Kingan & Co., Inc.

In the Matter Of KINGAN & CO., INC. (PouLTRY DIVISION ) and PACK- INGHOUSE WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE C.I.O. Case No. R-3317-Decided December 17,1941 Jurisdiction : poultry packing industry. Investigation and Certification of Representatives : existence of question: refusal of Company to accord union recognition ; conflicting claims of rival representatives ; contract automatically renewed by its terms after notice of claim to representation by rival union, no bar to; seasonal employees, who work approximately one-third as much as regular employees, but who perform an indispensable part of the Company's operations, and who have been in- cluded in past collective bargaining, held, eligible to vote ; election necessary. Unit Appropriate for Collective Bargaining : all production and maintenance employees in the poultry division of the Company, excluding supervisory and clerical employees ; agreement as to. Mr. Burrell Wright, of Indianapolis, Ind., for the Company. Mr.,, David Harmon and Mr. -Thomas, Wilson, of Indianapolis, Ind., for the P. W. O. C. Mr. Paul E. Martin, of Indianapolis, Ind., for the Meat Cutters. Mr. William H. Bartley, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 12,1941, the Packinghouse Workers Organizing Com- mittee, affiliated with the Congress of Industrial Organizations, herein called the P. W. O. C., filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging- that a question affecting commerce had arisen concerning the representation of employees of Kingan & Co., Inc. (Poultry Division), Indianapolis, Indiana, 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 October 9, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, 37 N L. R. B., No. 115. 716 KINGAN & CO., INC. 717 Section 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 fo'r ,an appropriate hearing upon due notice. On October 15, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the P. W. O. C., and Amalgamated Meat Cutters & Butcher Workmen of North Amer- ica, Local No. 101, affiliated with the American Federation of Labor, herein called the Meat Cutters, a labor organization claiming to rep- resent employees directly affected by the investigation. Pursuant to notice, a hearing was held on October 28, 1941, at Indianapolis, Indiana, before Arthur R. Donovan, the Trial Examiner,duly des- ignated by the Chief Trial Examiner. The Company, the P. W. O. C., and the Meat Cutters were represented and participated in the hear- ing. Full opportunity to be hard, 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 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 1. THE BUSINESS OF THE COMPANY The Company is a New Jersey corporation which operates, directly and through subsidiaries, a meat-packing plant 'and poultry division at Indianapolis, Indiana, -and 2 other meat-packing- plants 'and ' 11 wholesale meat-distributing houses located at various points through- out the United States. This case is concerned only 'with the poultry division at Indianapolis. The Company admits that it is engaged in interstate commerce within the meaning of the Act., H. THE ORGANIZATIONS INVOLVED Packinghouse Workers Organizing Committee is a labor, organiza- tion, 'affiliated with the Congress of Industrial Organizations, ad- mitting to membership employees of the Company. Amalgamated Meat Cutters & Butcher Workmen of North' America, Local No. 101, is a labor organization affiliated with the American lA=stipulation signed by the Company and the Board's- Regional Attorney introduced in evidence, recites that no substantial change has occurred in the Company 's business since the Board's Decision and Direction of Election in Matter of %ingan & Co , Inc and United Meat Packing Workers Local Industrial Union No. 117, 12 N . L R. B. 1327. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Federation of Labor, admitting' to membership' employees of -the Company. - III. THE QUESTION CONCERNING REPRESENTATION On September 30, 1939, the Company and the Meat Cutters entered into a contract providing for recognition of the Meat Cutters as the exclusive representative of the employees in the poultry division. The contract specified that it was to remain in effect until October 1, 1940, and for 1-year periods thereafter unless either party gave notice of a desire to modify the agreement at least thirty (30) days prior to the expiration date. Since neither party gave the requisite notice, the contract was automatically renewed on October 1, 1940, to remain in effect until October 1, 1941. On August 29, 1941, the P. W. O. C. re- quested that the Company bargain with it as exclusive representative of the employees in the poultry division. The Company failed to reply to this request. The Meat Cutters contends that its contract with the Company was renewed for another year on October 1, 1941, and that it should be a bar to a present determination of representatives by the Board. However, the Company stated at the hearing that in view of the con- flicting claims of the two unions, it was merely operating under the contract with the Meat Cutters "from day to day" until the question concerning representation was determined by the Board. In addi- tion, the Company was notified of the P. W. O. C.'s claim to represent a majority before the contract was renewed. Under the circum- stances, we hold that the contract is not a bar to this proceeding.2 A statement by the Regional Director, introduced in evidence, shows that' the P. W. O. C. represents a substantial number of employees in the unit hereinafter found to be appropriate.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 Com- pany described in Section I above, has, a close, intimate, and sub- stantial 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. 2 See Matter of Utica Knitting Company and Textile Workers Federal Labor Union # 21,500, A. F. o f L., 23 N. L. R. B. 55. a The Regional Director's statement shows that the P. W. O. C. submitted 33 application cards dated in August and September 1941, bearing apparently genuine signatures of per- sons whose names appeared on the Company's pay roll of 'September 6, 1941 . There were 36 names on the pay roll. I -KINGAN & CO., INC.- 719 V. THE APPROPRIATE UNIT The parties agree, and we find, that all production and mainte- nance employees of the Company in the poultry division, excluding supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining. We further find that such unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find .that the question concerning representation which has arisen can best be resolved by an election by secret ballot.4 The Meat Cutters contends that 23 production employees, identified as chicken pickers, are temporary employees and should not be eligible to vote in the election. The Company and the P. W. 0. C. oppose this contention. The chicken pickers perform a necessary and indispensable part of the Company's poultry business. The amount of their work varies with seasonal fluctuations in the poultry business. Most of the pickers worked more than 400 hours during the past 9 months; other employees in the poultry division worked approxi- mately 1400 hours during that period. The chicken pickers were included in the contract between the Meat Cutters and the Company, and the Meat Cutters have bargained for them on grievances and rates of pay' in the past 2 years.' Under all the circumstances, we are of the opinion, and find, that the- chicken pickers "should be permitted to vote in the election. We shall direct that those eligible to vote in the election shall be the employees in the appropriate unit who were employed by the company during the pay-roll, period immediately preceding the date of the Direction of Election-herein, subject to the limitations and additions set forth in the Direction. , 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 Kingan & Co., Inc. (Poultry Division), * The Meat Cutters introduced no evidence of membership among the employees of the ,Company, relying on its contract with the Company. Although the Meat ,Cutters introduced no evidence of membership among the employees of the Company, we shall, in view of its contract with the Company , provide a place for the Meat Cutters on the ballot. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indianapolis, Indiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All' production and maintenance employees in the poultry divi- sion, excluding supervisory and clerical employees , 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 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 DiREOTED that, as part of the investigation authorized by the Board to. ascertain , representatives for the - purposes of collective bargaining with Kingan & Co., Inc. (Poultry Division ), Indianapolis, Indiana, 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 Eleventh 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 production and maintenance employees in the poultry division of the Company •employed during the pay-roll period immediately preceding the date of this Direction of Election, including employes 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, bu't-excluding supervisory- and. clerical•'empldyees; "a"nd'Ten ployees who have since quit or been discharged for cause, to determine whether they desire to be represented by Packinghouse Workers Organizing Committee, affiliated with the C. I. 0., or by Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 101, afili- ated ' with the A. F. of L ., for the purposes of collective bargaining, or by neither.