Armour & Co.

National Labor Relations Board - Board Decisions

Oct 24, 1939

16 N.L.R.B. 334 (N.L.R.B. 1939)

In the Matter of ARMOUR & COMPANY and LOCAL # 566, AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA
Case No. R-1,58.Decided October 24, 1939
Meat Packing Industry-Investigation of Representatives : controversy con-
cerning representation of employees : employer questions majority of petitioning
union ; rival organizations ; controversy as to appropriate units-Contract: oral
agreement for recognition only does not preclude investigation and certification
of representatives-Units Appropriate for Collective Bargaining: craft or plant:
elections to determine ; single election among all employees in motive-power de-
partment requested by craft unions refused where said unions maintain separate
organizations with mutually exclusive jurisdictions ; separate unit of firemen,
coal passers , and laborers in motive -power department if election shows these
employees desire it ; separate unit of engineers and brine men in motive-power
department if election shows these employees desire it ; unit composed of all other
production and maintenance employees including livestock drivers, but excluding
foremen, assistant foremen, salesmen , teamsters , clerical and office employees,
policemen or watchmen , box pullers , supervisory employees , and steady-time
checkers-Elections Ordered
Mr. Stephen M. Reynolds , for the Board.
Mr. Walter C. Kirk , of Chicago , Ill., for the Company.
Mr. E. W. Jimerson, of East St. Louis, Ill., for the Amalgamated.
M^. John J. Brownlee , of Chicago , Ill., for the United.
Mr. William H. Blake, of Peoria, Ill., for the Firemen & Oilers and
for the Engineers.
Mr. Robert F. Koretz , of counsel to the Board.
DECISION
AND
DIRECTIONS OF ELECTIONS
STATEMENT OF THE CASE
On June 12, 1939, Local # 566, Amalgamated Meat Cutters and
Butcher Workmen of North America, herein called the Amalgamated,
filed with the Regional Director for the Thirteenth Region (Chicago,
Illinois ) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Armour & Com-
pany, Peoria, Illinois, herein called the Company, and requesting an
investigation and certification of representatives pursuant to Section
16 N. L. R. B., No. 38.
334
ARMOUR & COMPANY 335
9. (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On July 14, 1939, 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 Relations Board Rules
and Regulations-Series 2, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On July 20, 1939, the Acting Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
the Amalgamated, and upon United Packinghouse Workers of Amer-
ica of Packinghouse Workers Organizing Committee, herein called
the United, a labor organization claiming to represent employees
directly affected by the investigation. On July 27, 1939, the Acting
Regional Director granted a petition, dated July 25, 1939,- filed with
him by the United to intervene as a party. On August 3, 1939, during
the hearing, the Trial Examiner granted a joint motion to intervene
as parties filed on that date by International Brotherhood of Firemen
& Oilers, Local No. 8, herein called the Firemen & Oilers, and Inter-
national Brotherhood of Operating Engineers; Local No. 8, herein
called the Engineers, labor organizations claiming to represent certain
employees in the unit claimed by the United in its motion to intervene
to be appropriate.
Pursuant to the notice, a hearing was held on August 3, 1939, at
Peoria, Illinois, before Thomas H. Kennedy, the Trial Examiner duly
designated by the Board. The Board and the Company were repre-
sented by counsel; the Amalgamated, the United, the Firemen & Oil ers,
and the Engineers were represented by duly authorized representa-
tives. All participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
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 the 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. At the close of
the hearing, the Company moved to dismiss the United's petition to
intervene in the proceedings. The Trial Examiner made no ruling
on the motion. For reasons sufficiently appearing hereinafter this
motion is hereby denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Armour & Company, an Illinois corporation,- directly and through
subsidiaries, operates approximately 30 meat-packing plants located
336 DECISIONS OF'. NATIONAL LABOR RELATIONS BOARD
in some 23 States and' about 300 'wholesale meat-distributing houses
known as branch houses throughout the United States. Through
Armour & Company of Delaware, a Delaware corporation which is a
subsidiary of, and is controlled in its operations by, the Illinois cor-
poration, Armour & Company operates a packing plant at Peoria,
Illinois, herein called the Peoria plant. During the fiscal year ending
October 31, 1938, over 186,000 animals, having a value of approxi-
mately $4,400,000, were purchased and slaughtered at, the Peoria planet.
About 10 per cent of this livestock originated in .States; other than
Illinois and was either purchased from commission men doing business
in the stockyards at Peoria or purchased. elsewhere and shipped
directly to the Peoria plant. Approximately 13 per cent of the prod-
ucts of the plant are shipped to points outside the State of Illinois.
Delivery of fresh meat and other perishable products is effected by
means of refrigerator cars and trucks. A considerable portion of the
output of the plant is shipped to wholesale branch distributing houses
of Armour & Company in other cities.
Approximately 315 employees, excluding office workers, are em-
ployed at the Peoria plant.
II, THE ORGANIZATIONS INVOLVED
Local #566, Amalgamated Meat Cutters and Butcher Workmen of
North America, chartered by Amalgamated Meat Cutters and Butcher
Workmen of North America, a labor organization affiliated with the
American Federation of Labor, admits to membership employees at
the Peoria plant.
United Packinghouse Workers of America of Packinghouse Work-
ers Organizing Committee, a labor organization affiliated with the
Congress of Industrial Organization, also admits to membership
employees at the Peoria plant.
International Brotherhood of Firemen & Oilers, Local No. 8, affili-
ated with the American Federation of Labor, is a labor organization
admitting to membership the firemen, coal passers, and laborers em-
ployed at the Peoria plant in the motive-power department.
International Brotherhood of Operating Engineers, Local No. 8,
affiliated with the American Federation of Labor, is a labor organi-
zation admitting to membership the engineers and brine men em-
ployed at the Peoria plant in the motive -power department.
III. THE QUESTION CONCERNING REPRESENTATION
According to the testimony of John M. Borger, superintendent of.
the Peoria plant, and of William H. Blake, who had represented
the Firemen & Oilers in negotiations' with Borger, the management
has dealt with the Firemen & Oilers and the Engineers as the repre-
ARMOUR c. COMPANY 337
sentatives of employees in the motive-power department for approxi-
mately 18 months. Both Borger and Blake testified that early in
June 1939, an oral agreement was made with these organizations
and that there had been a prior oral agreement, the nature of which
_was not made clear. After stating generally that the recent agree-
ment covered wages, hours, and working conditions, Borger, on cross-
examination, testified that no contract had been entered into, and,
upon the advice of counsel, declined to. answer further questions as
to the terms of the alleged agreement. We should not be inclined
to credit Borger's testimony under these' circumstances, but we think
that, in any event, his examination sufficiently discloses that there is
at most a "working agreement" which provides that the Company
will recognize the Firemen & Oilers and the Engineers as the repre-
sentatives of employees in the motive-power department. This con-
clusion is corroborated by the testimony of Blake, who according to
Borger, had negotiated the agreement together with Robison of the
Engineers. Blake testified that the agreement, which he said was for
1. year. "is one of recognition," and gave no testimony as to any
other terms.' Such an agreement for recognition only cannot
particularly in view of Borger's admission that the Firemen & Oilers
and the Engineers had sought a written agreement in June-pre-
elude an investigation and certification of representatives for the
purposes of collective bargaining.2
In March and April 1939, the United and the Amalgamated began
.organizational campaigns among the Company's employees. In May
1939, the Amalgamated asked for recognition as bargaining repre-
sentative for employees and submitted a proposed contract. Subse-
quently, the Company advised the Amalgamated that this organza-
t,ion would not be recognized until it was certified by the Board.
About 3 weeks prior to the hearing on the petition filed by the Amal-
gamated, certain employees who had become members of the United
met and voted to set up a local to be chartered by the United, and
at a meeting held on July 27, 1939, they elected ^ officers and voted to
apply for a charter. As stated above, the petition of the United,
dated July 25, 1939, for leave to intervene was granted by the Acting
Regional Director on July 27, 1939. Although the United has not
sought to bargain with the Company, it claims that it has been desig-
nated as bargaining representative by a majority of the Company's
'In considering the effect of the "working agreement" upon the question concerning
representation, we have followed the terminology of Borger and Blake. However, the fact
that these negotiations were carried on by Blake for the Firemen & Oilers, and by Robison
for the Engineers, as stated in Section V, infra, leads us to the conclusion that the so-called
agreement was, at most, an understanding that these labor organizations would be treated
with as representing the employees within their jurisdictions.
2 Compare Matter of Se.iss Manufacturing Company and Committee for Industrial
Organization, 7 N. L. R. B. 481.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the unit which it asserts is appropriate for the purposes
of collective bargaining, and, as stated in Section V below, is not in
agreement with either the Amalgamated or the Firemen & Oilers and
the Engineers as to the appropriate unit.
As also stated above, the Company moved at the close of the hearing
to dismiss the petition of the United to intervene. The Company con-
tended, in effect, that no question concerning representation might be
urged by the United in the absence- of proof of authorization by em-
ployees of the Company to the United to file the petition. The con-
tention is not one which may be urged by an employer.a
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE 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 commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Amalgamated contends that all the production and maintenance
employees of the Company, including livestock drivers and steady-
time checkers, but excluding foremen, assistant foremen, salesmen,
teamsters, clerical and office employees, policemen or watchmen, box
pullers, supervisory employees, and the employees in the motive-power
department, constitute a unit appropriate for the purposes of collec-
tive bargaining. The United differs in its contention as to the appro-
priate unit in that it would exclude livestock drivers and steady-time
checkers, and include the employees in the motive-power department.
The Company desires the inclusion in the unit of box pullers and live-
stock drivers and maintains a neutral position concerning the employ-
ees in the motive-power department. The Firemen & Oilers and the
Engineers urge a single and separate unit for employees in the motive-
power department.
Employees in the Motive-Power Department. The Company's pay
roll for the pay-roll period ending July 29, 1939, which was introduced
into evidence, discloses that there are 15 employees in this department:
4 coal passers, 4 firemen, 4 engineers, 2 brine men, and 1 laborer. Al-
SMatter of The Sorg Paper Company and Committee for Industrial Organization,
8 N. L. R. B. 657.
ARMOUR & COMPANY 339
though a large part of their work is performed in a separate building
adjacent to the main-plant building, the coal passers make periodic
rounds through the plant to test temperature, and the brine men per-
form some of their duties in the main-plant building. The supply of
electric power, refrigeration, and steam which is used in the plant and
which is essential to plant operation is dependent upon the continuous
functioning of this department. The record discloses that the Fire-
men & Oilers and the Engineers have bargained frequently with the
Company as the representatives of these employees for a period of
approximately 18 months. It appears that both a representative of
the Firemen & Oilers and a representative of the Engineers have
attended these bargaining conferences. Both organizations ask that
their names be placed jointly on a ballot in the event an election is
directed in which the employees in the motive-power department par-
ticipate. However, the Firemen & Oilers and the Engineers have
maintained and propose to continue, their separate identity. They
have claimed, and proposed to continue to claim, mutually exclusive
jurisdictions 4 over employees in the motive-power department. Un-
der all of these circumstances, we find that the engineers and brine
men could appropriately bargain as a separate unit, and that the fire-
men, coal passers, and laborers could also bargain as a separate unit.
A consideration of all the facts leads us to the further conclusion that
the employees in the motive-power department could appropriately
bargain as separate units or as part of the industrial unit which will be
defined hereinafter. In similar cases 5 we have held the desires of the
employees to be the determining factor. On this matter, however, the
record is not conclusive. While the Firemen & Oilers and the Engineers
claimed that all of these employees were members of, and had desig-
nated one of those unions as their representative, neither offered any
documentary proof. An organizer for the United testified that a
"substantial number" of those employees had designated the United as
their representative; and an organizer for the Amalgamated testified
that "eleven or fifteen" of these employees had sought to join the
Amalgamated, apparently upon the assumption that it was organized
on a completely industrial basis. Therefore, we are unable to determine
the desires of these employees upon the basis of the evidence introduced
at the hearing. Accordingly, upon the results of elections directed
4 See Section II, supra.
5 See Matter of The G lobe Machine and Stamping Co. and Metal Polishers Union, Local
No. 3. et al.. 3 N. L. R. B. 294 ; Natter of Alti.o-Chalmerv Manufacturing Company and
International Union, United Automobile Workers of America, Local No. 248, 4 N. L. R. B.
159; and subsequent cases, including Matter of Armour d Company and Amalgamated
Meat Cictters and Butcher Workmen of North America, Local No. 61,1, 9 N. L. R. B. 1295:
Matter of Locke Insulator Corporation and Congress of Industrial Organizations, 13
N. L. R. B. 615.
340 DECISIONS OF NATIONAL LABOR'RELATIONS BOARD
below will depend the determination of whether these employees will
constitute separate units or will be merged into the industrial unit.
Box Pullers. The United and the Amalgamated both desire the
exclusion of these workers, while the Company contends that they are
maintenance employees and should, therefore, be included in the indus-.
trial unit. At-the request of both labor organizations we shall exclude
them from the unit.6
Livestock Drivers. The United contends that livestock drivers
should be excluded from the unit; the Amalgamated and the Company
urge their inclusion. The Company has three such employees engaged
in bringing livestock from the stockyards to the plant, one of whom
spends some of his time inside the plant tending hogs. We find that
these employees are engaged in tasks.closely related to the duties of
other employees performing production and maintenance work, and
we shall, therefore, include them in the unit.
Steady-time Checkers. The United also contends that steady-time
checkers should be excluded from the unit, while the Amalgamated
urges their inclusion. Evidence was adduced concerning the duties of
one of such employees, Arthur Hackman, who checks the' numbers of
empty cars that come into the plant for loading and icing, keeps icing
records, and checks products leaving the plant in cars or trucks. It
thus appears that the work of the steady-time checkers is essentially
clerical in nature, and we shall, therefore, exclude them from the unit.?
Other Employees. In accordance with our previous decisions and
at the request of the Company and the labor organizations involved,
we shall exclude foremen, assistant foremen, salesmen, teamsters,
clerical and office employees, policemen or watchmen, and supervisory
employees from the unit."
We find that all production and maintenance employees of the
Company, including livestock drivers, but excluding foremen, assist-
ant foremen, salesmen, teamsters, clerical and office employees, police-
men or watchmen, box pullers, supervisory employees, and steady-
time checkers, may properly constitute a unit appropriate for the
purposes of collective bargaining which would 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
0 We have excluded box pullers from an industrial unit in Matter of Armour & Company
and United Packinghouse Workers , Local Industrial Union No . 13 of the Packinghouse
Workers Organizing Committee , affiliated with the C. 1. 0., 13 N. L. R. B . 567. The
duties of such employees are described in footnote 4 therein.
7Cf. Matter of *Armour & Company and Packinghouse Workers Organizing Committee
for United Packinghouse Workers, Local 347, etc., 8 N. L. R. B. 1100.
s See, e. g., Matter of The Cudahy Packing Company and United Packinghouse Workers
of America, Local No. 21. of the Packinghouse Workers Organizing Committee , affiliated
with. the Congress of Industrial Organizations , 13 N. L. R. B. 526 ; Matter of Armour
& Company and Local No. 54, United Packinghouse Workers of America, of Packinghouse
Workers Organizing Committee, affiliated with the C. I. 0., 14 N. L. R. B. 865.
ARMOUR & COMPANY 341
the Act. As indicated above, firemen, coal passers, and laborers in
the motive -power department , and engineers and brine men in the
motive-power department may or may not be included in such unit,
depending on the results of elections which we shall order . We shall
therefore make no final determination of the appropriate unit pend-
ing th'e'elections to beheld alnong.the .employees in the motive-power
department.
VI. THE DETERMINATION OF REPRESENTATIVES
The Company's pay roll for the pay-roll period ending June 29,
1939, shows, that there are approximately 271 employees in the indus-
trial unit set out above, and 15 employees in the motive-power de-
partment. As stated above, in Section V, we are unable to determine
the desires of the employees in the motive-power department on the.
basis of the evidence adduced at. the hearing. The Amalgamated
submitted 203 authorization cards, which it asserted were signed by
employees in the unit which it claimed to be appropriate. Of these
cards 51 were rejected and 152 were admitted into evidence subject
to the. condition that they be checked against the Company's records
for purposes of authentication in the event that the Board should
decide to certify representatives without an election. The United
claimed that it had been designated as bargaining representative by
approximately 150 employees in the unit which it claimed appro-
priate, but introduced no evidence in support of this claim and con-
curred in a request by the Company for an election to determine
representatives.
Under these circumstances we find that the question concerning
representation can best be resolved by means of elections by secret
ballot.'
For the reasons stated above in Section V, we will direct three
separate elections. One, election shall be conducted among the em-
ployees in the industrial unit set out in Section V, hereinafter called
the industrial unit, to determine whether they desire to be represented
by the Amalgamated, or by the United, or by neither. Another elec-
tion shall be conducted among the firemen, coal passers, and laborers
in the motive-power department to determine whether they desire
to be represented by the Firemen & Oilers, or by the United, or by
neither. A third election shall be conducted among the engineers
and brine men in the motive-power department to determine whether
they desire to be represented by the Engineers, or by the United, or
by neither.
e Cf. Matter of The Cudahy Packing Company and United Packinghouse Workers of
America, Local No . 21, of the Packinghouse Workers Organizing Committee , affiliated with
the Congress of Industrial organizations, 13 N. L. R. B. 526.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If a majority of the employees in any of the,groups mentioned
above select one of the organizations affiliated with the American
Federation of Labor to represent them, the, employees in said. group
shall constitute a separate bargaining unit. If a majority of the
employees in any one group, or in each of more than one group, select
the United, all the employees in the group or groups which so desig-
nate the United shall constitute a single bargaining unit.
We shall direct that the employees eligible to vote in the elections
will b^, those who were employed by the Company during the pay-roll
period immediately preceding the date of the Direction of Elections,
including employees who did not work during such pay-roll period
because they were ill or on vacation, and employees who were then or
have since been temporarily laid off, but excluding those who have
-since quit or been discharged for cause.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the representa-
tion of employees of Armour & Company, Peoria, Illinois, within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the National
Labor Relations Act.
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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor.
Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Armour & Company,' Peoria, Illinois, elections by secret ballot
shall be conducted as early as possible but not later than thirty (30).
days from the date of this Direction of Elections 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, Section 9, of said Rules and Regulations:
1. Among all production and maintenance employees who were
employed by the Company during the pay-roll period immediately
preceding the date of this Direction, including livestock drivers, and
including employees who did not work during such pay-roll period
because they were ill or on vacation and employees who were then or
have since been temporarily laid off, but excluding foremen, assistant
foremen, salesmen, teamsters, clerical and office employees, policemen
ARMOUR & COMPANY 343,
or watchmen, box pullers, supervisory employees; steady-time check-
ers, the firelneii, coal passers, engineers, brine men and laborers em-
ployed in the motive-power department, and employees who have
since quit or been discharged for cause, to determine whether they
desire to be represented by Local #566, Amalgamated Meat Cutters''
and Butcher Workmen of North America, affiliated with the Ameri-
can Federation of Labor, or by United Packinghouse Workers of
America of Packinghouse Workers Organizing Committee, affiliated
with the Congress of Industrial Organizations, for the purposes of
collective bargaining, or by neither ;
2. Among the firemen, coal passers, and laborers in the motive-
power department who were employed by the Company during the
pay-roll period immediately preceding the date of this Direction,
including employees who did not work during such pay-roll period
because they were ill or on vacation, and employees who were; then,
or have since been temporarily laid off, but excluding employees who
have since quit or been discharged for cause, to determine whether
they desire to be represented by International Brotherhood of Fire-
men & Oilers, Local No. 8, affiliated with the American Federation
of Labor, or by United Packinghouse Workers of America of Pack-
inghouse Workers Organizing Committee, affiliated with the Con-
gress of Industrial Organizations, for the purposes of collective bar-
gaining, or by neither;
3. Among the engineers and brine men in the motive-power depart-
ment who were employed by the Company during the pay-roll period
immediately preceding the date of this Direction, including employ-
ees who did not work during such pay-roll period because they were
ill or on vacation, and employees who were then or have since been
temporarily laid off, but excluding employees who have since quit
or been discharged for cause, to determine whether they wish to be
represented by International Brotherhood of Operating Engineers,
Local No. 8, affiliated with the American Federation of Labor, or by
United Packinghouse Workers of America of Packinghouse Workers
Organizing Committee, affiliated with the Congress of Industrial
Organizations, for the purposes of collective bargaining, or by
neither.
MR. EDWIN S. SMITH, concurring :
The record discloses that the Firemen & Oilers and the Engineers
had been organized and had bargained with the Company approxi-
mately a year before the advent of either the Amalgamated or the
United. In view of this history of bargaining relations between the
Company and the Firemen & Oilers and the Engineers, I concur in
the decision to give the employees in these craft groups the oppor-
247383-40-vol. 16-23
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tunity to vote either to be represented as separate units or to merge
their interests with their fellow employees in the industrial unit.10
MR. WILLIAM M. LEISERSON, concurring in part and dissenting in
part :
I agree that three separate ballots must be spread among : the engi-
neers and brine men; the firemen, coal passers, and laborers; and the.
production and maintenance employees. It is not necessary in this
case, however, to postpone determination of the bargaining units until
the results of the election are known. The facts developed by the
investigation of the representation question require a finding that the
employees have organized themselves into three separate bargaining
units, each of which is appropriate for the purposes of the Act.
10 See my concurring opinions in Matter of Locke Insulator Corporation and Congress of
Industrial Organizations, 13 N. L. R. B. 615, and,cases therein cited in.footnote i.