The Cudahy Packing Co.

National Labor Relations Board - Board Decisions

May 22, 1941

32 N.L.R.B. 72 (N.L.R.B. 1941)

In the Matter of THE CUDAHY PACKING COMPANY and LOCAL' 55,
UNITED PACKINGHOUSE WORKERS OF AMERICA, OF PACKINGHOUSE
WORKERS ORGANIZING COMMITTEE , C. I. O.
Case No. R-49W
SUPPLEMENTAL DECISION
AND
'CERTIFICATION OF REPRESENTATIVES
May ^?2, 1941
On February 19, 1941, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Elections in the
above-entitled proceeding.' In its Decision and Direction of Elec-
tions, the Board provided that elections by secret ballot be conducted
(1) among all engineers, firemen, and helpers employed at the New-
port plant of The Cudahy Packing'Company, Newport, Minnesota,
and (2) among all production and maintenance employees at such
plant, with certain specified exclusions.
Pursuant to the Direction of Elections, elections by secret ballot
were conducted on March 12, 1941, under the direction and supervision
of the Regional Director for the Eighteenth Region (Minneapolis,
Minnesota). On March 14, 1941, the Regional Director, acting pur-
suant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 2, as amended, issued and duly served
upon the parties an Election Report on the ballot.
As to the balloting and its results, the Regional Director reported
as follows :
Engineers , Firemen, and Helpers
Total number of ballots cast---------------------------------- 15
Total number of votes counted-------------------------------- 14
Total number of ballots cast for International Union of Operating
Engineers , Local 36 (A. F . of L )---------------------------- 7
Total number of ballots cast for Local 55, United Packinghouse
Workers of America, of Packinghouse Workers Organizing
Committee ( C. I. O.)--------------------------------------- 7
Total number of ballots cast for neither of the above
organizations ---------------------------------------------- 0
1- 29 N L R. B. 830
32 N. L. R. B, No. 12.
72
THE CUDAHY PACKING COMPANY 73
Total number of blank ballots --------------------------------- 0
Total number of void ballots---------------------------------- 0
Total number of challenged ballots-- -------------------------- 1
Production and Maintenance
Total number of ballots cast--- -------------------------------' 814
Total number of votes counted------------------------------- 803
Total number of ballots cast for United Packinghouse Workers
of-America , of Packinghouse Workers Organizing Committee,
Local 55, ,C. I. 0----------------------------------r------- 710
Total number of ballots cast against above organization---_---- 93
Total number of blank ballots -------------------------------- 0
Total number of void ballots --------------------------------- 2
'Total number of challenged ballots-- ------------------------- 9^
The Regional Director reported in his Election Report that the
challenged ballot in the balloting among engineers, firemen, and help-
ers was that of R. H. Crickmer, the chief engineer. The Regional
Director stated that Local 55, United Packinghouse Workers of
America, of Packinghouse Workers Organizing Committee, herein
called the United, and the Company tok the position that Cricketer
was a supervisory employee, and thus ineligible to vote. Interna-
tional Union of Operating Engineers, Local No. 36, herein called the
Engineers, stated that inasmuch as supervisory employees were not
specifically excluded from the election conducted among engineers,
firemen, and helpers, Crickmer should be deemed eligible to vote. The
Regional Director made no recommendation in the Election Report
with respect to the disposition of Crickmer's ballot. On March 24,
1941, the United filed objections to the Election Report with the Re-
gional Director, , stating that it protested the Regional Director's
ruling with respect to Crickmer's ballot. On April 4, 1941, the Re-
gional Director issued a Report on Objections finding that the chal-
lenge to Crickmer's ballot should be overruled • and that his -vote
should be counted.
We have considered the facts surrounding the challenge to Crick-
mer's ballot, the United's Objections, and the Regional Director's
Report. thereon. The petition in this case was filed by the United,
and requested a unit composed of "production and maintenance em-
ployees . . . excluding executives, foremen, assistant foremen, straw-
bosses, [and] those employees having the right to hire or dis-
charge . . ." The Engineers intervened in the proceeding and re-
quested that part of the employees in the unit requested by the United,
namely, engineers, firemen, and helpers, be constituted a separate
appropriate unit. We provided for a separate election for the engi-
neers, firemen , and helpers, and stated that the determination of the
appropriate unit or units would depend on the outcome of the election.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties agree that Crickmer is a supervisory employee. Since the
Engineers asked for a unit composed of part of the unit requested by
the United, which excluded supervisory employees, A is clear that
supervisory employees were not included in the unit it proposed.
From another viewpoint, it is equally clear that had the United won
the election among the engineers, firemen, and helpers, as well as the
election among the production and maintenance employees, it would
have been certified as the exclusive representative of the employees in
the unit it petitioned for, which, as noted above, excluded supervisory
employees. Cricketer is such a. supervisory employee. Under the
circumstances, we hereby overrule the Regional Director's ruling on
the challenged ballot and find that the challenge to Crickmer's ballot
should be sustained.
Upon the basis of the entire record, the Board makes the following:
SUPPLEMENTAL FINDINGS OF FACT
I. TIIE APPROPRIATE UNIT
In its Decision and Direction of Elections, the Board made no final
determination as to the appropriate unit or units for the purposes
of collective bargaining pending the election to be held among the
engineers, firemen, and helpers. The Board stated that if such em-
ployees chose the same representatives as the employees in the indus-
trial unit they would together constitute a single appropriate unit,
but that if the two groups chose different representatives they would
then constitute separate appropriate units.
The results of the election conducted among the engineers, firemen,
and helpers show that no collective bargaining representative has
been selected by a majority of such employees. We shall not, there-
fore, certify any bargaining representative for such employees.
We find that all production and maintenance employees at the
Newport plant of the Company, including those employees receiving
salaries and the sanitation gang, but excluding executives, foremen,
assistant foremen, strawbosses, those employees having the authority
to hire or discharge, office and clerical employees, salary plant clerks,
draftsmen, watchmen, cafeteria employees, persons employed on
special construction projects, engineers, firemen, and helpers, consti-
tute a unit appropriate for the purposes 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.
II. TIIE DETERMINATION OF REPRESENTATIVES
We find that Local 55, United Packinghouse Workers of America.
of Packinghouse Workers Organizing Committee, C. I. 0., has been
THE CUDAHY PACKING COMPANY 75
designated and selected by a majority of'the employees in the above-
described industrial unit .as their representative for the purposes of
collective bargaining. It is, therefore, the* exclusive representative
of all employees in such unit for the purposes of collective bargain-
ing, and we will so certify.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
SUPPLEMENTAL CONCLUSIONS OF LAW
1. All production and maintenance employees at the Newport
plant of the Company, including those employees receiving salaries
and the sanitation gang, but excluding executives, foremen, assistant
foremen, strawbosses, those employees having the authority to hire
or discharge, office and clerical employees, salary plant clerks, drafts-
men, Watchmen, cafeteria employees, persons on special construction
projects, engineers, firemen, and helpers, constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the National Labor Relations Act.
2. Local 55, United Packinghouse Workers of America, of Packing-
house Workers Organizing Committee, C. I. 0., is the exclusive
representative of all the employees in the unit described in paragraph
1 above, for the purposes of collective bargaining, within the mean-
ing of Section 9 (a) of the National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8
and 9, of National Labor Relations Board Rules and Regulations-
Series 2, as amended,
IT IS HEREBY CERTIFIED that Local 55, United Packinghouse Workers
of America, of Packinghouse Workers Organizing Committee, C. 1. 0.,
has been designated and selected by a majority of all production
and maintenance employees at the Newport plant of The Cudahy
Packing Company, Newport, Minnesota, including those employees
receiving salaries and the sanitation gang, but excluding executives,
foremen, assistant foremen, strawbosses, those employees having the
authority to hire or discharge, office and clerical employees, salary
plant clerks, draftsmen, watchmen, cafeteria employees, persons em-
ployed on special construction projects, engineers, firemen, and
helpers, as their representative for the purpose of collective bargain-
ing, and that, pursuant to Section 9 (a) of the Act, Local 55, United
Packinghouse Workers of America, of Packinghouse Workers Or-
76 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD
ganizing :Committee, C. I. 0., is. the exclusive representative of all
such, employees for the purposes of collective bargaining in, respect
to rates of pay, wages, hours of, employment, and ,other 'conditions
of employment." - , . ' '
Mn. EDWIN, S. SMITH, dissenting in part :
I dissent from the majority holding that no bargaining repre-
sentative should be certified for the engineers, firemen, and helpers
at this time.
The petition in this proceeding was filed by the United, which
requested that an industrial unit, including engineers, firemen, and
helpers, be found appropriate for the purposes of. collective bar-
gaining. The Engineers intervened in the proceeding and asked'that
the engineers, 'firemen, and helpers be designated as a separate ap-
propriate unit. The majority of the Board, after considering the
evidence in support of the respective claims of United and the-
En-gineers, concluded' that the engineers, firemen, and helpers "could
thus function either as a separate unit or as part of a single industrial
unit." They stated further,
An election will be held among all engineers, firemen, and
helpers in the Newport plant of the Company to determine
whether they wish •to be represented by the United, by the En-
gineers, or by neither. On the results of this election will depend
the appropriate unit. If these employees select a bargaining rep-
resentative other than the representative selected by the em-
ployees in the plant-wide industrial unit, they will constitute a
separate and distinct appropriate unit. If they choose the same
'representative as the employees in the plant-wide industrial unit,
they will be 'merged into a single unit with such employees.
I dissented from the Board's determination in this respect, stating,
I see no justification for granting employees in the unit urged
by the Engineers the privilege of splitting themselves off from
the industrial unit in this case. They constitute employees in
one of many departments in an integrated` plant and there is a
complete absence, of any bargaining history between the En-
gineers and- the Company on behalf of these employees. , I think
the reasons expressed in my' dissenting opinion in the Allis:
Chalmers and subsequent cases are here applicable, and under
these circumstances I.consider that the unit urged by the United
is appropriate,and would so hold.
It, will be noted that the Board's Decision made no express pro-
bision for the disposition of the engineers, firemen; and helpers 'under
the circumstances here present, namely, where the election among
THE CUDAHY PACKING COMPANY 77
them, resulted in a tie vote. Nevertheless, the Board has proceeded
to split the engineers, firemen, and helpers off from the industrial
unit. It is with this action that I cannot agree. In my opinion the
solution of the matter is not warranted by the Board's statement of
the effect that it would accord to the results of the election among
the engineers, firemen, and helpers. Upon the basis of the Board's
statement, it is as logical, under the circumstances, to include the
engineers, firemen, and helpers in the industrial unit as to 'exclude
them. '
Since the Board must necessarily decide the question of what to
do with this group of employees if a representative of any, of the
employees is to be certified, it is apparent that the issue must be
resolved on the basis of factors other than express statements in
the Board's Decision.
' In its present Supplemental Decision a majority of the Board
has offered no reason for excluding the engineers, firemen; and helpers
from the industrial unit.2 I would include such employees- in the
industrial unit.' The separation of the•engineers, firemen, and helpers
from the remaining employees in the plant will weaken the bargain-
ing strength of the employees as a whole. Such a result is plainly
contrary to the purposes of the Act.' Second, the election among the
engineers, firemen, and helpers provided for by the Board in its
Decision and Direction of Elections is undemocratic in that it per-
mits a small group of employees to determine whether a complete
industrial unit or one from which a craft has been severed is most
appropriate to promote collective bargaining. "Permitting minori-
ties to set themselves off . . . succeeds in providing full self-deter-
mination for the minority but only at the expense of entirely
disregarding the interest of the majority." 4 Here, where the results
of the craft election are indecisive, the fact that a large majority of
all the employees desire an industrial unit, as evidenced by their
selection of United as their bargaining representative, should be
controlling in the determination of the appropriate unit. Third, the
exclusion of the engineers, firemen, and helpers from the industrial
2 The majority opinion merely states : "The results of the election conducted among the
engineers , firemen , and helpers show that no collective bargaining representative has been
selected by a majority of such employees. We shall not, therefore, certify any bargaining
representative for such employees " The foregoing , of course , explains why the Engineers
was not ceitified as the exclusive representatiie of the engineers, firemen, and helpers, but it
does not explain why such employees have been excluded from the industrial unit.
9 See my dissenting opinion in Matter of Allis -Chalmers Manufacturing Conrpanit and
International Union, United Automobile ll 'o, l,ers of America, Local 24x8 , 4 N. L. R. B 159,
175 This is in essence the reason for my dissent from the original decision in this case.
There is a complete absence of any bargaining history between the Engineers and the Com-
pany on behalf of these employees Cf. my concurring opinion in Matter of American
Iiardwate Corporation and United Electrical and Radio Workers of America , 4 N L. R. B
412, 422.
4 Ibid.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit at this time results in depriving them of collective bargaining,
although a substantial majority indicated a desire for collective bar-
gaining by voting for one or the other of the two labor organizations
involved. Such action, of course, does not effectuate the policies of
the Act. Moreover, the Board's Decision in this case provided for
the possible separation of the engineers, firemen, and helpers from
the industrial unit on the ground that such employees could "func-
tion either as a separate unit or as a part of a single industrial unit."
The Board's present action, however, will simply mean that the
engineers, firemen, and helpers will not "function" at all.
It appears to me, therefore, that where a union seeks an industrial
unit, including members of a craft, and the craft employees do not
vote themselves out of the industrial unit by designating the craft
union, they should then be considered a component part of the indus-
trial unit. The Board's decisions, in my opinion, should so expressly
provide in the future. Accordingly, I would, include the engineers,
firemen, and helpers in the industrial unit and certify the United
as the exclusive representative of the employees in such unit.