Union Stock Yards Co. of Omaha (Ltd.)

National Labor Relations Board - Board Decisions

Jun 20, 1946

68 N.L.R.B. 770 (N.L.R.B. 1946)

In the Matter of UNION STOCK YARDS COMPANY OF OMAHA ( LTD.) and
UNITED FOREMEN 'S LOCAL INDUSTRIAL UNION No . 1464, C. I. O.
Case No. 17-R-1282.-Decided June 20, 1946
Kennedy, Holland, DeLacy, and Svoboda, by Messrs. Ralph E.
Svoboda and Harry R. Henatsch, both of Omaha, Nebr., and E. R.
Handy, of Omaha, Nebr., for the Company.
Messrs. J. H. Stocker, Earl Graham, Rudolph Corneer, and B. A.
McCarten, all of Omaha, Nebr., for the Union.
John H. Wood, Jr, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Foremen's Local Industrial Union
No. 1464, C. I. 0., herein called the Union, alleging that a question affect-
ing commerce had arisen concerning the representation of employees of
the Union Stock Yards Company of Omaha (Ltd.), Omaha, Nebraska,
herein called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Harry L. Browne,
Trial Examiner. The hearing was held at Omaha, Nebraska, on April
17, 1946. The Company and the Union' appeared and participated. All
parties 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. The request of the Company for oral
argument before the Board is hereby denied. All parties were afforded
opportunity to file briefs with the Board.
IInternational Union of Operating Engineers (A. F. L.) was served with notice of the
hearing but did not appear.
68 N L R B, No 103.
770
UNION STOCK YARDS COMPANY OF OMAHA (LTD.)
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
771
Union Stock Yards Company of Omaha (Ltd.) is a Nebraska cor-
poration engaged in a general stock yards service at its place of business
in Omaha, Nebraska. The Company does not buy and sell livestock ; it
provides facilities for weighing, exhibiting, and caring for livestock pend-
ing sale. During the year 1945, the Company received about 5,708,000
head of livestock at its yards, approximately 50 percent of which came
from points outside the State of Nebraska. During the same year 50
percent of the approximately 1,600,000 head of livestock shipped from
the Company's yards, were destined for points outside the State.
The Company admits, and we find, that it is engaged in business affect-
ing commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Foremen's Local Industrial Union No. 1464, affiliated with the
Congress of Industrial Organizations, is a labor organization, admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the ex-
clusive bargaining representative of its divisional foremen and super-
visors2 until the Union has been certified by the Board in an appropriate
unit.
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks a unit consisting of all divisional foremen and super-
visors, including the timekeeper , storekeeper , and foremen of the boiler
room, but excluding the assistant engineer , assistant general yardmasters,
the general yardmaster , the assistant building superintendent , and heads
of the purchasing and personnel departments . The Company contends that
' The terms, foreman and supervisor, are used interchangeably by the parties i n referring
to some of the employees in the unit sought.
696966-46-50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no unit of supervisory employees would be appropriate because its fore-
men and supervisors are not employees under the Act, but are company
representatives having, in addition to the power to effect changes in the
status of rank and file employees, the responsibility of formulating com-
pany policies and maintaining an efficient supply of services in the various
departments. However, if the Board decides that some unit of its foremen
and supervisors is appropriate, the Company contends that only a unit
comprising all its foremen and supervisors, including those the Union
seeks to exclude, would be appropriate.
Recent decisions3 of the Board have clearly established that foremen
and other supervisors are employees within the meaning of the Act
and, as such, are entitled to exercise their right to bargain collectively
regardless of the kind of industry in which they are employed. In the
instant case, the record does not support the Company's contention that
the foremen and supervisors in the unit sought by the Union participate
in the formulation of company policies in addition to their other super-
visory functions. The occasional meetings with divisional foremen and
supervisors which have been held by the Company's top management
have clearly been for the purpose of obtaining and disseminating infor-
mation about company operating problems. The actual formulation of new
policies has usually occurred outside these meetings, and has been the
responsibility of the president, vice president and general manager, gen-
eral superintendent, and others who are not included in the units alleged
to be appropriate by either the Company or the Union. Although, as
urged by the Company, the divisional foremen and supervisors are respon-
sible for the efficient operation of their respective departments as the basis
of good relations with the Company's patrons, the sellers of the livestock,
it is clear that this is a normal function of supervisory employees in a
service industry. In the L. A Young4 and following cases,5 the Board
considered the question of the degree of discretionary authority and
responsibility exercised by foremen, and held that these factors "are
relevant only insofar as they bear on the question of proper grouping for
collective bargaining purposes . . . but they cannot be criterion in de-
termining whether this Board's facilities should be made available to
foremen." Therefore, we find no merit in the Company's contention that
the Act does not warrant entertaining the petition before us.
The unit alleged by the Union to be appropriate consists in general of
the lowest level of supervision, viz, divisional foremen and supervisors.
3 Matter of Jones & Laughlin Steel Corporation , Vesta-Shannopin Coal Division , 66 N. L. R B.
386; Matter of L. A . Young Spring & Wire Corporation, 65 N. L. R. B. 298.
4 Matter of L. A Young Spring & Wire Corporation, supra
Matter of The B. F. Goodrich Company, 65 N. L. R B. 294; Matter of Westinghouse Electric
Corporation (East Springfield Works), 66 N. L. R. B. 1297; Matter of The Baldwin Locomotive
Works, 67 N. L. R. B. 1287.
UNION STOCK YARDS COMPANY OF OMAHA (LTD.) 773
These employees supervise the majority of the Company's rank and file
operating and maintenance employees, who are represented by the United
Packinghouse Workers of America, Local 155 (C. I. 0.), hereinafter
called the UPWA. In addition to occupying similar positions in the
Company's supervisory hierarchy, the divisional foremen and supervisors
sought by the Union receive equal salaries with a single, minor exception,
and have substantially the same rights, duties, responsibilities and
authority with regard to the rank and file employees whom they super-
vise. It is therefore clear that the Company's divisional foremen and
supervisors constitute a homogeneous grouping of employees who may
function together for collective bargaining purposes.
There is no dispute between the parties as to the inclusion in such a
unit of the foremen or supervisors of the yard construction and main-
tenance department, cattle yard "C" division, cattle yard Hill division,
hog yard, sheep barn, horse and mule barn, hay barn, grain department,
west chute motor truck division, east chute motor truck division, night
division, and the dehydrating departments Accordingly, we shall in-
clude them.
The parties were also in agreement as to the inclusion of the following
supervisory positions in a unit of divisional foremen and supervisors if
the Board determines their inclusion to be appropriate :
Timekeeper: This employee is in charge of daily time slips and pay-
period reports, and is engaged principally in clerical work. The one
employee under his supervision has been excluded from the rank and file
bargaining unit. In view of the clerical nature of the timekeeper's work,
and the exclusion of his subordinate from the rank and file unit, we shall
exclude him from the unit of foremen and supervisors.
Storekeeper : The storekeeper receives, disburses, and keeps accounts
of the materials and supplies used by the Company. He has no subordi-
nates. Although his work is closely related to that of the other operating
and maintenance divisions of the Company, we shall exclude the store-
keeper because he has no employees under his supervision.
Fire and police department supervisor. This employee supervises the
work of six employees who comprise the department. These six plant-
protection employees, who apparently are not deputized and are not
monitorial in their relation to other employees, have been included in the
rank and file bargaining unit since its establishment more than 4 years
ago and have been represented by the UPWA during that time. In view
of all these circumstances, including the bargaining history and the agree-
I the time of the hearing this department was still under construction. A former rank
and file employee had been selected as foreman of the new department and was then spending
half of his time supervising its installation . The Company stated that it expected the new
department to begin operation within 30 days of the hearing
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of the parties, we shall include the fire and police department
supervisor.
Boiler room supervisor: The boiler room supervisor is responsible for
the operation of the steam power plant in the Company's office building,
and supervises the work of three firemen. As the result of an election held
pursuant to an Agreement for Consent Election dated October 9, 1941,
the firemen in the boiler room selected as their bargaining representative
the International Union of Operating Engineers (A. F. L.), while the
other rank and file employees chose the UPWA. However, for 2 or 3
years, the former labor organization has been entirely inactive at the
Company's operations, and the firemen have not sought representation
nor been represented by any union during this period. The boiler room
supervisor occupies a position in the Company's supervisory force
equivalent to that of the lowest level of foremen and supervisors in charge
of rank and file employees and receives the same salary. Because of his
community of interest with the other foremen and supervisors, and in
view of these other circumstances, we shall include him.7
The inclusion of the following classifications in the appropriate unit is
disputed by the parties, the Company seeking their inclusion over the
objections of the Union which has not extended its organization to these
employees :
Assistant engineer: This employee is in direct charge of construction
work for the Company. He visits the yards to supervise the carrying out
of plans agreed upon by his superior, the chief engineer, and the vice
president and general manager. The assistant engineer also spends some
time in the actual drafting of such plans. His subordinate is the yard
construction maintenance supervisor. This employee who earns less than
the assistant engineer, is in charge of the rank and file employees of the
department and is on the same supervisory level as those heretofore in-
cluded in the unit. Although many of the conditions of employment appli-
cable to the yard construction maintenance supervisor are also applicable
to the assistant engineer, the latter's higher salary, the nature of his work
and its proximity to that of the top officials whom neither party seeks
to include, indicate that he has little community of interests with the
foremen and supervisors sought by the Union. We shall therefore ex-
clude him.
General yardmaster and two assistant general yardmasters: These 3
employees share almost equally the major responsibility of directing and
coordinating the activities of the Company's various operating divisions
7 See Matter of The Midland Steel Products Company, Parish & Bingham Division, 65
N. L. R. B. 997, where the chief of the plant-protection department , the only supervisory
plant-protection employee , was included in a unit of production and maintenance foremen
although the guards were organized in a unit separate from rank and file production and
maintenance employees.
UNION STOCK YARDS COMPANY OF OMAHA (LTD.) 775
and of utilizing advantageously a general labor force in the loading, un-
loading and weighing of shipments of livestock, hay, grain, and other
materials which constitute the main activities of the stockyards. The
direction of the rank and file employees on any particular job is primarily
the responsibility of the yardmasters. Either the general yardmaster or
an assistant general yardmaster acts as the representative of the Company
in handling grievances which the divisional foremen or supervisors have
failed to settle at the first step of the grievance procedure. The 3 yard-
masters work closely with, and are directly responsible to, the general
superintendent and are paid more than the divisional foremen and super-
visors whose authority is limited to their respective departments. We
believe that the general yardmaster and the 2 assistant general yard-
masters have powers, duties, and responsibilities above those of divisional
foremen and supervisors, and we shall exclude them from the unit.
Assistant building superintendent: This employee is in charge of the
Company's office building in which more than 50 livestock commission
firms have office space. He is responsible for the proper functioning of
the building's power house, its janitorial and elevator services, and the
other facilities of the building such as the cigar counter, bar room and
restaurant. The rank and file janitors and elevator operators and building
maintenance employees supervised by him are represented by the UPWA
in the same unit with rank and file production and maintenance em-
ployees, but the restaurant and other employees are unrepresented. The
assistant building superintendent is also charged with the supervision of
all major or unusual electrical problems of the Company either in the
office building or elsewhere ; he takes no part, however, in ordinary
electrical repair and maintenance work in the stockyards. He is respon-
sible directly to the building superintendent whom neither party seeks to
include in the unit, and is paid more than the boiler room foreman whom
he supervises. Accordingly because the assistant building superintendent
has interests which are very closely allied with those of the building
superintendent, and occupies a position in the supervisory hierarchy defi-
nitely higher than that of the lower level of foremen whom the Union
seeks to represent, we shall exclude him.
Personnel supervisor: The employee who heads the personnel depart-
ment interviews all applicants for jobs, keeps personnel records, and
handles safety matters. He selects new employees from among the appli-
cants subject to the approval of the foreman or supervisor to whom they
are assigned. He also frequently attends grievance meetings at the
second and third steps of the grievance procedure, although on these
occasions the decision of the Company is made by the general superin-
tendent or vice president and general manager. There are no other
employees in the personnel department. In view of his position in the
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
managerial hierarchy and the absence of subordinate employees, we
shall exclude the head of the personnel department from the unit.
We find that all divisional foremen and supervisors of the Company,
including the foremen or supervisors of the yard construction and main-
tenance department, cattle yard "C" division, cattle yard Hill division,
hog yard , sheep barn , horse and mule barn, hay barn, grain department,
west chute motor truck division, east chute motor truck division, night
division, and dehydrating department, the boiler room, supervisor, and
fire and police department supervisor but excluding the timekeeper,
storekeeper, general yardmaster, assistant general yardmasters, assistant
engineer, assistant building superintendent , heads of the purchasing and
personnel departments, and all or any other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (c) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employee:
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein, sub-
ject to the limitations and additions set forth in the Direction.
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 Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with Union Stock Yards
Company of Omaha (Ltd.), Omaha, Nebraska, 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, under the direction and super-
vision of the Regional Director for the Seventeenth Region, acting in
this matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations, among
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work during
said pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
UNION STOCK YARDS COMPANY OF OMAHA (LTD.) 777
States who present themselves in person at the polls, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, to de-
termine whether or not they desire to be represented by United Fore-
men's Local Industrial Union No. 1464, C. I. 0., for the purposes of
collective bargaining.
MR. GERARD D. REILLY, dissenting:
For the reasons stated in my dissenting opinions in Matter of Packard
Motor Car Company, 61 N. L. R B. 4, and Matter of Jones & Laughlin
Steel Corporation, 66 N. L. R. B. 386, I am constrained to dissent
from the majority opinion in this case.