolved by an election, by secret ballot. The Union contends that the employees within the unit working for the Company on September 1, 1941, should be eligible to vote. The Company states that this pay-roll list. would omit many peak seasonal employees, but takes no position other than to leave the determination to the Board. The Company's business is seasonal in nature. In addition to 46 regular employees who work throughout the year, the Company employs 18 seasonal employees for work during its "flush" season, which, ordinarily, extends from the 1st of May to the end of July. We shall direct that the regular employees within the appropriate unit who were working during the pay-roll period hereinafter de- scribed shall be eligible to vote. With respect to the seasonal em- ployees, 12 were employed by the Company for the first time during the 1941 season. A majority of them had been laid off prior to Sep- tember 1. The record discloses that the remainder will be laid off within a few weeks. On the Company's pay roll there are also 6 sea- sonal employees who have worked during two or more "flush" sea- sons including the 1941 season. Five 5 of these were still working on September 1, 1941. The sixth, Gerald Frei, had quit prior to Septem- ber 1, to return to school. In accordance with our practice in similar cases, we shall direct that only those seasonal employees within the appropriate unit who were working on September 1, 1941, and who had also been in the employ of the Company during the "flush" season of 1940 shall be eligible to vote.6 The record discloses some question concerning the eligibility of Kenneth La Fleur and Chris Olson. La Fleur worked approximately 10 years for the Company as a sterilizer operator, but was not working on September 1, 1941. He had been seriously injured in-an automobile accident sometime in June 1941, and has been unable to work. No employee has been permanently hired in his place but his work is now divided among other employees qualified to do his work. It is the Company's intention to take him back when he recovers. Under the circumstances we find that La Fleur is eligible to vote. Chris Olson worked for the Company prior to March- 1, 1941, approximately 18 to 20 years as truck driver and laborer. The, 5 Halvor Veium, Clarence Feggested, Owen Ehle, Edwin Christianson, and Ellsworth Eh le. See Matter of Armour and Company and United Condensery Workers of United Can- nery, Agricultural Packing & Allied Workers of America, Local 24 (CIO) 32 N. L. R. B. No. 85. :ARMOUR AND COMPANY OF DELAWARE ' 311. Company on March 1, 1941, installed a new but temporary educa- tional program and selected Olson to conduct it because of his famil- iarity with the community. It is the Company's intention to restore him to his former job in the plant at the end of the temporary program. Under the circumstances we conclude that Olson does not fall within the category of fieldmen, who are excluded from the unit found to be appropriate, and we find that he is, eligible to vote. As heretofore stated, the Union called a' strike on September 18, 1941. The strike is still in progress and the record does not disclose that any new employees have been hired. Under these circumstances, we shall select a pay-roll date immediately preceding the date of the strike for purposes of determining eligibility to vote. We shall, therefore, direct that those eligible to. vote in the election shall be those regular employees within the appropriate unit who were employed by the company at the Stoughton, Wisconsin, con- densery during the pay-roll period immediately preceding the * date of the strike, September 18; 1941, including Kenneth La Fleur and Chris Olson, and those seasonal employees within the appropriate unit who were working on September ' 1, 1941, and who were also in the employ of the Company during the "flush" season of 1940; subject to such limitations and additions as are set forth in' the direction hereinafter. 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 emp' loyees of Armour and Company of Delaware, Stough- ton, Wisconsin, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All production employees and truck drivers of the Company at its Stoughton, Wisconsin, condensery, excluding the manager, of- fice help, cashier, supervisory employees, fieldmen, and the employees at Milton Junction, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National La- bor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Rela- tions 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 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Armour and Company of Delaware, Stoughton, Wisconsin, 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 Elec- tion under the direction and supervision of the Regional Director for the Twelfth Region, acting in this matter as agent for the Na- tional Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations among all regular employees within the 'appropriate unit who were employed by the Company at the Stoughton, Wisconsin, condensery, during the pay-roll period im- mediately preceding the date of the,strike, September 18, 1941, in- cluding Kenneth La Fleur, Chris Olson, and employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States or temporarily laid off, and those seasonal employees within the appro- priate unit who were working on September 1, 1941, and who were also in the employ of the Company during the "flush" season of 1940, but excluding the manager, office help, cashier, supervisory employees, fieldmen, and the employees at Milton Junction, and those who have since quit or been discharged for cause to determine whether or not they desire to be represented for the purposes of collective bargaining by Chauffeurs, Teamsters, Warehousemen & Helpers, Local 442, Madi- son, Wisconsin (AFL). Mr. GERmm D. RErr.LY took no part in the consideration of the above Decision and Direction of Election.