John Engelhorn & Sons

National Labor Relations Board - Board DecisionsAug 6, 1941

33 N.L.R.B. 1139 (N.L.R.B. 1941)

In the Matter Of JOHN ENGELHORN & SONS and PACKINGHOUSE WORKERS ORGANIZING COMMITTEE , C. I. O. Case No. R--2660.-Decided August 6, 1941 Jurisdiction : meat packing industry. Investigation and Certification of Representatives : existence of. question : re- fusal to accord union recognition ; contract which superseded contract in effect for more than 3 years, and which was entered into after filing of petition, no bar to; pay roll preceding execution of closed-shop contract to determine eligibility ; election necessary. Unit Appropriate for Collective Bargaining : all production and shipping em- ployees with the exception of executives, superintendents, non-working foremen, maintenance men, salesmen, engineers, firemen, chauffeurs, checkers, and office workers ; stipulation as to. Mr. Daniel R. Dimick, for the Board. Osborne, Cornish di Scheck, by Mr. Harry V. Osborne, of Newark, N. J., for the Company. Mr. Samuel L. Rothbard, of Newark, N. J., for the Packinghouse Workers. Mr. William Karlin, by Mr. Leo Greenfield, of New York City, for Local 174. Mr. Frederic B. Parkes, end, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 9, 1941, Packinghouse Workers Organizing Committee, C. I. 0., herein called Packinghouse Workers, filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of John Engelhorn & Sons, Newark, New Jer- sey, 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 June 9, 1941, the National Labor Relations Board, herein called the Board, act- ing pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as 33 N. L. R. B, No. 194. 1139 450122-42-vol 33-73 1140 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD amended, ordered an investigation and authorized the Regional Direc- tor to conduct it and to provide for an appropriate hearing upon due notice. On June 12, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the Packing- house Workers, and upon Local 422, Amalgamated Meat Cutters and Butcher Workmen of North America, herein called Local 422,1 and Butchers Union of Greater New York, Local 174, A. F. of L., herein called Local 174, labor organizations claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on June 23, 1941, at Newark, New Jersey, before Edward Grandison Smith, the Trial Examiner duly designated by the Chief Trial Examiner.' The Board, the Company, the Packinghouse Workers, and Local 174 were represented by counsel or official rep- resentatives 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 all parties. Local 174 moved that the petition be dismissed on the grounds that (1) there is no question concerning representation within the meaning of sec- tion 9 of the Act; (2) the Packinghouse Workers has no contract with 'the Company and since May 26, 1941, does not represent em- ployees of the Company; (3) this proceeding-will impair the obliga- tions of the contract executed on May 29, 1941, by the Company and. Local 174; and (4) said contract constitutes a bar to a present inves- tigation and determination of representatives. The Company con- curred in Local 174's motion to dismiss. The Trial Examiner re- served ruling on the motion for the Board. On the basis of the facts set forth in Section III, below, the motion is hereby denied. During the course of the hearing, the Trial Examiner made various rulings on other motions and on objections to the admission of evi- dence. 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 I. THE BUSINESS OF THE COMPANY John Engelhorn & Sons, a New Jersey corporation, is engaged in the processing, slaughtering, packing, sale, and distribution of hogs, carcasses, and related products at its plant at Newark, New Jersey. During the calendar year 1940, the Company purchased materials for 1 Local 422 did not appear at the hearing. JOHN ENGLEHORN & SONS 1141 use at its Newark plant valued at more than $1,639,286.76, of which approximately 95 per cent were purchased and shipped to it from points outside the State of New Jersey. During the same period, the Company sold and distributed finished products valued at more than $2,035,891.93, of which approximately 75 per cent were sold and shipped to points outside the State of New Jersey. The Company employs approximately 65 employees. II. THE ORGANIZATIONS INVOLVED Packinghouse Workers Organizing Committee is a labor, organi- zation affiliated with ' the Congress of Industrial -Organizations, ad- mitting employees of the Company to membership. Butchers Union of Greater New York, Local 174 of the AmaIga- matedMeat Cutters and Butcher Workmen of North America, is a labor organization affiliated with the American Federation of Labor. admitting employees of the Company to membership. III. THE QUESTION CONCERNING REPRESENTATION 'Amalgamated Meat Cutters and Butcher Workinen of North Amer- ica has chartered, several years ago, Local 174 and Local 422. The jurisdiction of Local 422 is confined to Newark, New Jersey, and vicinity, and prior to May 1, 1941, the jurisdiction of Local 174 was confined to New York City and vicinity.' After that date, however, the latter local was given jurisdiction over New Jersey. On January 27, 1938, Local 422 filed a petition for investigation and certification of representatives. On February 3, 1938, the Company and Local 422 entered into an agreement providing for a consent election, which was won by Local 422. On July 8, 1938, the Company and Local 422 entered into a collective bargaining contract, which recognized Local 422 as the exclusive bar- training representative of all hourly paid employees of the Company and provided, "this agreement shall remain in full force and effect until November 1, 1938, and shall be considered to be renewed from year to year thereafter unless at least thirty days' notice of intention to the contrary is given by either party." The Packinghouse Workers commenced its organizational activities about April 30, 1941. On May 8, 1941, the Packinghouse Workers informed the Company by letter that it represented a majority of the Company's employees and requested the Company to set a date for a conference. On May 9, 1941, the Company refused to recognize or negotiate with the Packinghouse Workers for the reason that the 1938 contract with Local 422 was still in effect. 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 19, 1941, a strike was called and was participated in by 32 workers, 16 others remaining at their work.2 Soon after the strike commenced, an international representative of the Amalgamated Meat Cutters and Butcher Workmen of North America, investigated the situation. Claiming the 1938 contract with Local 422 still to be in effect, he called upon Local 174 to furnish men to keep the plant in operation. Ten workers were sent the Company from New York by Local 174. The Amalgamated's international representative and two representatives of Local 174 convinced the strikers that they should return to work and that they should become members of Local 174. On May 27, 1941, the three representatives and a committee of three chosen by the employees negotiated a contract with the Company, which was subsequently reduced to writing and signed by the Com- pany and'Local 174 on May 29, 1941, and ratified by unanimous vote of all employees within the unit sought herein, on June 6, 1941' The contract recognized Local 174 as the exclusive bargaining agent of all the employees within the unit, which coincided, in general, with the stipulated unit in the instant proceeding. The contract also pro- vided that the Company "agrees to retain in its employ only members of the Union in good standing, and to employ new workmen through the employment office of the Union." The Company contends that its contract with Local 174 constitutes a bar to a present investigation and determination of representatives. It further contends that, ifthe contract with Local 174 is not a bar, then the 1938 contract with Local 422 constitutes such a bar. Local 174 concurs in the position taken by the Company. The contract between the Company and Local 174 clearly is not a bar since it was entered into on May 29, 1941, after the Company had notice of the Packinghouse Workers' claim to represent the Company's employees and after the petition was filed by the Packinghouse Workers.3 Since the Company's contract with Local 174 superseded the contract executed with Local 422 in 1938, the latter contract does not constitute a bar to a present determination of representatives. Furthermore, the contract with Local 422 had been in effect for almost 3 years and hence could not have constituted a bar to this proceeding even if it had not been abrogated by the subsequent contract between the Company and Local 174.4 In view of the closed-shop provisions in the contract between the Company and Local 174, we find Local 2 The Packinghouse Workers claims that the strike was called by the employees themselves and not by the C. I. 0 It further contends that the strike ended on May 26, 1941, when the strikers voluntarily returned to work . Local 174 asserts that the strike ended on May 28, 1941 3 See Matter of Solvay Process Company and Local 12103, Chemical Division of District 50, United Mine Workers of America , C. I. 0., 29 N. L. R. B. 24. 4 See Matter of Rosedale Knitting Company and Rosedale Employees Association, 23 N. L R. B . 527; Matter of Lewis Steel Products Corp and Local 1225 of the United Eldetrical, Radio cC Machine Workers of America, C . 1. 0., 23 N. L R. B. 793. JOHN ENGLEHORN & SONS 1143 174's contention that the Packinghouse Workers no longer represents any of the Company's employees to be without merit.5 A statement of the Regional Director introduced into evidence at the hearing shows that the Packinghouse Workers and Local 174 rep- resent a substantial number of the employees in the unit found below to be appropriate s 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 commerce and the free flow of commerce. V. THE APPROPRIATE UNIT At the hearing the Company, Local 174, and the Packinghouse Workers stipulated, and we find, that all production and shipping employees of the Company with the exception of executives, superin- tendents, non-working foremen, maintenance men, salesmen, engineers, firemen, chauffeurs, checkers, and office workers, constitute a unit ap- propriate for the purposes of collective bargaining. We further find 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 We find that the' question concerning representation which has arisen can best be resolved by means of an election by secret ballot. The Company and Local 174 request the use of the pay roll nearest b See Matter of The George W Borg Corporation and United Clock Workers Union, 25 N. L R B. 481. 6 The Packinghouse workers submitted 33 authorization cards to the Regional Director, who found the signatures of all 33 cards to be genuine and 31 to be the names of persons on the Company 's pay roll of May 17, 1941 On that date , there were approximately 48 employees within the unit sought by the Packinghouse Workers The Regional Director reported that Local 174 submitted no evidence in support of its claim to represent any of the employees in the alleged appropriate unit, relying entirely upon the contract executed on July 8 , 1938, by the Company and Local 422 and the contract between the Company and Local 174, executed May 29, 1941. An organizer for Local 174 testified at the hearing that all the employees within the stipu- lated unit have joined Local 174 and have paid their initiation fees. He further stated that all workers are members in good standing of Local 174 except 3 or 4 who have not paid their June dues 1144 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD the date of election to determine eligibility to vote. The Packing- house Workers desire the use of the pay roll of May 17, 1941, for such purpose. In view of the strike of May 19, 1941, and the closed- shop provisions of the contract entered -into between the Company and Local 174 on May 29, 1941, we shall direct that the employees of the Company eligible to vote in the election shall be those in the appropriate unit who were employed during the pay-roll period end- ing May 17, 1941, subject to such limitations and additions as are set forth in the Direction of Election herein. 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 rep- resentation of employees of John Engelhorn & Sons, Newark, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. , 2. All production and shipping employees excluding executives, superintendents, non-working foremen, maintenance men, salesmen, engineers, firemen, chauffeurs, checkers, and office workers, 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, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations- Series 2, as amended, it is hereby DmECTEn that, as part of the investigation authorized. by the Board to ascertain representatives for the purposes of collective bargaining with John Engelhorn & Sons, Newark, New Jersey, an election by secret ballot shall be conducted as soon 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 Second 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 production and shipping employees, of the Company who were employed during the pay-roll period ending May 17, 1941, in- cluding employees who did not work during such pay roll period be- cause they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding executives, superintendents, non-working foremen, maintenance men, JOHN ENGLEHORN & SONS 1145 salesmen , engineers , firemen, chauffeurs , checkers , office workers, and employees who have since quit or been discharged for cause, to de- termine whether they desire to be represented by Packinghouse Workers Organizing Committee , affiliated with the Congress of In- dustrial Organizations , or by Butchers Union of Greater New York, Local 174 of the Amalgamated Meat Cutters and Butcher Workmen of North America , affiliated with the American Federation of Labor, for the purposes of collective bargaining , or by neither.