Armour and Co.

National Labor Relations Board - Board Decisions

May 29, 1946

68 N.L.R.B. 425 (N.L.R.B. 1946)

In the Matter of ARMOUR AND COMPANY and INTERNATIONAL UNION
OF OPERATING ENGINEERS, LOCAL No. 835, A. F. L.
Case No. 4-R-1911.-Decided May 29, 1946
Mr. Edward M. Leaverton, of Philadelphia, Pa., for the Operating
Engineers.
Mr. Hyman H. Ostrin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Union of Operating En-
gineers, Local No. 835, A. F. L., herein called the Operating Engineers,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Armour and Company, Philadelphia, Penn-
sylvania, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before Helen
F. Humphrey, Trial Examiner. The hearing was held at Philadelphia,
Pennsylvania, on April 12, 1946. The Operating Engineers alone ap-
peared and participated.' All parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. All
parties were afforded opportunity to file briefs with the Board.
' The Company and International Brotherhood of Firemen & Oilers, Powerhouse Operators,
Ice Plant Employees and Maintenance Men, Local No. 473, A. F. L., hereinafter called the
Firemen and Oilers, were served with notice of hearing but did not appear or participate.
After the Company and the Firemen and Oilers had failed to make appearances , the Trial
Examiner , before proceeding , telephoned the Company' s offices seeking an explanation for the
failure to appear. She was told that the attorney who had been handling the matter was out
of town and that no appearance would be made . The Company made no request for an
adjournment . The Trial Examiner also called on a representative of the Firemen and Oilers
who informed her that the present proceeding involved a jurisdictional dispute between two
affiliates of the A. F. L. and that his union would not appear . The Trial Examiner then
proceeded with the hearing.
68 N. L. R. B., No. 55.
425
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Armour and Company, an Illinois corporation, is engaged in slaughter-
ing, packing, and distributing meats and meat products at various plants
throughout the United States. The instant proceeding involves only
the packing house at Philadelphia, Pennsylvania. During the year 1945,
the Company used raw materials at its Philadelphia plant valued in ex-
cess of $1,000,000, 99 percent of which was received from points outside
the Commonwealth of Pennsylvania. During the same period, the Com-
pany produced finished products valued in excess of $1,000,000, 35 per-
cent of which was shipped to points outside the Commonwealth.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local No. 835, and In-
ternational Brotherhood of Firemen & Oilers, Powerhouse Operators,
Ice Plant Employees and Maintenance Men, Local No. 473, both affili-
ated with the American Federation of Labor, are labor organizations
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has declined to recognize the Operating Engineers as
the collective bargaining representative of the employees involved in
this proceeding on the ground that it has been extending such recognition
to the Firemen and Oilers for a number of years. It appears that for
5 years the Company and the Firemen and Oilers have been parties to
an oral collective bargaining contract covering the engineers. How-
ever, an outstanding oral contract is not a bar to a present determination
of representatives.2
As previously stated, the present proceeding involves a jurisdictional
dispute between two unions affiliated with the American Federation of,
Labor. In the past, we have, as a matter of policy, refused to permit
rival unions affiliated with the same parent organization to resort to
the administrative processes of the Act for the settlement of represen-
tation disputes where adequate and appropriate machinery was available
2 See Matter of Republic Steel Corporation, 63 N L R. B. 451, Matter of E+co^, Inc,
46 N. L. R. B. 1035.
ARMOUR AND COMPANY 427
to them, under the procedure of the parent organization. The record
discloses, however, that for several years, the parent organization has
been unsuccessful in resolving the jurisdictional dispute between the
unions involved herein. It is, therefore, apparent that effective solution
of the dispute cannot be had without resort to the administrative proc-
esses of the Act .3
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Operating Engineers represents a substantial
number of employees in the unit hereinafter found appropriate.4
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Operating Engineers seeks a unit consisting of all engineers,
including the chief engineer, employed in the powerhouse of the Com-
pany's Philadelphia packing plant. This is the same unit presently rep-
resented by the Firemen and Oilers.
The engineers, who are licensed by the City of Philadelphia, con-
stitute a well recognized craft group who, the Board has frequently found,
may constitute an appropriate unit.5 Some question exists as to the
position of the chief engineer who performs the same manual duties
as the other engineers and, in addition, directs the work of the other
engineers and does a small amount of paper work. However, it does
not appear that he has the power to change or effectively to recommend
a change in the status of his subordinates. Accordingly, we find that
he is not a supervisor, within the Board's customary definition. We
shall, therefore, include him in the unit.
We find that all engineers, including the chief engineer, employed
in the powerhouse of the Company's Philadelphia packing plant, but
excluding all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
8 See Matter of The Champion Hardware Company, 62 N. L. R. B 434; see also Matter of
Lexington Water Company, 58 N L R B. 536; and Matter of Keystone Steel & Wire Com-
pany, 65 N. L. R B. 274, where we assumed jurisdiction in representaton proceedings involving
the same unions.
4 The Field Examiner reported that Operating Engineers submitted six membership cards,
and that five of these cards bore the names of employees appearing on the Company's pay roll
of March 14, 1946. There are six employees in the appropriate unit.
6 See Matter of Keystone Steel & Wire Company, supra, Matter of Kennecott Copper Corpora-
tion , 5t N. L. R. B. 1140.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein, sub-
ject to the limitations and additions set forth in,the Directon.6
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,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations - Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Armour and Com-
pany, Philadelphia, Pennsylvania, 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, under the direction and supervision of the
Regional Director for the Fourth Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III, Sec-
tions 10 and 11, of said Rules and Regulations, among employees in
the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this Direc-
tion, including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and including
employees in the armed forces of the United States who present them-
selves in person at the polls, but excluding those employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, to determine whether or not
they desire to be represented by International Union of Operatng En-
gineers, Local No. 835, A. F. L., for the purposes of collective bar-
gaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
We take notice that the Firemen and Oilers has represented the employees involved for
a number of years under an oral agreement . For this reason , we shall accord it a place upon
the ballot if , within ten ( 10) days from the date of this Decision , it notifies the Regional
Director of its desire to be placed thereon.