Armour and Co.

National Labor Relations Board - Board Decisions

Apr 9, 1940

22 N.L.R.B. 818 (N.L.R.B. 1940)

In the Matter of ARMOUR AND COMPANY and UNITED PACKING HOUSE
WORKERS INDUSTRIAL UNION, LOCAL 153, AFFILIATED WITH C. I. O.
In the Matter of ARMOUR AND COMPANY and UNITED PACKING HOUSE
WORKERS LOCAL INDUSTRIAL UNION No. 153, THROUGH PACKING
HOUSE WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH C. I. O.
Cases Nos. C-661 and R-1309, respectively
SECOND SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
April 9, 1940
On August 15, 1939, the National Labor Relations Board, herein
called the Board, issued its Decision, Order, and Direction of Elec-
tion 1 in the above-entitled cases. On August 19, 1939, the Board
issued an Amendment to Direction of Election 2 providing for the
holding of an election within 15 days from the date of the Amendment
to Direction of Election, among the employees of Armour and Com-
pany, Omaha, Nebraska, herein called the Company, in the appro-
priate unit set forth therein. On August 28, 1939, International
Association of Machinists, on behalf of Lodge 31, International As-
sociation of Machinists, herein called the I. A. M., filed a petition for
intervention, alleging that the machinists, machine erectors, and
maintenance employees of the Company constituted an appropriate
unit, that these employees had been members of the I. A. M. for many
years and desired to be represented by it, that they should not be
included in the unit set forth in the Amendment to Direction of
Election, and that the I. A. M. had not previously intervened in the
proceedings because it had been represented to the I. A. M. by the
United that the latter organization would not seek to include the
above employees in the bargaining unit. Ou August 29, 1939, the
Board notified the Acting Regional Director for the Seventeenth
Region that the Board would not pass upon the petition of the I. A. M.
until further proceedings were had, that the `employees in the unit
claimed by the I. A. M. should-be given the opportunity to vote for
114 N. L. R. B. 682.
214 N. L. R B. 703
22 N. L. R. B., No. 55.
818
ARMOUR AND COMPANY 819
the I. A. M. if they so desired, and that the ballots cast by such em-
ployees should be segregated and not counted until after a determina-
tion by the Board of the issues raised in the I. A. M.'s petition: On
August 30, 1939, prior to the election, the I. A. M. informed the Act-
ing Regional Director that it waived all claims to represent any ma-
chinists, machine erectors, and maintenance employees other than
those classified as machinists. Pursuant to the Direction of Elec-
tion, as amended, and the supplemental instructions to the Acting
Regional Director, an election by secret ballot was conducted on
August 30, 1939, under the direction and supervision of the Acting
Regional Director.
On October 3, 1939, the Board issued a Supplemental Decision
and Certification of Representatives 3 in which it certified Local
Union No. 8, United Packinghouse Workers of America, of the Pack-
inghouse Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, herein called the United, as the exclusive
bargaining representative of the production and maintenance em-
ployees.4 After reciting the above facts, the Board stated in the
Supplemental Decision :
We are unable at this time to decide the issues raised by the
petition of the I. A. M. for intervention but shall direct that
an additional hearing be held at which the parties may adduce
evidence with regard to whether the machinists should be estab-
lished as a separate unit or included in the larger unit. We do
not think, however, that the Board should withhold the benefits
of collective bargaining from the other employees pending a
determination of this issue. We shall, therefore, issue a certi-
fication applicable to the employees other than the machinists.
When the Board has made a final determination as to the ma-
chinists, it will, if it finds that such employees either constitute
a separate appropriate unit or should be included in the one
unit with the other employees, issue another certification embody-
ing that finding.
On October 3, 1939, the Board issued an order reopening the
record, directing that a further hearing be held, and remanding the
proceedings to the Regional Director. On October 17, 1939, the
United filed Exceptions to the Supplemental Decision and Certifica-
815 N L R B 827.
4 The Board certified the United as the exclusive bargaining representative of the hourly
paid and piece -work production and maintenance employees , excluding foremen , foreladies.
and assistant foremen , gang leaders , all other employees in a supervisory capacity, clerical
and office workers, scalers , checkers , yardmasters , students , policemen and watchmen, fire-
men, restaurant employees , car-line employees , workers in the employees ' and wholesale
markets, truck drivers , general-office garage employees , employees in the country trucking.
and machinists
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of Representatives, objecting to the Board's reopening of the
record for a further hearing regarding the issues raised in the I. A.
M.'s petition for intervention. On October 24, 1939, the Board over-
ruled the United's Exceptions to the Supplemental Decision and Cer-
tification of Representatives.
On October 10, 1939, the Regional Director issued a notice for
further hearing, copies of which were duly served upon the Company,
the United, the I. A. M., and Armour's Employees Protective Asso-
ciation.-' Pursuant to the notice, a hearing was held on November
20, 1939, at Omaha, Nebraska, before Madison Hill, the Trial Exam-
iner duly designated by the Board. The Company, the Board, and
the United were represented by counsel, the I. A. M., by its grand
lodge representatives; all participated in the proceeding. Full op-
portunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
At the conclusion of the hearing, the United moved to dismiss the
proceedings on the grounds that the petition for intervention was
insufficient, that although the I. A. M. had been given oral notice
of the prior proceedings 6 and had been requested to intervene it
had failed to do so, and that the I. A. M. was claiming an inappro-
priate bargaining unit. The grand lodge representative of the I. A.
M. stated at the hearing that he had not intervened in the previous
proceedings because he had been informed by an organizer of the
United that the United would not seek to represent the employees
claimed by the I. A. M. The United organizer was not called to deny
this assertion. Upon the record, we are of the opinion that the
petition of the I. A. M. for intervention is sufficient, and that the
failure of the I. A. M. representative to intervene was not such as
to preclude it from thus participating in the instant proceedings.
The motion to dismiss is hereby denied.
Upon the entire record in the case, the Board makes the following :
SUPPLEMENTAL FINDINGS OF FACT
I. THE ORGANIZATIONS INVOLVED
Local Union No. 8, United Packinghouse Workers of America, of
the Packinghouse Workers Organizing Committee, is a labor organi-
zation affiliated with the Congress of Industrial Organizations, ad-
mitting to its membership hourly paid and piece-work production
and maintenance employees of the Company.
5A labor organization which the Board previously had ordered disestablished in its
Decision and Order.
GA hearing was held from March 2 to 8, 1939, with reference to the United's petition
for investigation and certification.
ARMOUR AND COMPANY 821
Lodge 31, International Association of Machinists, is a labor or-
ganization affiliated with the American Federation of Labor. It
admits to its membership machinists and maintenance employees of
the Company.
II. THE APPROPRIATE UNIT
In its original petition, the I. A. M. claimed to represent the ma-
chinists, machine erectors, and maintenance employees. In the peti-
tion as amended the I. A. M. limited its claim to the six machinists
then on the pay roll of the Company. The United disputes the
appropriateness of the unit claimed by the I. A. M.
The first question presented in this connection is whether the unit
claimed by the I. A. M. is inappropriate because of its exclusion of
the millwrights employed by the Company. The machinists operate
machines in the machine shop, make parts, and repair machinery for
all the departments of the Company. Several machinists spend most
of their time in the machine shop, whereas others spend more than half
their time in work throughout the plant. The millwrights work
in the plant assembling and tearing down machinery. The ma-
chinists are more highly skilled and experienced than the millwrights
and are able to perform certain functions for which the millwrights
do not have the necessary knowledge and qualifications. The basic
wage rates of the machinists are 881/2 cents to 95 cents an hour; those
of the millwrights are 831/2 cents to 90 cents an hour. Two mill-
wrights, who are specialists, receive 90 cents an hour, which is a
higher wage than that received by several of the machinists. Al-
though the millwrights are eligible to membership in the I. A. M.,
only one employee listed on the Company's pay roll as a millwright
is a member of the I. A. M. The personnel manager of the Company
testified that the latter employee is a machinist but was recently
employed as a millwright because no vacancies as a machinist then
existed. Further, the personnel manager testified that the machinists
and the millwrights were considered as two separate and distinct
groups of employees. Under the circumstances, we are of the opin-
ion that the machinists properly may constitute a bargaining unit
without the inclusion of the millwrights.
The machinists never participated in the Employee Representation
Plan, which existed in the plant from 1921 to April 1937. The
I. A. M. has had members in the plant since 1918, but has never
bargained collectively with the Company on behalf of its members.
Although the United has claimed to represent all the employees of
the Company, it does not appear that it has ever bargained on behalf
of the machinists or that any of the machinists are members of the
283033-41-vol. 22-53
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United. As in previous cases presenting similar circumstances,'
we find that the desires of the employees should be the determin-
ing factor as to whether the machinists should constitute a separate
unit, or should be included in the plant-wide unit.
On March 1, 1940, the Regional Director, acting pursuant to
Article III, Section 9, of National Labor Relations Board Rules
and Regulations-Series 2, as amended, issued and served upon the
parties a Supplemental Election Report.8 No objections to the Sup-
plemental Election Report have been filed by any party.
As to the results of the secret ballot, the Regional Director re-
ported as follows :
Total number of machinists ballots counted--------------------- 6
Total number of ballots for I. A. M -------------------------- 6
Total number of ballots for United____________________________ 0
Total number of ballots for neither____________________________ 0
Total number of challenged ballots__________________________ 0
Total number of blank ballots________________________________ 0
Total number of void ballots__________________________________ 0
Total number of ballots cast__________________________________ 6
We find that the machinists of the Company constitute a unit ap-
propriate for the purposes of collective bargaining and that such a
unit will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and other-
wise effectuate the policies of the Act.
We further find that the I. A. M. has been designated and selected
by a majority of the machinists as their representative for the pur-
poses of collective bargaining. It is therefore the exclusive bargain-
ing representative of all the machinists for the purposes of collective
bargaining, and we shall so certify.
On the basis of the above supplemental findings of fact and upon
the entire record in the case, the Board makes the following :
SUPPLEMENTAL CONCLUSIONS OF LAW
1. The machinists of Armour and Company, Omaha, Nebraska,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the National Labor
Relations Act.
2. Lodge 31, International Association of Machinists, is the ex-
clusive representative of all the machinists for the purposes of col-
7 See Matter of Armour t Company and International Avsociat,on of Machinists, Local
92, 5 N L. R. B. 535; Matter of Armour c6 Company and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local No. 641, 9 N. L R B 1295.
s On February 21, 1940, the Regional Director was instructed by the Board to count the
ballots cast by the machinists in the election of August 30, 1939, in the 'presence ' of' repre-
sentatives of the various parties, and to issue a Supplemental Election Report.
ARMOUR AND COMPANY 823
lectiveu_Lbargaining, within the meaning 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 Re-
lations Act, and pursuant to Article III, Sections 8 and 9, of Na-
tional Labor Relations Board Rules and Regulations-Series 2, as
amended,
IT IS HEREBY CERTIFIED that Lodge 31, International Association of
Machinists, has been designated and selected by a majority of the
machinists of Armour and Company, Omaha, Nebraska, as their
representative for the purposes of collective bargaining, and that,
pursuant to Section 9 (a) of the Act, Lodge 31, International Asso-
ciation of Machinists, is the exclusive representative of all the,
machinists for the purposes of collective bargaining in respect to^
rates of pay, wages, hours of employment, and other conditions of
employment.
MR. EDWIN S. SMITH, dissenting :
I disagree with the finding of the majority of the Board that the
machinists constitute an appropriate unit. There is no history of
collective bargaining by the I. A. M. despite its claim of member-
ship among the machinists over a long period of time. My dissent
is based on considerations which I have urged in the Matter' of
Allis-Chalmers Manufacturing Company and International Union,
United Automobile Workers of America, Local 248, 4 N. L. R. B. 159,
and in subsequent cases.'
9 See, inter alia, cases cited in footnote 7, supra.