Wilson & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1946

68 N.L.R.B. 592 (N.L.R.B. 1946)

In the Matter of WILSON & CO., INC. (CHICAGO WHOLESALE MARKET)
and UNITED PACKINGHOUSE WORKERS OF AMERICA-CIO, ON BEHALF
OF LOCAL 25-A
In the Matter of WILSON & CO., INC . ( CHICAGO PLANT) and UNITED
PACKINGHOUSE WORKERS OF AMERICA-CIO, ON BEHALF OF LOCAL
25-C
Cases Nos 13-R-3350 and 13-R-3399, respectively.-
Decided June 13, 1946
Mr. J. L. Cockrill, of Chicago , Ill., for the Company.
Messrs Harvey Mader and Refugio Martinez , both of Chicago, Ill.,
for the Union.
Mr Melvin J. Welles, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon separate petitions duly filed by United Packinghouse Workers,
of America. CIO, herein called the Union, on behalf of Locals 25-A
and 25 -C, alleging that questions affecting commerce had arisen concern-
ing the representation of employees of Wilson & Co ., Inc., Chicago,
Illinois, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Ben-
jamin B . Salvaty , Jr. Trial Examiner . The hearing was held at Chicago,
Illinois , on April 18 , 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. All parties were
afforded opportunity to file briefs with the Board.
68 N L R B, No. 84.
592
WILSON & CO., INC. 593
The Company moved to dismiss the petition in Case No. 13-R-3350
on the ground that the unit petitioned for is not appropriate. For the
reasons stated in Section IV, infra, this motion is hereby denied.
The Company also moved to dismiss the petition in Case No. 13-R-
3399 on the grounds of inappropriateness of the unit and the ineligibility
of the clerks for membership in the Union. For the reasons stated in Sec-
tion IV, infra, this motion is hereby denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Wilson & Co., Inc., is a Delaware corporation with its principal offices
in Chicago, Illinois, It operates 8 packinghouse plants and about 90
branch houses throughout the United States. Only the Company's
Chicago Wholesale Market and its Chicago Plant are involved in the
present proceeding.
The Chicago Wholesale Market is a branch of the Company engaged
in the sale and distribution of meat and produce. It purchased, in the past
12 months, products of a value in excess of $500,000, of which more
than 50 percent was shipped to it from points outside the State of Illinois.
During the same period the Company's sales at the Chicago Wholesale
Market exceeded $500,000, approximately 71/2 percent of which repre-
sented products shipped to points outside the State of Illinois.
The Company's Chicago Plant is engaged in the purchase and slaughter
of livestock, and the processing, manufacturing, and distribution of
various meat products and by-products. During the past 12 months,
the Company's purchases for its Chicago Plant were in excess of
$1,000,000, of which approximately 50 percent was shipped to it from
points outside the State of Illinois. During the same period the Com-
pany's sales at its Chicago Plant exceeded $1,000,000, more than 50
percent of which represented products shipped to points outside the
State of Illinois.
The Company admits that its Chicago Plant is engaged in commerce
within the meaning of the Act, but makes no such admission concern-
ing its Chicago Wholesale Market. We find that the Company, both at
its Chicago Wholesale Market and at its Chicago Plant, is engaged in
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Packinghouse Workers of America is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to
membership employees of the Company.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE QUESTIONS CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of production and maintenance em-
ployees at its Chicago Wholesale Market, or of clerks and salaried
scalers at its Chicago Plant, until the Union has been certified by the
Board in appropriate units.
We find that questions affecting commerce have arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS
Case No. 13-R-3350
The Union seeks a unit of all production and maintenance employees,
excluding supervisory employees, salesmen, and junior salesmen, at the
Company's Chicago Wholesale Market. The Company agrees with the
Union that a unit of production and maintenance employees at the
Chicago Wholesale Market is appropriate but contends that the checkers,
scalers, shippings clerks, and receiving clerk should be excluded from
this or any other unit because they are confidential employees and rep-
resentatives of management, and their duties affect the industrial rela-
tions policies of the Company. If the Board does not accept this con-
tention, the Company would have these employees comprise a separate
unit from the production and maintenance employees. The Union, on
the other hand, desires that the checkers, scalers, shipping clerks, and
receiving clerk be included in the production and maintenance unit, and,
as an alternative, that they be established as a separate unit. The Com-
pany and the Union are agreed that supervisory employees should be
excluded from the unit of production and maintenance employees, but
differ with respect to the supervisory status of Hornburg, Wungluck, and
Adams. The Company would exclude, the Union include, these em-
ployees.
Checkers : The Chicago Wholesale Market employs three checkers,
who are salaried employees. They compare invoices with the products
received and shipped to ascertain the correctness of the loads, and oc-
casionally assist with the loading and unloading of the trucks. They work
on the loading and unloading platform with production and maintenance
employees, and are supervised by production foremen. They assist in
the taking of monthly inventories. The records of receipts and ship-
ments which they prepare are sent to the office manager and are con-
sidered confidential by the Company. But these records have no relation
to the Company's labor policies . Moreover, the checkers do not formu-
WILSON & CO., INC. 595
late or determine management policies, nor do they act in a confidential
capacity to persons who exercise managerial functions in the field of
labor relations. We do not believe, therefore, that the checkers are
confidential employees or representatives of management. Although their
work is primarily clerical, the checkers work with production and main-
tenance employees and are supervised by production foremen. Further-
more, they were included in the same unit with production and main-
tenance employees in previous recognition of the Union by the Company.'
We shall, therefore, include the checkers in the production and main-
tenance unit at the Chicago Wholesale Market found to be appropriate.2
Scalers: The Chicago Wholesale Market employs 7 scalers, all of
whom are salaried. They weigh incoming and outgoing products and
record weights on invoices and bills. They work at 14 different scales
located at various points on the production floor, and are supervised
by production foremen. They do not formulate or determine manage-
ment policies, nor do they act in a confidential capacity to persons who
exercise managerial functions in the field of labor relations. We cannot,
therefore, agree with the Company's contention that they are confidential
employees or representatives of management. Since the scalers work
with production and maintenance employees, are supervised by produc-
tion foremen, and have previously been included in the same unit with
production and maintenance employees,3 we shall include them in the pro-
duction and maintenance unit hereinafter found to be appropriate.
Shipping clerks : The Chicago Wholesale Market employs a shipping
clerk and an assistant shipping clerk, both of whom are salaried em-
ployees. They arrange loads on trucks for the most expeditious distribu-
tion. They work on the loading platform, with production and mainte-
nance employees, and have a small office on the production floor. They
are supervised by the plant superintendent, who supervises all production
and maintenance employees. Nothing in the record indicates any duties
which concern the formulation of management policies or which connect
these shipping clerks to persons exercising managerial functions in the
field of labor relations. Considering the close contact between the ship-
ping clerks and the production and maintenance employees, we shall
include them in the production and maintenance unit hereinafter found
to be appropriate.
Receiving clerk : The Chicago Wholesale Market employs one re-
ceiving clerk, who is a salaried employee. He checks load slips on in-
1 In 1942, the Company voluntarily recognized the Union as the representative of all pro-
duction and maintenance employees at its Chicago Wholesale Market , including checkers and
scalers, and excluding the manager , superintendent , foreman, truck drivers, office workers and
salesmen . The plant superintendent stated at the hearing that he did not know whether or not
the shipping clerks and the receiving clerk were included in the unit.
See Matter of Armour and Company, 66 N L R. B 324; Matter of Sylvania Industrial
Corporation, 61 N. L. R. B. 1585.
See footnote 2, supra.
696966-46-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coming merchandise and checks products for correct weight, number of
pieces, and proper condition. Although he maintains records of goods and
loads received, he is not concerned with the formulation of management
policies. He is supervised by the plant superintendent. Since his interests
lie with those of the production and maintenance employees, checkers,
and scalers , we shall include him in the unit hereinafter found to be
appropriate.
With regard to the three employees, Hornburg, Wungluck, and Adams,
who the Company contends are supervisors, we shall make the follow-
ing disposition :
Hornburg : He is classified as shipping-dock foreman. He is salaried,
as are the Company's other foremen, and reports directly to the super-
intendent. He has the authority to recommend effectively the hiring
or discharging of employees. We shall -exclude him from the unit as a
supervisory employee.
Wungluck: He is classified as a roustabout foreman, and is a salaried
employee. He normally supervises the laborers in storing the various
meat products4 and can effectively recommend the hiring or discharging
of employees . We shall exclude him from the unit as a supervisory
employee.
Adams : He is a salaried employee who works in the produce depart-
ment, and reports to the manager of that department. His job consists
of tagging produce items for shipment and directing laborers in placing
the items on the trucks for delivery. He occasionally helps the laborers
load the trucks. Since he has the authority to recommend the hiring
or discharging of employees and such recommendations have been made
and followed, we shall exclude him from the unit as a supervisory em-
ployee.
Accordingly, we find that all production and maintenance employees
at the Company's Chicago Wholesale Market,5 including checkers, scalers,
shipping clerks, and receiving clerk, but excluding salesmen, junior
salesmen, and all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action," constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4 Testimony adduced at the hearing reveals that the recent meat shortage has temporarily
left Wungluck without any supervisory duties, but that he normally has four to six employees
under him and will again have supervisory functions when the shortage ends.
3 Among the production and maintenance employees is one part-time employee, John Doners-
berger. He is regularly employed, works 24 or 25 hours per week, and works the same hours
each day. He is entitled to representation for the purposes of collective bargaining and is to be
deemed as included in the unit, despite the agreement of the parties to the contrary. See
Matter of Norfolk Southern Bus Corporation, 60 N L. R B 630.
' Among those excluded as supervisory employees are the afore-mentioned Hornburg, Wung.
luck, and Adams.
WILSON & CO., INC.
Case No. 13-R-3399
597
The Union seeks a unit of plant clerks and salaried scalers7 at the
Company's Chicago Plant. The Company maintains that these employees
cannot form an appropriate unit for collective bargaining purposes
because of the alleged ineligibility of the plant clerks for membership in
the Union, and because of the confidential nature of the work of plant
clerks and scalers.
The Company employs approximately 147 plant clerks and salaried
scalers at its Chicago Plant, all of whom are salaried , and, therefore,
have longer vacations than production and maintenance employees,
who are hourly paid. They are also eligible for group insurance and hos-
pitalization and are paid when sick, unlike production and maintenance
employees.
Plant clerks: The Union disputes the Company's contention that the
clerks are ineligible for union membership. And, what is more important
under the Act, the Union is willing to represent them for collective bar-
gaining purposes. We consequently find no merit in the Company's
contention that the unit sought is inappropriate because plant clerks are
allegedly ineligible for membership in the Union.
The plant clerks record time and production figures . They keep time,
costs, and rates on each employee and take inventories. These records
go to the office. Within the category of plant clerk are departmental
clerks and general clerks.
The departmental clerks keep production and labor control sheets,
which show whether or not each department is operating profitably.
They also take inventories and report to the general clerks on production
yields, and keep track of product transfer sheets . Although the records
which departmental clerks keep concern productivity, these employees
do not help in the formulation or determination of management policies,
nor do they act in a confidential capacity to persons who exercise mana-
gerial functions in the field of labor relations . We do not, therefore,
consider them to be confidential employees or representatives of manage-
ment . We shall include the departmental clerks in the unit hereinafter
found appropriate.
7 Hourly paid scalers were included by stipulation in a production and maintenance unit at
the Chicago Plant found appropriate in Matter of Wilson & Co., Inc., 45 N. L. R. B 831.
Separate units of steady-time checkers and firemen at this plant have been held appropriate in
Matter of Wilson & Company, 61 N L R B 105, and Matter of Wilson & Co, Inc, 61
N L R. B. 617, respectively.
The unit herein sought by the Union is comprised of all production and maintenance clerks
and salaried scalers, including general and departmental clerks, clerks in the insulation,
mechanical, receiving . shipping, and coal house departments , and messengers and tube operators
in the shipping departments, excluding employees in the employment and time offices, chief
clerks, all other supervisory employees , and all other employees. The Company agrees if any
unit is found appropriate , that the composition of this proposed grouping is proper.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The general clerks accumulate and record the reports of the depart-
mental clerks. i hey train new departmental clerks and coordinate
between departmental and chief clerks. There is nothing in the record
to indicate that they help in the formulation or determination of man-
agement policies , nor do they act in a confidential capacity to persons
who exercise managerial functions in the field of labor relations. We
shall include the general clerks in the unit hereinafter found appropriate.
Other employees classified as clerks are messengers and tube station
attendants . All of these employees perform routine clerical and non-
clerical duties . They are not confidential employees or representatives
of management. We shall include them in the unit hereinafter found
appropriate.
Scalers : The Company employs both salaried and hourly paid scalers
at its Chicago Plant . We are concerned here only with the salaried
scalers. These employees scale and record weight of products entering
or leaving each department , and enter items on a rate sheet . They are,
as mentioned above, eligible for the extra benefits accruing to salaried
employees. The nature of their work is not such as to support the con-
tention that they are confidential employees or representatives of man-
agement , for they do not formulate or determine management policies,
nor do they act in a confidential capacity to persons who exercise man-
agerial functions in the field of labor relations . We shall include them
in the unit hereinafter found to be appropriate.
We find, accordingly , that all production and maintenance clerks and
salaried scalers at the Company's Chicago Plant, including general and
departmental clerks, clerks in the insulation , mechanical , receiving, ship-
ping and coal house departments , and messengers and tube operators in
the shipping departments , excluding employees in the employment and
time offices , chief clerks , all other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees , or effectively recommend such action , and all
other employees. constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
V THE DETERMINATION OF REPRESENTATIVES
We shall direct that the questions concerning representation which
have arisen be resolved by separate elections by secret ballot among the
employees in the appropriate units who were employed during the pay-
roll period immediately preceding the date of the Direction of Elections
herein, subject to the limitations and additions set forth in the Direction
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 Relations Act,
WILSON & CO., INC. 599
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 representa-
tives for the purposes of collective bargaining with Wilson & Co., Inc.,
Chicago, Illinois, separate elections 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 Thirteenth 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 units
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 be-
cause they were ill or on vacation or temporarily laid off , and including
employees in the armed forces of the United States who present them-
selves in person at the polls, but excluding those employees who have
since quit or been discharged for cause and have not been rehired or re-
instated prior to the date of the elections , to determine whether or not
the employees in the unit found appropriate in Case No . 13-R-3350
desire to be represented by United Packinghouse Workers of America,
CIO, Local 25-A, for the purposes of collective bargaining ; and to
,I;irrmine whether or not the employees in the unit found appropriate
in Case No. 13-R-3399 desire to be represented by United Packinghouse
Workers of America, CIO, Local 25-C, for the purposes of collective
bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Elections.