Swift & Co.

National Labor Relations Board - Board Decisions

Jun 25, 1942

41 N.L.R.B. 1251 (N.L.R.B. 1942)

In the Matter of SWIFT & COMPANY and INDEPENDENT MEAT PACKERS
ASSOCIATION (UNAFFILIATED)
Case No. R-36"74.Decided June 25, 1942
Jurisdiction : meat processing and distributing industry.
Investigation and Certification of Representatives : status of petitioner: upon
evidence received pursuant to notice on issue of whether petitioner was a suc-
cessor to a dominated organization previously ordered disestablished, Board
found that the evidence failed to establish that it was a continuation of the
organization previously ordered disestablished; existence of question: refusal to
accord petitioner recognition until certified by the Board; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees at one of Company's plants, exclusive of supervisory employees, office
workers, salesmen, truck drivers, watchmen, the matron, and the bricklayer.
Mr. George II. O'Brien, for the Board.
Mr. William, N. Straclc and Mr. John Staley, of Chicago, Ill., for
the Company.
Mr. M. Alfred Roenzi.^ch and Mr. M. L. Sammon, of Cleveland,
Ohio, for the Independent.
Mr. Charles P. Mayoh and Mr. Eugene Rich, of Cleveland, Ohio,
for the A. F. of L.
Mr. Fred A. Dewey, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TFIE CASE
Upon petition duly filed by Independent Meat Packers Association
(Unaffiliated), herein called the Independent, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Swift & Company, Cleveland, Ohio, herein called the
Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Earl S. Bellman, Trial
Examiner. Said hearing was held at Cleveland, Ohio, on March 24,
25, and 26, 1942. The Board, the Company, the Independent, and
Amalgamated Meat Cutters and Butcher Workmen of North America,
Local 495, A. F. of L., herein called the A. F. of L., appeared, par-
ticipated, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues. The Trial Examiner's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
41 N. L. R. B., No. 231.
1251
1252 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company, the Independent, and the A. F. of L. filed briefs
which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE, COMPANY
The Company is an Illinois corporation engaged in the processing,
sale, and distribution of meat and meat products. It operates a
plant in Cleveland, Ohio, and this proceeding concerns employees
at the Cleveland plant. During the fiscal year of 1941, beginning
on or about November 1, 1940, and ending on or, about October 31,E
1941, the Cleveland plant handled purchases of livestock aggregating
$8,990,372, of which approximately 16 percent was purchased at
points outside the State of Ohio. During the same period the Com-
pany purchased raw products in the amount of '$1,059,247 for use
in the Cleveland plant, of which approximately 90 percent was pur-
chased at points outside the State of Ohio. It also purchased'
processed products aggregating $3,829,572, and supplies aggre-
gating $461,718, of which 861/2 percent and 78 percent, respectively,
was purchased at points outside the State of Ohio. The sales of the
Cleveland plant during the same period aggregated $17,181,766, of
which 28 percent was distributed to points outside the State of Ohio.
The Company does not question the -jurisdiction of the Board.
H. THE ORGANIZATIONS INVOLVED
Independent Meat Packers Association (Unaffiliated), and Amalga-
mated Meat Cutters and Butcher Workmen of North America, Local
495, A. F. of L., are, labor organizations admitting to membership
employees of the Company. -
III. THE STATUS OF THE INDEPENDENT
The notice of hearing in this proceeding provided that evidence
be received on the issue of whether the Independent is a "successor
or continuation" of Independent Union of Swift & Company Em-
ployees of Cleveland, Ohio, a labor organization, herein called the
Old Independent. We turn first to a consideration of that issue.
The Old Independent was organized on May 7, 1937. On May 26,
1941, the A. F. of L. filed a charge with the Regional Director for
the Eighth Region alleging, inter alia, that the Company had fos-
tered and dominated the Old, Independent in Violation of Section
8 (2) of the National Labor Relations Act." Thereafter, on July 26,
1 Case No. VIII-C-1008.
SWIFT & COMPANY 1253
1941, a settlement agreement was executed by the- Company, the
A. F. of L., the Old Independent, and a representative of the Board
pursuant to which the charge filed by the A. F. of L. was dismissed.
The agreement provided for the following: (a) withdrawal of recog-
nition by the Company of the Old Independent; ' (b) an agreement
by the Company to refrain from dominating or interfering with any
labor organization or in any manner interfering with the rights of
its employees under Section 7 of -the Act; (c) an agreement by the
Company to post notices for a period of 60 days notifying the em-
ployees of withdrawal of recognition from and the disestablishment
of the Old Independent and of the Company's intention to comply
with the Act; (d) an agreement by the Company to notify the Re-
gional Director of the steps taken, and (e) an agreement that the
settlement agreement should not constitute a waiver of the right
to later file charges against the Company nor, constitute an admis-
sion or evidence that the Company had engaged in any unfair labor
practices. On July 28, 1941, the Company posted notices in com-
pliance with the settlement agreement and notified the Old Inde-
pendent that it was withdrawing recognition from that organization
and that the latter was disestablished as, bargaining representative of
1 he Company's employees. No claim has been made that the Com-
pany has not fully complied with the settlement agreement.
Shortly after the execution of the settlement agreement, a meeting
of employees of the Company was called by employee Charles
Sikorski, for the purpose of discussing the organization of a new
union and plans were made for an organization meeting to be held
2 days later. The organization meeting was held as planned and
resulted in the formation of the Independent and the election of
officers. The A. F. of L. contends that the Independent is a mere
continuation of the Old Independent under another name and that,
in view of the settlement agreement to which the Old Independent
was a party, it has no standing to file a petition for an investigation
and certification of representatives.
Although some of the officers and members of the Old Independent
participated in the formation of the new organization and some of
the officers in the Independent were active members in the Old Inde-
pendent, we find that the evidence fails to establish that the Inde-
pendent is a continuation of the Old Independent.
IV. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to recognize or negotiate with the
Independent unless and until it is certified by the Board. A
dispute exists between the Independent and the A. F. of L. as to
the appropriate unit. A statement prepared by an agent of the
1254 DECISIONS OF NATIONAL; LABOR RELATIONS BOARD
Regional Director and received in evidence at the hearing shows that
the Independent and the A. F. of L. each represents a substantial
number of employees in the appropriate unit.2
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 National Labor
Relations Act.
V. THE APPROPRIATE UNIT
The Independent and the Company contend that all production
and maintenance employees at the Company's Cleveland plant, ex-
cluding supervisory employees, office workers, salesmen, truck
drivers,3 watchmen, the matron, and the bricklayer,' constitute an
appropriate unit. The A. F. of L. agrees that the exclusions stated
above are proper but desires, in addition, that the employees in the
following occupations should be excluded : team loading, elevator
operators, mechanical department, refrigeration department, steam
department, garage department, cooperage department, plant sanita-
tion department, yard cleaning, and restaurant employees.
The A. F. of L. contends that since the employees which the Inde-
pendent and the Company. desire to include in the unit and which
the A. F. of L. desires to exclude are eligible to membership in
certain craft unions affiliated with the A. F. of L., and are not
eligible to membership in the A. F. of L. local here involved, they
should .be excluded from the unit. However, no craft union has
claimed the right to represent any of these employees. Moreover,
the A. F. of L. does not wish to participate in the event an election
is ordered in the present proceedings. Under these circumstances,
we are of the opinion that the determination of the appropriate unit
must rest upon other considerations.
The plant consists of 27 brick and concrete buildings with consid-
erable machinery located throughout the plant. The power plant,
in addition to supplying power for the entire plant, supplies the
plant with air, steam, hot water, and refrigeration, all of which are
essential to the operation of the plant. The operations of the plant
2 The statement shows that the Independent submitted 325 application cards, all of
which were undated . All of the cards appeared to bear genuine , original signatures and.
262 bear the names of persons whose names appear on the Company's pay roll for the
week ending November 1, 1941. The A. F. of L. presented 172 authorization cards, all
of which appeared to bear genuine, original signatures . Of these , 15'3 bear the names
of persons whose names appear on the above-mentioned pay roll and are dated as follows :
1 in March 1941; 93 in April 1'941, 36 in May 1941, 6 in June 1941, 9 in July 1941, 4 in
August 1941, 1 in September 1941, and 3 in October 1941. There are approximately 575
employees in the appropriate unit.
3 The truck drivers are now represented by Truck Drivers Union, Local No. 407, of the
International Brotherhood of Teamsters , Chauffeurs, Warehousemen , and Helpers of
America.
& The bricklayer' is represented by a Bricklayers Union.
SWIFT & COMPANY 1255
involve highly integrated and interrelated activities . In performing
the various operations , both manual power and machines of various
kinds are used. The manual and machine operations are closely
interlinked , and are frequently component parts of a continuous
process. The men who operate the machines work alongside the men
who perform only manual labor and many do both kinds of work.
The mechanics spend much of their time repairing and adjusting the
machines at the places where they are operated and where other em-
ployees are engaged in operating them or performing manual func-
tions closely related to their operation . There are a number of crafts
represented among the Company's employees , but the employees fre-
quently depart from strict craft lines in the performance of their duties.
Under the circumstances here present , we find that all production
and maintenance employees at the Company 's Cleveland plant, ex-
clusive of supervisory employees , office workers , salesmen , truck driv-
ers, watchmen , the matron , and the bricklayer , constitute a unit
appropriate for the purposes of collective bargaining , within the
meaning of Section 9 (b) of the Act.
VI. 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. of L. does not wish to participate in an election and will not
be included on the ballot. We shall direct that the employees in the
appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction,
shall be eligible to vote.
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, 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
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Swift & Company,
Cleveland, Ohio, an election by secret ballot shall be conducted as
early as possible but not later than thirty ( 30) days from the date
of this Direction of Election, under the direction and supervision
of the Regional Director for the Eighth 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
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
employees, in the unit found appropriate in Section IT, above, and who
were employed by the, Company during the pay-roll period immedi-
ately preceding the date, of this Direction, 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 were then or have since been temporarily laid off, but
excluding those who have since quit or been discharged for cause, to
determine whether or not they desire to be represented by Indepen-
dent Meat Packers Association (Unaffiliated) for the purposes of
collective bargaining.