Armour & Company

National Labor Relations Board - Board DecisionsJul 12, 1939

13 N.L.R.B. 567 (N.L.R.B. 1939)

In the Matter of ARMOUR cQ, COMPANY and UNITED PACKINGHOUSE WORKERS, LOCAL INDUSTRIAL UNION No. 13 OF PACKINGHOUSE WORK- ERS ORGANIZING COMMITTEE, AFFILIATED WITH C. I. O. Case No. R-1345-Decided July 12,19-39 Meat Packing Industry-Investigate on of Representatives: controversy con- cerning representation of employees : company refuses to recognize petitioner ; controversy as to appropriate unit-Unit Appropriate for Collective Bargaining: all hourly paid, piece-work, production, and maintenance employees, excluding: foremen, assistant foremen, gang leaders, clerical and office employees, super- visory employees, employees in the following departments : Carcass loading,. packinghouse loading. express and local freight, country trucking, and fire depart- ment, storeroom wholesale and retail markets, and restaurant employees; police- men, watchmen, 'box pullers, street cleaners, office and plant janitors, matrons, checkers, scalers, cattle drivers, chemists, garage mechanics, garage washers,' the blacksmith, the railroad track repairer and temporary employees with company less than a total of 60 days in preceding year-Representatives: proof of choice : elimination of disagreement between company and sole union in- volved to insure satisfactory negotiations requires an election-Election Ordered Mr. L. N. D. Wells, Jr., for the Board. tlr. Walter C. Kirk, of Chicago, Ill., for the Company. Mr. John J. Brownlee, of Chicago, Ill., for the Union. Mr. William Strong, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 14, 1939, United Packinghouse Workers, Local Indus- trial Union No. 131 of the Packinghouse Workers Organizing Com- mittee, herein called the Union, filed with the Regional Director for the Sixteenth Region (Fort Worth, Texas) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Armour & Company,2 Oklahoma City, Okla- 1 The petition was filed in the name of "United Packinghouse Workers, Local Industrial Union No. 215." The local number of the Union was thereafter changed to 13. 2 Incorrectly designated as "Armour and Company" in the petition and the notice of hearing. The title of the case was amended at the hearing correctly to designate the Company. 13 N. L. R. B., No. 64. 567 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD homa, 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 March 17, 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 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and provided for an appropriate hearing upon due notice. On March 22, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company ,and upon the Union.3 Pursuant to the notice, a hearing was held on April 6, 7, and 8, 1939, at Oklahoma City, Oklahoma, before Samuel H. Jaffee, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel and the Union by a representative; all participated in the hearing. Full oppor- tunity to be heard, 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 - tre' hereby :affirmed. At the close of the hearing, the Trial Examiner reserved his ruling upon a motion by, the Union to amend its petition as to the appropriate unit. The motion, is hereby granted. On April 25, 1939, the Company filed a brief 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 Armour & Company is a Maine corporation, and is a wholly owned subsidiary of Armour and Company, a Delaware corporation, which in turn is a subsidiary of Armour and Company, an Illinois corpora- tion. The Illinois corporation, directly and through its subsidiaries, operates approximately 30 slaughtering and meat processing and packing plants located in 23 States, and has numerous branch houses throughout the United States. During the fiscal year ending October 29, 1938, sales of the Illinois corporation, including its subsidiaries, amounted to $723,537,907. s Upon receipt of the petition , the Regional Director communicated with John Malone, vice president of the Amalgamated Meat Cutters and Butcher Workmen of North America, affiliated with A. F. of L., advising of the filing of the petition . Subsequently , a reply was received from Mr. Malone, stating that the Amalgamated did not desire to intervene in the case. ARMOUR & COMPANY 569 At its Oklahoma City, Oklahoma, plant, which is the only plant involved in this proceeding, the Company is engaged in the pur- chase and slaughter of livestock. and in the processing, packing, and distribution of products therefrom. During the fiscal year ending October 29, 1938, the respondent pur- chased and slaughtered over 360,000 animal's, about 353,000 of which were purchased principally from commission men doing business in the public stockyards at Oklahoma City, and about 7,000 from sellers outside Oklahoma. The records of the stockyards in Oklahoma City indicate that more than 21 per cent of the animals handled through the Oklahoma City yards originated in Stites other than Oklahoma. During the same fiscal year, the Company sold and shipped approx- imately 130,000,000 pounds of finished products of the approximate value of $15,500,000, of which 61 per cent was destined for States other than Oklahoma. Approximately 900 persons are employed at the Oklahoma City plant. II. THE ORGANIZATION INVOLVED United Packinghouse Workers, Local Industrial Union No. 13 of Packinghouse Workers Organizing Committee, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to its membership all hourly paid and piece-work production and main- tenance employees of the Company at its Oklahoma City plant, ex- cluding foremen, assistant foremen, supervisory employees, clerical and office employees, watchmen, firemen, policemen, and teamsters. III. THE QUESTION CONCERNING REPRESENTATION The Union, on numerous occasions during 1939, approached the Company with the request that collective bargaining negotiations be inaugurated. The Company did not comply with such requests. On March 18, 1939, the Union sent a letter to John R. Kissner, superin- tendant of the plant, restating its requests. The Company did not reply to this letter. On March 28, the Company, through Kissner, declined to meet with the grievance committee of the Union. At the hearing, Kissner was asked whether the Company would recognize the Union and bargain with it. Upon advice of counsel, he declined to answer. The Union and the Company differ as to the composition of the appropriate bargaining unit. We find that a question has arisen concerning representation of employees of the Company. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 In its petition, the Union claims that hourly paid and piece-work production and maintenance employees at the Oklahoma City plant, excluding foremen, assistant foremen, and clerical and office em- ployees, constitute a unit appropriate for the purposes of collective bargaining. During the hearing, testimony was adduced as to the duties of various classes of employees and of certain individuals. On the basis of such testimony, the Union supplemented its list of exclusions , and, at the conclusion of the hearing, restated its conten- tions as to the make-up of the appropriate unit, which it finally urged to be as follows : All hourly paid and piece-work production employees, and employees engaged in maintenance of production facilities, excluding foremen, assistant foremen, gang leaders, cler- ical and office workers, and all those in a supervisory capacity, also excluding persons on the pay roll under the following department headings : Carcass loading, packinghouse loading, express and local freight, country trucking, and fire departments; storeroom, whole- sale and retail markets, and restaurant employees; policemen, watchmen, box pullers,4 street cleaners, office and plant janitors, matrons, checkers, cattle drivers, chemists, garage mechanics, garage washers, the blacksmith, the railroad track repairer, and certain specified scalers. The Company agrees to the proposed exclusion of supervisory employees, foremen and assistant ` foremen, general office employees, chemists , policemen, firemen, and drivers in the country trucking unit. We shall therefore exclude them. Gang leaders will be ex- cluded as supervisory employees. The clerical employees, checkers, railroad track repairer, the garage mechanics, garage washers, the blacksmith, cattle drivers, street cleaners, matrons, office and plant janitors, restaurant employees, retail- and wholesale-market employees, watchmen, and box pullers 4 Box pullers are watchmen who record the making of their rounds by operating me- chanical devices known as "boxes" located along the route of their inspection ARMOUR & COMPANY 571 employed by the Company, as well as the persons employed in its packinghouse loading, express and local freight, country trupking, and carcassloading departments, and its storeroom, are not engaged in production or in maintenance work with respect to production facilities. At the request of the Union, we shall exclude them from the unit.5 Persons designated upon the Company's pay roll as scalers are primarily engaged in weighing and recording the weight of the various products. At times some of the scalers temporarily engage in certain other clerical duties. In varying degrees, scalers also per- form manual labor in connection with lifting meat to, and removing it from, the scales. The Union seeks to differentiate among the scalers, requesting the inclusion of those who perform a substantial degree of manual labor in connection with the weighing process. We find, however, that all the scalers should be excluded from the bargaining unit as clerical employees.6 The Union requests the exclusion from the unit of temporary employees. The Company maintains no pay-roll classification for such employees, nor is their number or identity revealed by the record. It appears, however, that there are a number of workers who, when extra work is available, receive 2 or 3 days' employment a week, in accordance with their seniority standing which they re- tain for 60 working days after their last lay-off. We shall exclude from the unit those temporary employees who, in the year preceding the date of this decision , worked for the Company a total of less than 60 days.? Questions arose at the hearing concerning the duties of certain specified individuals. We find that Henry Blundell, Jesse Scruggs, John Martin, and 0. A. Thurman perform supervisory duties. They will be excluded from the unit. Herndon Davis and Herbert Keller, however, although classified as inspectors, perform no super- 5 In proceedings involving other plants of Armour & Company and its subsidiaries, we have excluded from the bargaining unit employees in most of the enumerated classifica- tions. See Matter of Armour & Company and Packing House Workers Organizing Com- m,ittee for United Packing House Workers , Local 347, etc., 8 N. L. R. B . 1100; Matter of Armour & Corn pang and United Packing House Workers Industrial Union No. 767 , affiliated with the C. 1. 0., 9 N. L. R. B. 1239. ° Cf. Matter of Armour & Company and Packing House Workers Organizing Committee for United Packing House Workers, Local 347, 8 N. L. R. B . 1100, wherein the Board held that certain part-time checkers and scalers were primarily production workers, and, therefore , included them within the unit, while at the same time excluding full-time checkers and scalers. 'Temporary employees were excluded from the bargaining unit in Matter of Cudahy Brothers Packing Co ., a corporation and Packing House Workers Industrial Union, 4 N. L. R . B. 1171 ; Matter of Armour & Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 413, 5 N. L. R . B. 975; Matter of Armour & Company and United Packing House Workers, Local Industrial Union No. i93, Through Packing House Workers Organizing Committee , Affiliated with the C. I. 0., 12 N L. R. B. 49 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visory duties, and will be included. Lawrence Keith, Floyd Tunstall, Acy Jones, Jno. Lindsey, Jas. Fields, and John Caradine have more than one work classification upon the Company's pay roll. We find that they are essentially production workers and should be included in the unit. Evelyn Wheeler, however, will be excluded as a clerical employee. We find that all hourly paid and piece-work production and maintenance employees of the Company, including Herndon Davis, Herbert Keller, Lawrence Keith, Floyd Tunstall, Acy Jones, Jno. Lindsey, Jas. Fields, and John Caradine, excluding foremen, assist- ant foremen, gang leaders, clerical and office employees and those in a supervisory capacity and also excluding persons listed under the following department headings : Carcass loading, packinghouse load- ing, express and local freight, country trucking, and fire depart- ment; storeroom, wholesale and retail markets, and restaurant em- ployees ; policemen, watchmen, box pullers, street cleaners, office and plant janitors, matrons , checkers, scalers, cattle drivers, chem- ists, garage mechanics, garage washers, the blacksmith, the railroad track repairer, and temporary employees who have worked for the Company for less than a total of 60 days in the year preceding the date of this decisioai , constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the ean- ployees of the Company the full benefit of their right to self-organi- zation and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing, the Union offered evidence in support of its claim that the majority of the employees had designated it as their col- lective bargaining agent. It requests certification upon the proof offered. The Company, however, contests the Union's claims. It contends that an election is necessary to determine the wishes of the employees. Although in the past we have certified representatives without an election upon a showing of the sort made by this record, we are persuaded by our experience that, under the circumstances of this case, any negotiations entered into pursuant to a determination of representatives by the Board will be more satisfactory if all dis- agreement between the parties regarding the wishes of the employees has been, as far as possible, eliminated. We shall therefore direct that an election by secret ballot be held." 8 See Matter of The Cudahy Packing Company and United Packinghouse Worker, of America, Local No 21, of the Packinghouse Workers Organizing Committee , 13 N. L R B. 526. ARMOUR & COMPANY 573 The Union requests that in the event the Board should order an election, the April 1, 1939, pay roll, expanded to include the persons theretofore laid off, be used to govern eligibility. The Company agrees to the use of the April 1, 1939, pay roll provided the election be held not later than 1 month after the date of the hearing. We shall direct that employees of the Company within the appro- priate unit, whose names appear on the April 1, 1939, pay roll, in- cluding employees who on that date had been laid off less than 60 Working days," employees who did not Work during the pay-roll period because they were ill or on vacation, and also any who have been employed by the Company between April 1, 1939, and the date of this Decision, excluding any such employees who have since quit or been discharged for cause, shall be eligible to vote in the election. Upon the basis of the foregoing findings of fact and 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 Armour & Company, Oklahoma City, Ok- lahoma, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All hourly paid and piece-work production and maintenance employees of Armour & Company, Oklahoma City, Oklahoma, ex- cluding foremen, assistant foremen, gang leaders, clerical and office Workers and those in a supervisory capacity, and also excluding all persons listed under the following department headings: Carcass loading, packinghouse loading, express and local freight, country trucking, and fire department; storeroom, policemen, watchmen, box pullers, street cleaners, office and plant janitors, matrons, checkers, scalers, cattle drivers, chemists, garage mechanics, garage washers, retail and wholesale markets, restaurant employees, the blacksmith, the railroad track repairer, and temporary employees who have worked for the Company for a total of less than 60 clays in the year preceding the date of this Decision, constitute a unit appro- priate 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 Re- Under the Company s policy , laid-off employees ietaui their seniority for 60 working days. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bar- gaining, an election by secret ballot shall be conducted within fifteen (15) days from this Direction of Election, under the direc- tion and supervision of the Regional Director for the Sixteenth Region, acting in the matter as agent for the National Labor Rela- tions Board, and'subject to Article III, Section 9, of said Rules and Regulations, among all the hourly paid and piece-work production and maintenance employees of Armour & Company, Oklahoma City, Oklahoma, who were employed by the Company during the pay-roll period ending April 1, 1939, including Herndon Davis, Herbert Keller, Lawrence Keith, Floyd Tunstall, Acy Jones, Jno. Lindsey, Jas. Fields, and John Caradine, and including employees who on that date had been laid off less than 60 working days, employees who did not work during such pay-roll period because they were ill or on vacation, and also any employees who have been employed by the Company between April 1, 1939, and the date of this Direction of Election, excluding foremen, assistant foremen, gang leaders, clerical and office workers and those in a supervisory capacity, and also excluding all persons listed under the following department headings : Carcass loading, packinghouse loading, express and local freight, country trucking, and fire department; storeroom, retail'and whole- sale markets, and restaurant employees; policemen, watchmen, box pullers, street cleaners, office and plant janitors, matrons, checkers, scalers, cattle drivers, chemists, garage mechanics, garage washers, the blacksmith, the railroad track repairer, and temporary employees who have worked for the Company for a total of less than 60 days in the year preceding the date of this Decision, and all employees who have since quit or have been discharged for cause, to determine whether or not they desire to be represented by United Packinghouse Workers Local Industrial Union No. 13 of Packinghouse Workers. Organizing Committee, affiliated with the C. I. O. MR. EDWIN S. SMITH, dissenting : For reasons similar to those given by me in Matter of Cudahy Packing Company (13 N. L. R. B. 526), I believe here also that the United should be certified on the record without an election, on the basis of the evidence of majority afforded by the signatures on the cards and the petitions introduced in evidence by the United. ARMOUR & COMPANY 575 The device of certification without an election seems to me partic- ularly appropriate when there is, as in this case, only one labor organization seeking to be designated as the representative' of the employees. [SA-ME TITLE] AMENDMENT TO DIRECTION OF ELECTION July 24, 1939 On July 12, 1939, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding. The Direction of Election provided that an election be held within fifteen (15) days from the date of Direction under the direction and supervision of the Regional Director for the Sixteenth Region (Fort Worth, Texas). The Board hereby amends the Direction of Election by striking therefrom the words "within fifteen (15) days from this Direction of Election" and substituting therefor the words "within twenty-five (25) days from the date of this Direction of Election." 13 N. L. R. B., No. 64a.