Wichita Union Stockyards Co.

National Labor Relations Board - Board Decisions

Apr 9, 1942

40 N.L.R.B. 369 (N.L.R.B. 1942)

In the Matter Of WICHITA UNION STOCKYARDS COMPANY and PACKING-
HOUSE WORKERS ORGANIZING COMMITTEE, LocAI, No. 94, AFFILIATED
WITH C. I. O.
Case No. R-3579.-Decided April 9, 1942
Jurisdiction : stockyards industry. -
Investigation and Certification of Representatives : existence of question : refusal
to negotiate with petitioner because of contract with another union; amended
three-year contract in effect for more than a year held to be no bar; election
necessary.
Unit Appropriate for Collective Bargaining : all employees of the Company at its
yards in Wichita, Kansas, excluding supervisory and clerical employees, a
special officer, and a special night watchman with a deputy sheriff's commission.
Mr. Paul R. Kitch, of Wichita, Kans., for the Company.
Mr. Ralph Baker, of Kansas City, Mo., and Mr. J. R. Wheeler, of
Wichita, Kans., for the C. I. O.
Mr. Raymond S. Brennan, of Kansas City, Mo., and Mr. Earl
Warner, of Wichita, Kans., for the A. F..of L.
Mr. Fred A. Dewey, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 9,4942, Packinghouse Workers Organizing Committee,
Local No. 94, affiliated with C. I. 0., herein called the C. I. 0., filed
with the Regional Director for the Seventeenth Region (Kansas City,
Missouri) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Wichita Union
Stockyards Company, Wichita, Kansas, 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 February 10, 1942, the National Labor
Relations Board, herein called the Board, acting pursuant to Section
9 (c) of the Act, and Article III, Section 3, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, ordered an
investigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
40 N. L. R. B., No. 60.
369
455771-42-vol. 40--24
-370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 16, 1942, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
C. I. 0., and Amalgamated Meat Cutters and Butcher Workmen of
North America, affiliated with the A. F. of L., herein called the A. F.
of L., a Labor organization claiming to represent employees directly
affected by the investigation. Pursuant to notice, a hearing was held
on February 26, 1942, before Clarence D. Musser, the Trial Examiner
duly designated by the Chief Trial Examiner. The Company, the
C. I. 0., and the A. F. of L. appeared by their attorneys or repre-
sentatives and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence 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 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 considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Wichita Union Stockyards Company, a Kansas corporation with
its principal office and place of business in Wichita, Kansas, is en-
gaged in the business of maintaining a general stockyards service.
During the year 1941, the Company received approximately 900,500
head of livestock at its yards, of which approximately 22 percent
was received from points outside the State of Kansas. During the
same year, approximately 269,000 head of livestock were driven from
the yards and 96,000 were shipped via railroads. Approximately 15
percent of the outgoing livestock was sent to points outside of the
State of Kansas. It was stipulated by all parties that the Company
is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Packinghouse Workers Organizing Committee, Local No. 94, af-
filiated with the C. I. 0., and Amalgamated Meat Cutters and
Butcher Workmen of North America, affiliated with the A. F. of L.,,
are labor organizations admitting to membership employees of the
Company.
WICHITA UNION STOCKYARDS COMPANY
III: THE QUESTION` CONCERNING REPRESENTATION
371
Pursuant to the result of a consent election- held on September 7,
1939, the Company, recognized the A. F. of L. as bargaining repre-'
sentative •of its employees. On October 27, 1939, a contract was
entered into by the Company and the A. F. of L. This contract
expired -under its own terms on October 27, 1940. On February 7,
1941, the Company and the A. F. of L.. entered into a second contract.
This contract covered -a period of 3 years, and contained a provision
that it could be reopened for further negotiations by either, party on
the question of wages only, by -serving a written notice on the
other party at least 30 days before the expiration of either -the first
or second contract year, in the event that there should be a change in
the necessary living expenses of the employees or an unexpected
change in business conditions.
-In November 1941, the C. I. O. began to receive applications for
membership from some of the employees of the Company- as a result
of which organizational activities were begun by the •C. I. O. - On
or about November 21, 1941, while the organizational activities of
the C. I. O. were in progress, an A. F. of -L. representative ap-
proached the Company asking to reopen negotiations under - the
existing contract without waiting until the termination of the year.
The Company consented and negotiations began,about December 1,
1941. On December 19, 1941, the terms of a supplemental agree-
ment were determined and the agreement was reduced to writing and
signed on December 26, 1941. This- agreement, bearing the heading
"Supplemental Agreement to Agreement of February 7, 1941," after
reciting that the parties desired to make certain- changes' in the con-
tract of February, 7, 1941, contained a provision raising the wages of
all employees, except certain supervisory employees, 4. cents per
hour. It also contained a closed-shop -agreement covering the em-
ployees who received the wage increase and further provided that
all terms of the contract of February 7, 1941, should continue in
effect except as changed by the supplemental agreement. It- con-
cluded with a provision eliminating the right of either party to
open the agreement of February 7, 1941, for further negotiations
prior to February 7, 1943, the end of the second calendar year under
the agreement. -
'On December 23, 1941, just prior to the execution of the A. F. of L.
contract, the C. I. O. wrote a letter to the Company which was
received by the Company on December 27, 1941, notifying the Coin-
pany that it represented a majority of the Company's employees
and' that it intended to seek certification at the proper time. The
Company did not respond to this letter.. Several days before writing
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this letter, J. R. Wheeler, president of the C. I. 0., had learned
that the Company and the A. F. of L. were discussing possible wage
adjustments but he did not know that an agreement had been reached.
At" the hearing the Company and the A. F. of L. each moved to
dismiss the petition on the ground that the contract of February 7,
1941, and the supplement thereto of December 26, 1941, constitute
a bar to this proceeding. - The Company contends in its brief that
the C. I. 0. may next assert its right to petition for an election
shortly before February 7, 1943, the next occasion for collective bar-
gaining negotiations under the existing contract as amended. The
letter written by the C. I. 0. notifying the Company of its claim
was received by the Company a little over 1 month in advance of
February 7, 1942, or just before the expiration of the period during
which the parties to the contract of February 7, 1941, might, under
the terms thereof, have opened it for negotiations as to wages.'
Were we to hold that the parties to a collective bargaining agree-
ment covering a period of several years could forestall a petition
for investigation and certification of representatives by entering
into a supplemental agreement modifying the contract in advance
of the date fixed therein for reopening negotiations, the right of the
employees to seek a change of representatives after the lapse of a
reasonable time might be defeated. So to hold would require of
employees, desiring to change representatives, acceleration of or-
ganizational activities so that they would be ready to assert a claim
of majority representation at any time the contracting parties might
elect to discuss modification of the existing agreement, thus leading
to disaffection and unrest under the existing agreement instead of
stabilized labor relations.
We have frequently held that a contract covering an unreasonable
length of time and which has been in effect for a year or more does
not constitute a bar to an investigation and certification of repre-
sentatives.2 At the date of the hearing, the- contract of February 7,
1941, as supplemented by the agreement of December 26, 1941, had
been in effect for more than a year and had almost 2 years to run.
We find, under the circumstances here present, that neither the con-
tract of February 7, 1941, nor the supplement thereto executed on
1 Cf. Mill B, Inc., Division of Irwin & Lyons Partners, d/b/a Irwin & Lyons and Inter-
national Wood Workers o f America, Local 116, C. I. 0, 40 N. L . R B 346 , Case No.
R-3208, opinion issued this day.
z Matter of Metro-Goldwyn-Mayer Studios , and Motion Picture Producers Assn, et al.
and Screen Writers' Guild, Inc, 7 N. L. R. B. 662 ; Matter of Columbia Broadcasting Sys-
tem, Inc. and American Communications Association, 8 N. L R. B. 508; Matter of M. & J.
Tracy, Inc and Inland Boatmen's Union, 12 N. L R B 936; Matter of The Riverside and
Fort Lee Ferry Company and United Marine Division, Local 333, I L. A, A F. of'L,
23 N. L R . B. 493; Matter of Rosedale Knitting Company and Rosedale Employees Asso-
ciation, 23 N. L It. B. 527.
WICHITA UNION STOCKYARDS COMPANY 373
December 26, 1941, constitutes a bar, to an investigation of repre-
sentatives . Accordingly the motions of the Company and the A. F.
of L. to dismiss the petition are hereby overruled.
A statement of the Field Examiner introduced in evidence at the
hearing shows that the C. I. O. represents a substantial number of
employees in the appropriate unit.3
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF TIIE 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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
Subject only to a controversy concerning whether Oscar Rich
should be included in or excluded from the bargaining unit,' the par-
ties stipulated the appropriateness of the unit hereinafter found.
Rich is a special night watchman with a deputy sheriff's commission
and is responsible directly to the officers of the Company., We find
that his duties are such that his interests are more closely related
to the ,interests of the management than to the interests of the em-
ployees included in the appropriate unit. We shall therefore exclude
him from the unit.
We find that all, employees of the Company at its yards in Wich-
ita, Kansas , including employees classified as yardmen, classes A,
B, C, and D, yardmen beginners, extra yardmen, janitors, construc-
tion men, foremen , and watchmen, but excluding all general foremen
3 There are 78 or 79 employees in the agreed unit, after deducting the exclusions. The
Field Examiner's statement concerning representation shows that the C. I. O. submitted
34 application cards, 24 being dated in November 1941, 5 in December 1941, and 5 in Jan-
uary 1942. The C. I. O. also submitted a statement signed by 24 individuals, dated No-
vember 29, 1941, which was as follows : "The undersigned workers at the Wichita, Kansas,
stockyards wish to affiliate with the Packinghouse Woikers Organizing Committee-Con-
gress of Industrial Organizations " In the opinion of the Field Examiner, all of the signa-
tures appeared to be genuine and original on both the cards and the petition. However,
there were 18 duplications and 5 names which did not appear on the Company's pay-roll
list, leaving a net of 35 signatures which appeared to be genuine and original, and to be
the names of employees on the Company's pay-roll list for the week of January 2-8, 1942.
One additional application card was offered in evidence at the hearing. It appeared to
the Trial Examiner to bear a genuine, original signature of an employee of the Company
whose name appeared on the same pay-roll list.
' The Company desired that Rich be excluded, the unions apparently sought his inclusion.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(including the construction foreman and janitor- foreman), superin-
tendents and assistant superintendents, office and clerical employees,
the employee classified as a special officer, and the watchman, Oscar
Rich, constitute a unit appropriate for the purposes of collective
bargaining. We further find that such a unit will insure to the
employees of the Company the full benefit of their right to self-
organization and to collective bargaining and otherwise will 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,an election by secret ballot. - All em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of
'Election, subject to the limitations and additions set forth in the
Direction, shall be eligible to vote in the election.
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 repre-
sentation of employees- of Wichita Union Stockyards Company, of
Wichita, Kansas, within the meaning of Section 9 (c) and Section
2 (6) and, (7) of the National Labor Relations Act. `
2. All employees of the Company at its yards in Wichita, Kansas,
including yardmen, classes A, B, C, and D, yardmen beginners, extra
yardmen, janitors, construction men, foremen, and watchmen, but
excluding general foremen (including the construction foreman and
janitor foreman), superintendents and assistant superintendents,
office and clerical employees, the employee classified as a special
officer, and the watchman, Oscar Rich, constitute a unit appropriate
for the purposes of collective, bargaining - within the meaning- of
Section 9 (b) of the National Labor Relations 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, 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 ordered by the Board
-to ascertain representatives for the purposes of collective bargaining
WICHITA UNION STOCKYARDS COMPANY , 375
with Wichita Union Stockyards Company, Wichita, Kansas, an elec-
tion 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 supervision 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, Section 9, of
said Rules and Regulations, among the employees of the Company
at its yards in Wichita, Kansas, who were employed during the pay-
roll period immediately preceding the date of this Direction of
Election, including yardmen, classes A, B, C, and D, yardmen be-
ginners, extra yardmen, janitors, construction men, foremen, watch-
men, and 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 exclud-
ing general foremen, the construction foreman, the janitor foreman,
superintendents, assistant superintendents, office and clerical em-
, ployees, the employee classified as a special officer, the watchman,
Oscar Rich, and employees who have since quit or been discharged
for cause, to determine whether they desire to be represented by
Packinghouse Workers Organizing Committee, Local 94, , affiliated
with the C. I. 0., or by -Amalgamated Meat Cutters and Butcher
Workmen of North America, affiliated with A. F. of L., for the
purpose of collective bargaining, or by neither.