Iowa Poultry Producers Marketing Association

National Labor Relations Board - Board Decisions

Jan 30, 1940

19 N.L.R.B. 1063 (N.L.R.B. 1940)

In the Matter of IowA POULTRY PRODUCERS MARKETING ASSOCIATION
and UNITED PACKING HOUSE WORKERS OF AMERICA, LOCAL UNION
No. 1 OF THE PACKING HOUSE WORKERS ORGANIZING COMMITTEE,
AFFILIATED WITH THE C. I. O. and AMALGAMATED MEAT CUTTERS
AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL UNION No.
591, AFFILIATED WITH THE A. F. OF L.
Case No. RE-I.-Decided January 30, 1940
Poultry and Egg Producing and Feed Manufacturing Industry-Investigation
of Representatives: controversy concerning representation of employees: con-
flicting claims by rival organizations that each represents majority of em-
ployees in bargaining unit or units claimed to be appropriate ; petition filed
by employer-Unit Appropriate for Collective Bargaining: production and
maintenance employees, including day and night engineers, excluding fore-
men, working foremen, city, salesman, and office, clerical, and supervisory em-
ployees-Representatives: eligibility to participate in choice : part time and
temporary, seasonal, employees excluded upon stipulation of rival labor or-
ganizations-Election Ordered
Mr. Lester Asher, for the Board.
Stephens c1 Wisdom, by Mr. Carl J. Stephens, of Des Moines, Iowa,
for the Company.
Mr.. John J. Brownlee, of Chicago, Ill., and Mr. L. Jacobsen, of
Ottumwa, Iowa, for Local Union No. 1.
Mr. Michael Pietrzak, of Chicago, Ill., and Mr. Sam Twedell, of
Sioux Falls, S. Dak., for Local Union No. 591 and the Amalgamated.
Mr. George Turitz, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 18, 1939, Iowa Poultry Producers Marketing Asso.
ciation, Ottumwa, Iowa, herein called the Company, filed with the
Regional Director for the Eighteenth Region (Minneapolis, Minne-
sota ), a petition alleging„ that a question affecting commerce had
arisen concerning ;the representation of employees of the Company,
and requesting an investigation and certification of representatives
19 N. L. R. B., No. 110.
1063
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to Section 9 (c) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. On October 21, 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 2, ordered an in-
vestigation and authorized the Regional Director to conduct it and to
provide for an appropriate hearing upon due notice.
On October 25, 1939, the Regional Director issued a notice of hear-
ing and on October 28 and November 4, 1939, he issued notices of con-
tinuance of hearing, copies of each of which were duly served upon
the Company and upon Local Union No. 236, Amalgamated Meat
Cutters and Butcher Workmen of North America, herein called Local
Union No. 236,1 and United Packing House Workers of America,
Local Union No. 1 of the Packing House Workers Organizing Com-
mittee, herein called Local Union No. 1,2 labor organizations claiming
to represent employees directly affected by the investigation. Pur-
suant to notice, a hearing was held on November 13, 1939, at Ottumwa,
Iowa, before John T. Lindsay, the Trial Examiner duly designated
by the Board. The Board, the Company, Local Union No. 1, Local
Union No. 591, and Amalgamated Meat Cutters and Butcher Work-
men of North America, herein called the Amalgamated, were repre-
sented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded to 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 such 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
Iowa Poultry Producers Marketing Association is an Iowa corpora-
tion, having its place of business in Ottumwa, Iowa. It is a non-
s Local Union No. 236 was succeeded , with respect to the Company ' s employees , by Local
Union No. 591, Amalgamated Meat Cutters and Butcher Workmen of North America , herein
called Local Union No. 591. At the hearing , on motion made by Local Union No. 591 and
consented to by the other parties , the notice of hearing and "all official documents" were
amended by substituting the words "Local Union No. 591" for the words "Local Union
No. 236" wherever the latter words appeared , including the title of the case.
2 At the hearing , on motion of Local Tinion No. 1, consented to by the other parties, the
petition and other papers in the proceeding were amended so that the name of Local Union
No. 1 would appear in all cages, including the title of the case , as "United Packing House
Workers of America , Local Union No. 1 of the Packing House Workers Organizing Commit-
tee, affiliated with the C. I. 0." Local Union No. 1 was the successor of United Packing
House Workers, Local Industrial Union Number 32 , a labor organization , herein called
Local Union No. 32 , which was affiliated with the Committee for Industrial Organization.
IOWA POULTRY PRODUCERS MARKETING ASSOCIATION 1065
profit, non-stock, cooperative corporation, engaged in manufacturing
feed, which it sells to its members, and in buying and selling poultry
and eggs raised and produced by its members.
During the year 1938 the Company's purchases of eggs and poultry
amounted to approximately $246,000 and its purchases of materials
for feed amounted to approximately $58,000. Approximately 25
per cent of the materials for feed originated and were purchased by
the Company outside of the State of Iowa. The rest of the Company's
purchases all originated within the State `of Iowa. During the same
period the Company's sales of eggs and poultry amounted to approxi-
mately $371,000, of which approximately 90 per cent represented mer-
chandise sold and shipped outside of the State of Iowa. Its sales of
feed during 1938 amounted to approximately $79,000, all of which
represented merchandise sold within the State of Iowa.
The Company's business is seasonal and the number of production
and maintenance workers employed by it, including foremen, varies
from approximately 16 to approximately 62.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North
America is a labor organization affiliated with the American Federa-
tion of Labor. Local Union No. 591, Amalgamated Meat Cutters and
Butcher Workmen of North America, and Local Union No. 236,
Amalgamated Meat Cutters and Butcher Workmen of North America,
are locals of the Amalgamated. Originally employees of the Com-
pany who joined the Amalgamated were admitted to Local Union
No. 236, but subsequently those employees were granted the charter
for Local Union No. 591, which is the local of the Amalgamated at
present admitting employees of the Company to membership.
United Packing House Workers of America, Local Union No. 1 of
the Packing House Workers Organizing Committee, is a labor organ-
ization affiliated 'with the Congress of Industrial Organizations,
admitting employees of the Company to its membership.
III. THE QUESTION CONCERNING REPRESENTATION
On November 22, 1937, the Company entered into a written agree-
ment with Local Union No. 32 in which Local Union No. 32 was
recognized as the sole collective bargaining agency for certain em-
ployees of the Company. Upon the expiration of that agreement the
Company, at various times during the following 9 months, negotiated
with Local Union No. 32 and then with its successor, Local Union. No.
1, with a view to making a new agreement, but without success. It
recognized Local Union No. 1 as the representative of the employees
until on or about September 1, 1939. On that day Local Union No.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
236 wrote a letter to the Company setting forth the names of 26 em-
ployees of the Company who had designated the Amalgamated as-
their representative for collective bargaining. Thereupon, on Sep-
tember 8 the Company informed Local Union No. 236 and Local
Union No. 1 that since each organization claimed to represent a ma
jority of its employees, it could not negotiate a contract with either
until its majority was duly established. At the hearing Local Union
No. 1 and Local Union No. 591 stipulated that each of them claimed
to represent a majority of the Company's employees in an appropriate
unit.
We find that a question has arisen concerning 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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
At the hearing Local Union No. 1 claimed that a unit consisting
of the production and maintenance employees of the Company,
excluding office, clerical, and supervisory employees, and foremen,
would be appropriate for the purposes of collective bargaining.
The unit which Local Union No. 591 claimed to be appropriate was
substantially the same as that requested by Local Union No. 13
except that it desired the inclusion therein of the Company's city
salesman and working foremen, while Local Union No. 1 sought
their exclusion. The Company made no contention as to the appro-
priate unit and expressly refused to make any contention with respect
to the working foremen.
The production employees of the Company are those in the egg,
poultry, and feed departments. The maintenance employees are the
3 Counsel for Local Union No . 591 contended that the appropriate unit consisted of all
employees of the Company eligible for membership in that organization , namely, egg.can-
dlers, conveyors , engineers , feeders, graders, hangers , laborers , packers, pickers, pinners,
poultrymen , receivers , tippers, wax breakers , and working foremen , excluding foremen,
office workers , salesmen , and clerical employees . He also said that Local Union No. 591 is
"an industrial organization in the full sense of the word . We do not draw any line of
demarcation any place ." Although counsel for Local Union No. 591 did not mention kill-
ers or boxers , classifications employed by the Company , as being eligible for membership
in that organization , he did not say that they were ineligible and did not request their
exclusion from the unit.
IOWA POULTRY PRODUCERS MARKETING ASSO'C'IATION 1067
engineers and the general maintenance employees. The employees
in the egg department receive, grade, candle, and pack eggs. The
employees in the poultry department receive, feed, fatten, kill, pick,
pack, and ship poultry. The employees in the feed department
receive raw materials and manufacture them into finished feeds.
The amount of the Company's business, especially in the egg and
poultry departments, fluctuates considerably, depending upon the
season of the year, and production employees are shifted from one
department to another as they are needed. The Company computes
the employees' seniority on a plant-wide basis..
The Company employs a single city salesman. He takes care of
the Company's business within the city of Ottumwa, going about
on a truck soliciting orders, making deliveries, and collecting pay-
ments. He also spends a substantial amount of time at the Com-
pany's plant loading and unloading his truck and packing the eggs
which he sells. The Company classifies him as an office employee
and does not include him on its seniority list of production and
maintenance employees. Although some of the city salesman's work
is the same as that performed by production employees, it is clear
that on the whole his job is of a different nature from theirs, and
we shall exclude him from the unit.
The Company employs five foremen, all of whom are working
foremen, carrying on production work during the time they can
spare from their supervisory duties. None have the power to hire
or to discharge employees, but their recommendations in this respect
are generally followed. They are paid by the week while the other
production employees are paid by the hour. Moreover, although
the Company generally lays employees off in accordance with their
seniority, the foremen are the last employees to be laid off, irre-
spective of the greater seniority of other employees. In view of their
supervisory duties, the different conditions of their employment,
and, especially, the claim of one of the rival unions that they should
be excluded, we shall exclude all the foremen from the unit.4
Local Union No. 1 and Local Union No. 591 stipulated that the
night engineer, and the day engineer, who is paid by the week and
has supervisory authority over the night engineer, should be included
in the unit. We shall give effect to this stipulation of the unions.
We find that the production and maintenance employees of the
Company, including the day and night engineers but excluding fore-
men, working foremen, the city salesman, and office, clerical, and
supervisory employees constitute a unit appropriate for the purposes
4Matter of Armour & Company and Local 261, Meat Cutters Union, etc., 15 N. L. R. B.
268; Matter of Electric Auto-Lite Company, American Enameled Magnet Wire Division
and International Association of Machinists , Local 218, etc., 10 N. L. R. B. 1239, 1244.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing Local Union No. 591 and Local Union No. 1 re-
quested that the Board hold an election in the unit, found appropriate
by the Board. We find that the question concerning representation,
which has arisen, can best be resolved by means of an election by
secret ballot.
Local Union No. 1 and Local Union No. 591 stipulated at the hear-
ing that all employees hired for the last time on or after October 5,
1939, including those who had also worked for the Company prior
to that date, were temporary, seasonal employees, and should be
ineligible to participate in any election directed by the Board in this
proceeding. They stipulated, further, that one Isaacson, a killer,
was a part-time employee and should be ineligible to vote in the
election. The Company expressed no opposition to these stipulations.
In accordance with the stipulations, Isaacson and all employees hired
for the last time on or after October 5, 1939, shall be ineligible to
vote in the election hereinafter directed.
As stated above, the number of persons actually working in the
Company's plant at any one time fluctuates considerably with the
season of the year. The record does-not show whether or not the
Company's current pay roll includes all permanent employees. On
the other hand, in accordance with the stipulation above referred to,
we have ruled that persons last hired on or after October 5, 1939,
shall, as temporary employees, be excluded from participation in the
election . The pay roll for the period next preceding October 5, 1939,
would thus include all permanent employees with the possible excep-
tion of those who did not work during such period because they were
ill or on vacation, and eligibility to vote in the election will be
determined on the basis of that pay roll.
On the basis of the above findings of fact, and upon the entire
record in the proceeding, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Iowa Poultry Producers Marketing Asso-
ciation, Ottumwa, Iowa, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. The production and maintenance employees of the Company,
including the day and night engineers but excluding foremen, work-
IOWA POULTRY PRODUCERS MARKETING ASSOCIATION 1069
ing foremen , the city salesman, and office, clerical, and supervisory
employees constitute a unit appropriate 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-
lations Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, it is hereby
DuiECTED that, as part of the investigation ordered by-the Board
to ascertain representatives for the purposes of collective bargaining
with Iowa Poultry Producers Marketing Association, Ottumwa,
Iowa, an election by secret ballot shall be conducted as early as possi-
ble but not later than thirty (30) days from the date of this Direc-
tion, under the direction and supervision of the Regional Director
for the Eighteenth Region, acting in this matter as agent for the
National Labor Relations Board and subject to Article III, Section
9, of said Rules and Regulations, among all the production and main-
tenance employees, including the day and night engineers, employed
by the said Company during the pay-roll period next preceding
October 5, 1939, excluding foremen, working foremen, the city sales-
man, and office, clerical, and supervisory employees, and those who
have since quit or been discharged for cause, but including employees
who did not work during such pay-roll period because they were ill
or on vacation and employees who have since been temporarily laid
off, to determine whether they desire to be represented by Local
Union No. 591, Amalgamated Meat Cutters and Butcher Workmen
of North America, affiliated with the American Federation of Labor,
or by Local Union No. 1, United Packing House Workers of America
of Packing House Workers Organizing Committee, affiliated with
the C. I. O.,5 for the purposes of collective bargaining, or by neither.
Local Union No. 1 and Local Union No. 591 requested that their names appear on the
ballot in the respective forms set forth in this Direction of Election.