H & M Packing Co.

National Labor Relations Board - Board Decisions

Dec 21, 1943

53 N.L.R.B. 1485 (N.L.R.B. 1943)

In the Matter of Louis HELLER AND BEN MELNICK , A PARTNERSHIP DOING
BUSINESS AS H & M PACKING COMPANY and UNITED PACKINGHOUSE
WORKERS OF AMERICA
Case No. 17-B-7928.-Decided December 21, 1943
Messrs. Louis E. Gelt and Irving Zveitel, both of Denver, Colo., for
the Company.
Mr. Floyd Brouillard , of Denver , Colo., for the C. I. O.
Mr. Floyd L. Case , of Denver , Colo., for the A. F. L.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a second amended petition duly filed by Packinghouse Work-
ers Organizing Committee,' herein called the C. I. 0., alleging that a
question affecting commerce had arisen concerning the representation
of employees of Louis Heller and Ben Melnick, a partnership doing
business as H & M Packing Company, Denver, Colorado, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before John A. Weiss, Trial
Examiner. Said hearing was held at Denver, Colorado, on November
16,1943. The Company, the C. I. 0., and Amalgamated Meat Cutters
luid Butcher Workmen of North America, Packing House Workers
Union, Local No. 641, affiliated with the American Federation of
Labor, herein called the A. F. L., appeared,2 participated, and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
1 The evidence presented at the hearing indicated that the organization known as Pack-
ing House Workers Organizing Committee changed its name to "United Packinghouse
Workers of America," on October 15, 1943 All papers in this proceeding are hereby
amended so as to reflect the proper name of the petitioning labor organization
2 International Union of Operating Engineers , Local Union No. 1, herein called the Engi-
neers , and International Brotherhood of Teamsters, Chauffeurs , Warehousemen , and Helpers
of America, Produce Drivers, Helpers and Warehousemen Local 542 , herein called the
Teamsters , although duly served with notice, made no formal appearance at the hearing.
53 N L. R. B , No 264.
1485
.59013-44-vol 53-9555
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded an opportunity to
file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Louis Heller and Ben Melnick, a partnership doing business as
H & M Packing Company, is engaged in the purchase, slaughter, and
processing of livestock, and the sale and distribution of said prod-
ucts. The principal office and packing house of the partnership is
located at Denver, Colorado ; said partnership is duly licensed and
qualified under both State and Federal statutory requirements. In
the course and conduct of its business the Company purchased, for
the 6 months' period commencing January 1, 1943, and ending June
30, 1943, livestock valued at, approximately $1,900,000, of which about
25 percent was shipped to the Company from points outside the State
of Colorado. During the same period the sales of the Company's
finished products were valued in excess of $2,000,000, of which ap-
proximately 30 percent was sold, transported, and distributed to
points outside the State of Colorado. , The Company admits that it
is engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Packinghouse Workers of America is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to
membership employees of the Company.
Amalgamated Meat Cutters and Butcher Workmen of North
America, Packing House Workers Union, Local No. 641, is a labor
organization affiliated with the American Federation of Labor, admit-
ting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 1, 1942, the Company and the A. F. L. executed an
agreement covering the Company's production employees which, by
its terms, remained in effect until August 31, 1943. On or about
August 28, 1943, the C. I. O. requested recognition of the Company as
the bargaining representative of certain of its employees; the Com-
pany refused the request, stating that it was operating under a con-
tract with the A. F. L. covering the employees whom the C. I. O.
desired to represent, and therefore it would require determination
H & M PACKING COMPANY 1487
of the question concerning representation by the Board. The A. F. L.
contends that the afore-mentioned contract constitutes a bar to the
instant proceeding; it further contends that the limitation on the
expenditure of the Board's funds in the Appropriations Act 3 pre-
cludes the Board from proceeding in this case. However, we are of
the opinion that the request of the C. I. O. was timely.made,4 and
that, for reasons stated in the recent U. S. Bedding Company case, 6
the second contention of the A. F. L. is without merit. Accordingly,
we find that the contract of September 1, 1942, between the Company
and the A. F. L. does not constitute a bar to the instant proceeding.
A statement of the Field Examiner, introduced into evidence at
the hearing, indicates that the C. I. O. represents a substantial num-
ber of employees in the unit hereinafter found appropriate.6
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 Company' has been operating under closed-shop agreements
with three separate labor organizations covering units comprised 'of
employees engaged as production workers, truck drivers, and operat-
ing engineers, respectively? The only employees involved in the in-
stant proceeding are the production workers presently represented by
the A. F. L.8
Both the C. L-O. and A. F. L. are agreed that all production work-
ers of the Company, excluding supervisors above the grade of work-
ing foremen, office workers, truck drivers, and operating engineers,
constitute an appropriate unit. A dispute exists, however, with re-
spect to working foremen ; the A., F. L. would include them within
the unit, whereas the C. I. O. would exclude them.
The record indicates that the Company employs 3 working foremen
who supervise groups of employees ranging in numbers from 3 to 15
3 N. L. R . B. Appropriations Act, 1944 , Title IV, Act of July 12, 1943 , P. L. 135, 78th
Congress , 1st Sess. -
4 Matter of Laclede Steel Company , 49 N. L . R. B. 161.
5 52 N L R. B 382
"The Field Examiner reported that the C. I' 0 submitted 15 authorization cards con-
taining apparently genuine original signatures ; that 14 of these designations contained
names appearing upon the Company ' s pay roll of September 20, 1943. The record indicates
that there are between 15 and 25 employees in the unit sought by the C. I. O.
The A. F. L. relies upon its contract with the Company dated September 1, 1942, for the
establishment of its interest.
* The truck drivers and operating engineers are currently represented by the Teamsters,
and the Engineers , respectively.
' The C. I. 0 in its petition , had originally sought a unit comprised of all production
and maintenance workers of the Company . At the hearing , however , it was disclosed that
all maintenance work was performed by operating engineers who, as stated before, wei e
included within a unit represented by the Engineers The C. I. 0. thereupon withdrew
its contention that maintenance workers be included within the unit which it sought.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persons. These employees have authority to hire and discharge, and
to effectively recommend such action. Accordingly, we shall exclude
these employees from the unit since they fall within our customary
definition of supervisory employees.
We find that all production employees of the Company, but exclud-
ing office workers, truck drivers, operating engineers, working fore-
men, and all other supervisory employees with authority to hire, pro-
mote, discipline, discharge, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. The
A. F. L. desires that eligibility to vote b0 determined as of the last
pay-roll period for the month of August, the pay-roll period imme-
diately preceding the expiration date of its contract. In the absence
of any persuasive reason for departing therefrom, we shall adhere
to, our customary practice, and shall direct that the employees of the
Company eligible to vote in the election shall be those in the appro-
priate unit who were employed during the pay-roll period immedi-
ately preceding the date of the Direction of Election herein, subject
to the limitations and additions set forth in the Direction.
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-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Louis Heller
and Ben Melnick, a partnership doing business' as H & M Packing
Company, Denver, Colorado, an election by secret ballot shall be con-
ducted 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 Seventeenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work
during said pay-roll period .because they were ill or on vacation or
H & M PACKING COMPANY 1489
temporarily laid off, and including employees in the armed forces of
the United States who present themselves 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 they desire to be represented by
United Packinghouse Workers of America, affiliated with the Con-
gress of Industrial Organizations , or by Amalgamated Meat Cutters
and Butcher Workmen of North America , Packing House Workers
Union, Local No. 641 , affiliated with the American Federation of
Labor, for the purposes of collective bargaining , or by neither.