Swift & Co.

National Labor Relations Board - Board Decisions

Apr 28, 1942

40 N.L.R.B. 931 (N.L.R.B. 1942)

In the Matter of SWIFT & COMPANY, FERTILIZER WORKS and BROTHER-
HOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, LAKELAND LODGE
No. 823
In the Matter of SWIFT & COMPANY, FERTILIZER WORKS and UNITED
PHOSPHATE WORKERS' LOCAL UNION No. 22685, A. F. OF L.
Cases Nos. R-365,6 and R-3657, respectively.Decided April 28, 194
Jurisdiction : phosphate rock mining and fertilizer manufacturing industry.
, Investigation and Certification of Representatives : existence of question •
refusal by Company to accord recognition to either of competing labor organiza-
tions presenting conflicting claims to representation; election necessary.
Unit Appropriate for Collective Bargaining : firemen and enginemen employed
on Company railroad held to either constitute separate unit or be merged with
industrial unit; elections ordered (1) to ascertain desires among-firemen and
enginemen, including flagman who at times acted as fireman ; other flagmen
and track repair foreman and crew excluded; (2) among other employees of
Company with certain stipulated exclusions ; various other employees whom
industrial union desired included, and Company desired excluded from unit,
held to be supervisory employees and therefore excluded ; prospectors included
at request of industrial- union over Company's objection that they were tem-
porary employees, where it appeared that prospectors, although employed for
indeterminate period and temporary, had worked for past year and had not yet
been permanently laid off.
Mr. William N. Straclc, of Chicago, Ill., for the Company-
Mr. Harvey S. Parrish, of Lakeland, Fla., and Mr. R. J. Tillery, of
Cleveland, Ohio, for the Brotherhood.
Mr. J. L. Rhodes, of Jacksonville, Fla., for the United.
Mr. Charles W. Schneider, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On October 20, 1941, United Phosphate Workers' Local Union No.
22685, affiliated with the American Federation of Labor, herein called
the United, filed with the Regional Director for the Fifteenth Region
(New Orleans, Louisiana) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
40 N. L. It. B., No. -163.
931
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swift & Company, Fertilizer Works, Bartow, Florida, herein called
the Company, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On November 24, 1941,
Brotherhood of Locomotive Firemen and Enginemen, Lakeland Lodge
No. 823, herein called the Brotherhood, filed a similar petition with
the Regional Director for the Tenth Region (Atlanta, Georgia). On
November 25, 1941, by order of the National Labor Relations Board,
herein called the Board, the proceeding arising on the petition filed
by the United was transferred to the Tenth Region. On March 3, ^
1942, the Board, acting pursuant to Section 9 (c) of the Act, and
Article III, Section 3, and Section 10 (c) (2) of National Labor
Relations Board Rules and Regulations-Series 2, as amended, or-
dered an investigation with respect to both petitions, authorized the
Regional Director to conduct it and to provide for an appropriate
hearing upon due notice, and ordered the two cases to be consolidated.
On March 9, 1942, the Acting Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
United, and the Brotherhood. Pursuant to notice, a hearing was
held on March 18, 1942, at Bartow, Florida, before Alexander E.
Wilson, Jr., the Trial Examiner duly designated by the Chief Trial
Examiner. The Company, the United, and the Brotherhood were
represented at 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. 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 are hereby affirmed.
The Company filed 'a brief which the Board has duly considered.
Upon-the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Swift & Company Fertilizer Works is a division of Swift & Com-
pany, and is engaged, near Bartow, Florida, in the operation of a
phosphate mine and a fertilizer manufacturing plant. The Company
produces annually over 250,000 tons of phosphate rock-valued at more
than $500,000, 90 to 95 percent of which is shipped outside the State
of Florida. In the manufacture of fertilizer, the Company uses vari-
ous raw materials such as super-phosphate, sulphate of ammonia,
nitrate of soda, tankage, sulphate of potash, muriate of potash, and
numerous others. The value of such raw materials purchased annu-
ally is in excess of $150,000. Most of the materials are received from
SWIFT & COMPANY 933
sources outside the State of Florida. The Company produces annu-
ally fertilizer to the value of over $300,000, none of which is shipped
outside the State of Florida.
II. THE ORGANIZATIONS INVOLVED
United Phosphate Workers' Local Union No. 22685 is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to membership employees of the Company.
Brotherhood of Locomotive Firemen and Enginemen, Lakeland
Lodge No. 823, is an unaffiliated labor organization, admitting to
membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
On September 24 and October 15, 1941, the Brotherhood and the
United respectively notified the Company that they represented a
majority of the Company's employees in the units they contended to
be appropriate. The Company requested of each organization that
it be certified by the Board.
Each labor organization represents a substantial number of em-
ployees in the unit. which it alleges to be appropriate.'
We find that questions have arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON
COMMERCE
We find that the questions concerning representation which have
arisen, occurring in connection with the operations of the Company
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The United contends that all employees of the Company excluding
managerial, clerical, and supervisory employees, constitute an appro-
1 The Brotherhood submitted to a Field Examiner of the Board 10 signed application
cards, all of which contained names of employees on the Company 's pay roll of, undis-
closed date, listing 17 persons in the unit which the Brotherhood alleges to be appropriate.
Three of the cards were dated in March, five in April , one in May , and one in September
1941 . The Brotherhood also presented other evidence of membership - ,
The United submitted to the Field Examiner 144 application cards, all bearing
apparently genuine original signatures ,`100 of which were names of persons on the
Company's pay roll of undisclosed date. Of the 100 cards , 3 were undated , 11 dated
in March , 9 in April , 23 in.May , 9 in June , 15 in July , 3 in August , 19 in September, 7 In
October, and 1 in November 1941. The testimony indicates that there are approximately
150 employees in the unit claimed by the United.
934 DECISIONS OF NATIONAL LABOR * RELATIONS BOARD
priate unit. The Brotherhood contends that the.firemen and engine-
men employed on the Company's railroad constitute an appropriate
unit. The Company takes no position with reference to that contro-
versy. The Company and the United, however, are in dispute with
respect to the inclusion of certain groups of employees in the larger
industrial' unit, with which the Brotherhood is not concerned. These
are discussed, infra.
The principal offices of the Fertilizer `Yorks are at Agricola,
Florida, where certain other facilities are also located : the phosphate-
rock drying plant, the rock-storage warehouse, the fertilizer=
manufacturing plant, laboratory, machine shop, company houses, and
commissary. The phosphate 'mine is located about 10 miles from
and connected with Agricola by a company railroad.
The mine is an open pit. The rock is apparently mined by hy-
draulic pressure and dragline excavators. It is pumped in solution
to a washer, the clay removed, and the phosphate sand separated by
flotation agglomeration. The phosphate rock or sand is then hauled
by the railroad to Agricola and dumped wet into piles, from which
it is later picked-up by the railroad, taken to drying bins, dried,
and then shipped on order.
None of the ingredients used in the manufacture of fertilizer come
from the mine. From the manufacturing standpoint, the mine and
the fertilizer plant are independent of each other, although under the
same manager and superintendent. , No issue is raised, however, as to
the appropriateness of combining them in one unit.
The Company is 1 of about 9 enterprises of similar character
operating within a 25 mile area around Bartow and comprising what
is known as the Florida Phosphate Mining District.
A. The railroad employees
We first turn to a consideration of the issue whether the firemen
and enginemen employed on the Company's railroad constitute a
separate unit, as contended by the Brotherhood, or should be merged
in the larger unit, as requested by the United.
The locomotives and trackage used on the railroad are owned by
the Company. The equipment is apparently standard gauge. The
cars used. in the hauling of rock are also owned by, the Company.
In addition to hauling rock from the mine to the plant, the railroad,
hauls supplies, principally oil, to the mine, and also hauls to and
from an exchange point with two common carriers : the Seaboard
Airline Railroad and the Atlantic Coast Line Railroad. There are
three locomotives : one Diesel and two steam. Four crews constitute
the regular operating force, each consisting of an engineer, a fireman,
SWIFT & COMPANY 935'
and a flagman. The regular force may be augmented during peak
seasons.
The Company and the Brotherhood stipulated to include in the
proposed railroad bargaining unit the four engineers, the four' fire
men, and also one of the flaglnen, Pierce, who has acted as a fireman
c,n occasions.- The remainder of the flagmen, and the track-repair
crew (consisting of a foreman and six men) were excluded by agree-
ment between the Company and the Brotherhood. The United took
no position on any of these exclusions.
We are of the opinion, and find, that the firemen and enginemen`
whom the Brotherhood seeks to represent, including Pierce, but ex=
eluding the other flagmen and the track-repair crew, may properly
comprise a separate bargaining unit or be merged with the other
employees of the Company as part of a larger unit. We shall direct
that the desires of the employees, themselves, ascertained by means
of M election by secret ballot, shall determine the scope of the unit
in which they `shall bargain.
B. Other contested categories
The United, as has been stated, requested the inclusion in the unit
of all save managerial, clerical, and supervisory employees.
At the hearing the Company and the United stipulated, and we
find, that the following employees should be excluded from the bar-
gaining unit requested by the United : the Works manager, the sales
force, clerical, commissary and filling station employees, the chief
electrician, the mining engineer, horticulturists, foremen in the rock-
dryer plant, the construction foreman, the master mechanic, the
assistant master mechanic; the mine superintendent, the assistant mine
superintendent, the chief supervisor of the flotation plant, and ,the
prospector foreman.
The Company's laboratory employs five chemists and three sample
men or helpers. The United and the Company stipulated to exclude
the chemists and to include the sample men subject to Board ap-
proval. The chemists run analyses from samples, of rock brought
from the mine. The sample men prepare the samples for analysis
and work -under the direction of the chemists. They also wash
glassware and "clean up." Since it appears that the chemists are
professional and technical workers, they will he excluded in accord--
ance.with the desires of the parties. The sample men, however, are
more closely related to the production and maintenance group and
will, therefore, be included within the bargaining unit.
The Company and the United dispute the inclusion of certain
other employees. The United would include these within the appro-
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1
priate unit; the Company would exclude one of these groups, the
prospectors, on the ground that they are temporary employees, and
would exclude the remainder on the ground that they are supervisors.
They are as follows :
The fertilizer plant (Denham, Wright, and Manley) : The fertilizer
plant is in the charge of one Denham, whom the Company calls a
general foreman. Under Denham are two assistants, Wright and
Manley. Denham is clearly a supervisory employee. The entire
operations of the fertilizer plant are under his direction. He has
authority to and exercises the right to discharge. He does no manual
work except that he may occasionally demonstrate to a man how a
job should be done or make a minor repair. We shall exclude him
from the unit.
Wright is secretary-treasurer of the United. He receives from Den-
ham the formula for mixing the type of fertilizer desired, directs the
crew what materials to assemble, weighs the materials as they are
fetched and mixed, and checks the weight of the batches produced.
Wright may occasionally do some manual work such as pushing a
material buggy, sewing sacks, and setting dynamite charges, but
that work is apparently not substantial. Wright has authority to
discharge with Denham's approval and has in the past made recom-
mendations for discharge which have been acted upon. We conclude
that Wright is a supervisory employee and should be excluded from
the bargaining unit.
Manley is described as an apprentice or student foreman who is in
charge when Denham and Wright are absent. Like Wright, he is
regarded by the employees as a supervisor. We conclude that the
nature of his work identifies him more closely with the supervisory
than with the production group. He will, therefore, also be excluded
from the bargaining unit.
Construction Department (Yarborough and McCauley) : Yarbor-
ough is in complete charge of the construction department in the
absence of the foreman. When there is a large construction job at
the mine, Yarborough will be transferred there to superintend it.
He supervises from 4 to 20 or more men and "occasionally" may do
some carpenter work if there is no construction work but "very
rarely." We find that Yarborough is a supervisory employee and
should be excluded from the bargaining unit.
When there is a construction job at the mine, one McCauley serves
as a working foreman. McCauley appears to be an ordinary work-
man. He works on all occasions whether supervising or not. He
will therefore be included in the bargaining unit.
Mechanical Department: The mechanical department maintains a
machine shop at Agricola in charge of a master mechanic, Royer,
SWIFT & COMPANY 937
and an assistant, Luckie, both of whom the Company and the United
stipulated to exclude . Luckie has eight or nine men under him,
recommends hiring and discharge , and performs no manual work.
At the mine there is a mechanical -department employee named
Collier who the Company maintains performs about the same func-
tion at the mine as Luckie does at Agricola . However, it appears
that Collier has a variable crew of from two to eight men and very
often works along with the men if the job is small . He thus appears
to be a working foreman like McCauley , and will therefore be in-
cluded in the bargaining unit.
The Mine Pit Foremen: Chief supervisor of the mine is a super-
intendent , Doke, under whom is an ' assistant named Grant. The
United stipulated that both Doke and Grant are supervisors. Under
them are two pit foremen , Lund and Drawdy. Lund is president
of the United. Although there is some conflict as to the supervisory
status of Lund and Drawdy, it appear's that each has a crew of from
10 to 14 men who pump rock hydraulically from the pit to the washer.
These foremen are in charge of and, as Lund admitted , responsible
for the work of the crew . The crews are larger than those of rock-
dryer foremen , whom the United stipulated to exclude . Doke and
Grant supervise an area of about one square mile and see the pit
crews only occasionally . Lund testified that he once discharged an
employee. In view of these facts , we are of the opinion that the pit
foremen are part of the supervisory force. They will therefore be
excluded from the bargaining unit.
Dragline Operators : Dragline excavators are used in the mine.
These are machines weighing about 400 tons, having a 160-foot boom
and an 8-yard bucket and costing about $150,000. There are three
such excavators , each having a three-man crew consisting of an
operator , an oiler, and a ground man. The operator operates the
controls , the oiler lubricates the machine , makes adjustments, and
"detects faults ." The ground man "does a lot of dirty work, handles
cables and such as that , does the repair stuff for the oiler." Since
it appears that the operators are actually engaged in the operation of
' the machines they, will be included in the bargaining unit.
Flotation Plant Shift Foremen: In the flotation plant, phosphate
sand is separated from ordinary sand by flotation agglomeration.
The plant is in the charge of one W. D. Wilson , whom the Company
and the United have stipulated to exclude . Under Wilson are four
shift foremen , each with a crew of four or five men . The shift fore-
men have the same authority to discharge or make recommendations
as do the other supervisors . They are responsible for the operation
of the plant on their shifts. In view of their supervisory character,
they will be excluded from the bargaining unit.
938 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
- Mining prospectors: The-Company employs a crew of prospectors,
.whom the United would include in the bargaining unit but whom the
Company would exclude on the ground that they are temporary
employees. , The crew consists of about 10 men and a foreman. The
-Company,and the United stipulated to exclude the foreman. The
Company is at the present time doing an unusual amount of pros-
pecting although ordinarily it may go from 3 to.5 years without
doing any. The crew was hired for an indeterminate period and
thus far has worked steadily for about a year except for 1 month.
When the prospecting is completed they will be released. The Com-
pany was extremely indefinite as to when the employment will termi-
nate. The work is manual labor; no particular skill is required.
,Although the tenure of the prospectors' employment is temporary,
-their work has not yet terminated and they have not been perma-
'nently laid off. They will therefore be included in the bargaining
unit.
We shall also exclude from the unit requested by the United the
foreman of the track-repair crew.
We shall direct that separate elections. be held : (1) among the
firemen and enginemen employed on the Company's railroad , includ-
ing Pierce, but excluding other flagmen and the track-repair foreman
,and crew, to determine whether they desire to be represented by the
Brotherhood o-r by the United for the purposes of collective bargain-
ing, or by neither; and (2) among all the Company's employees, in-
cluding sample men, the construction-department working foreman
(McCauley), the mechanical-department working foreman (Collier),
dragline operators, and prospectors, but excluding managerial, cleri-
,cal and supervisory employees,- the firemen and enginemen and flag-
,man Pierce; the Works manager, the sales force, commissary and
filling station employees, chemists, the chief electrician, the mining
-engineer, horticulturists, foremen in the rock-dryer plant, the con-
struction foreman, the master' mechanic, the assistant master mechanic,
the'mme superintendent, the assistant mine superintendent, the chief
supervisor of the flotation plant, the prospector foreman, the track-
repair crew foreman, the supervi-sons in the fertilizer plant (Denham;
Wright; and Manley), the assistant foreman of the construction de-
partment (Yarborough), the mine-pit foremen (Lurid and Drawdy),
-and the flotation-plant shift foremen, to determine whether or not
they desire to be represented by the United for the purposes of'col=
lective bargaining. Upon the results of these elections will depend
,the appropriate unit or units. If the majority in each group select
the United they will together constitute a single appropriate unit.
.If they choose' different representatives they, will constitute separate
appropriate units. -
SWIFT & COMPANY 939
VI. THE DETERMINATION OF REPRESENTATIVES
The Brotherhood requested certification on the record , or, in the
alternative , an election among the firemen and enginemen . We-find
that the questions concerning representation which have arisen can
best be resolved by elections by secret ballot.
We shall direct that the employees of the Company eligible to vote
in the elections shall be those heretofore indicated who were employed
during the pay-roll period immediately preceding the date of this
Direction of Elections , subject to such limitations and additions as
are set forth in the Direction hereinafter.
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
Questions affecting commerce have arisen concerning the represen-
tation of employees of Swift & Company, Fertilizer Works, Bartow,
Florida, within the meaning of Section 9 ( c) and Section 2 (6) and
(7) of the Act.
DIRECTION OF ELECTIONS
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, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Swift &, Company, Fertilizer Works, Bartow, Florida, elections
by secret ballot shall be conducted as early as possible but not later
than thirty ( 30) days from the date of this Direction of Elections,
under the direction and supervision of the Regional Director for the
Tenth 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 the following :
1. Firemen and enginemen on the Company 's railroad who were
employed during the pay-roll period immediately preceding the date
of this Direction of Elections , including the flagman Pierce and also
including employees who did not work during such pay-roll period
because they were ill, or on vacation or in the active military service
or training of the United States, or temporarily laid off ; but ex-
cluding other flagmen, the track-repair foreman and crew, and those
employees who have since quit or been discharged for cause , to deter-
940 DECISIONS OF NATIONAL LABOR • RELATIONS BOARD
mine whether they desire to be represented by the Brotherhood of
Locomotive Firemen and Enginemen, Lakeland Lodge No. 823, or
by United Phosphate Workers' Local Union No. 22685, affiliated with
the American Federation of Labor, for the purposes of collective
bargaining, or by neither.
2. Among all employees of the Company who were employed dur-
ing the pay-roll period immediately preceding the date of this Di-
rection of Elections, including sample men, the construction-depart-
ment working foreman (McCauley), the mechanical-department
working foreman (Collier), dragline operators, and prospectors, and
also including employees who did not work during such pay-roll
period because they were ill, or on vacation or in the active military
service or training of the United States, or temporarily laid off, but
excluding managerial, clerical, and supervisory employees, firemen
and enginemen and the flagman Pierce, the Works manager, the sales
force, commissary,and filling station employees, chemists, the chief
electrician, the mining engineer, horticulturists, foremen in the rock-
dryer plant, the construction foreman, the master mechanic, the as-
sistant master mechanic, the mine superintendent, the assistant mine
superintendent, the chief supervisor of the flotation plant, the pros-
pector foreman, the track-repair crew foreman, the supervisors in the
fertilizer plant (Denham, Wright, and Manley), the assistant fore-
man of the construction department (Yarborough), the mine-pit
foremen (Lund and Drawdy), the flotation-plant shift foremen, and
those employees who have since quit or been discharged for cause,
to determine whether or not they desire to be represented for the
purposes of collective bargaining by United Phosphate Workers'
Local Union No. 22685, affiliated with the American Federation of
Labor.