B. Hoberman

National Labor Relations Board - Board Decisions

Apr 15, 1941

30 N.L.R.B. 1241 (N.L.R.B. 1941)

In the Matter of B. HOBERMAN and AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, LOCAL No. 195, AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR
Case No. B-.357.-Decided A ii 15, 1941
Jurisdiction : live poultry industry.
Investigation and Certification of Representatives : existence of question : denial
of employment relationship ; election necessary.
Employees who have worked within last 3 months held to have interest
substantial enough to entitle them to vote.
Unit Appropriate for Collective Bargaining : all the Company's employees en-
gaged in the unloading, handling, and loading of live poultry, including extra
employees, but excluding executives, working foremen, salesmen , buyers, and
office workers.
Casual workers whose interests and work, apart from irregularity of
employment, is the same as regular employees, and who constitute an integral
part of labor used by Company, included it the unit.
Blwmberg & Sork, by Mr. Benjamin Sork, of Philadelphia, Pa., for
the Company.
Mr. Louis F. McCabe, of Philadelphia, Pa., for the Union.
Miss Mary E. Perkins, of counsel to the Board.'
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 20, 1940, Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 195, affiliated with the Ameri-
can Federation of Labor, herein called the Union, filed with the
Regional Director for the Fourth Region (Philadelphia, Pennsyl-
vania) a petition alleging that a question affecting commerce had arisen
concerning the representation of employees of B. Hoberman, Phila-
delphia, Pennsylvania, 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 January 30, 1941, '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
30 N. L. R. B., No. 176.
1241
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
• On February 18, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
the Union. On February 25, 1941, the Company filed an answer,
requesting the dismissal of the petition. Pursuant to notice a hearing
was held on February 27, 1941, at Philadelphia, Pennsylvania; before
Jerome I. Macht, the Trial Examiner duly designated by the Chief
Trial Examiner. The Company and the Union were represented by
counsel and 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. At the close of the
hearing the Company renewed its earlier motion to dismiss the peti-
tion. The Trial Examiner did not rule on this motion. For reasons
which hereinafter appear, the motion is hereby denied. During the
course of the hearing the Trial Examiner made several rulings on
other motions and on objections to the admission of evidence. The
Board has reviewed all the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
B. Hoberman, the Company, is an individual engaged at his place
of business in Philadelphia, Pennsylvania, as awholesale commission
merchant in the live poultry business. The Company contends that
the Board is without jlirisdiction. During the calendar year 1940 the
Company received and distributed 1,725,000 pounds of poultry, its
purchases,amounting to $300,000. Approximately 80 per cent of this
poultry was shipped to the Company's place of business in Philadel-
phia- from -points outside Pennsylvania. About one-half of-1 per cent
of the poultry sold and distributed by the Company is shipped outside
of Pennsylvania, the remainder being sold and consumed within the
State.
The Company employs, to handle its poultry, one full-time employee,
and from one to six additional persons a month for day work.
II. THE ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica, Local No. 195, affiliated with the American Federation of Labor,
is a labor organization admitting to membership employees of the
1
B. HO-BE'RM]AN 1243
Company and those of other employers in the same industry in
Philadelphia.
III. THE QUESTION CONCERNING REPRESENTATION
Since March 1940, the Union has unsuccessfully sought to bargain
with the Company as the representative of the Company's full-time
and extra employees. The Company in its answer took the position
that it has only one employee, contending that the extra men doing
work for it are not its employees. For the reasons given below we
find that the Company has more than one employee.'
A statement of the Regional Director introduced in evidence shows
that the Union represents a substantial number of the Company's
employees.2
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 Union contends that all the Company's employees engaged
in the unloading, handling, and loading of live poultry, including
extra employees, but excluding executives, working foremen, sales-
men, buyers, and office workers, constitute a unit appropriate for
collective bargaining. The Company is in disagreement with the
Union as to the inclusion of extra employees.
The wholesale live poultry business in Philadelphia is centered
in one block on Front Street, where some 24 dealers, including this
Company, have their places of business. About half of a group of
' The Board has held that since the principle of collective bargaining presupposes that
there is more than one eligible person who desires to bargain , the Act does not empower the
Board to certify where only one employee is involved . Matter of Luckenbach Steamship
Company, Inc., et al. and Gatemen, Watchmen and Miscellaneous Waterfront Workers
Union, Local 88-121,; International Longshoremen 's Association, 2 N I, R B 181.
' The Regional Director 's statement shows that the Company 's one full-time employee and
5 of the 10 other persons whose names appear on the Company 's pay roll between July 1
and December 31, 1940, have signed cards designating the Union as their sole bargaining
representative . Five of the cards are dated between July 1939 and December 1940 ; one is
undated.
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1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
65 to 70• men are employed by the individual dealers on a weekly or
monthly basis; the remaining men gather on Front Street every day,
where they are available, from early in the morning until after
noon, to respond to calls from any of the dealers who needs them for
a^ day.'s work. There is at present no hiring hall or other method'
of regularizing the employment of the individual workers. Each of
the extra men works for several employers in the course of a month.
,The Company's one full-time employee has been steadily em-
ployed for the last 81/2 months, at a weekly salary, to unload, weigh,
and reload shipments of poultry. During the,same period, the Com-
pany has required an extra man to help. handle its shipments on an
average of 18 days each month. These extra men do the same work
and, apart from the irregularity of their employment, appear to
have the same interests as the Company's full-time employee. The
Union, in admitting workers to membership, makes no distinction
between full-time and extra employees. We find that the extra
workers constitute an integral part of the labor used by the Company.
We shall include them in the unit.
We find that all the Company's employees engaged in the unload-
handling, and loading of live poultry, including extra employees,
but excluding executives, working foremen, salesmen , buyers, and
office workers, constitute a unit appropriate for the purposes of
collective bargaining, and that said unit will insure to -the employees
of the Company the full benefit of their right to self-organization and
to collective bargaining and otherwise effectuate the policies of the
Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the represen-
tation of employees of the Company can best be resolved by means of
an election by secret ballot. The Union urged that certain employees;
all of whom have worked for the Company 6 days during the last 81/2
months, should be eligible to vote; at least one of these men, however,
has not worked for the Company since September., The Company, as
stated above, has taken the ' position throughout that none of these
person's can be considered "employees." We find that only those per-
sons who have worked for the Company within the last 3 months have
such a substantial interest in the conditions of employment at the
Company's place of business as to be eligible to vote.-3 Accordingly,
we shall direct that eligibility to vote shall be limited to the Com-
pany's full-time employee and, such other employees of the Company
I
' The Company 's pay roll , covering January and part of February , which was introduced
at the hearing, shoes that at least Cleveland Johnson, Nelson Poulson, Joseph Johnson,
and Richard Maddox will thus be eligible to vote Eligibility will extend, in addition, to
any persons employed subsequent to the period covered, up to the date of this Direction.
B. HOBE'RNPA[N 1245
in the appropriate unit as have worked for the Company during the
period from January 1, 1941, to the date of this Direction of 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 B. Hoberman, Philadelphia, Pennsylvania,
within the meaning of Section 9 (c) and Section 2 (6) and (7)^ of the
National Labor Relations Act. "
2. All the Company's employees engaged in the unloading,\ han-
dling, and loading of live poultry, including extra employees, but
excluding executives, working foremen, salesmen, buyers, and office
workers, 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 Relations
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
'DmECTED that, as.part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with B. Hoberman, Philadelphia, Pennsylvania, 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 su-
pervision of the Regional Director for the Fourth Region, acting in
this matter as agent for the National Labor Relations Board, and sub-
ject to Article, III, Section 9, of said Rules and Regulations, among
all employees -of the Company engaged in the unloading, handling,
and loading of live poultry, -including extra employees, who have
worked for the Company during the period between January 1, 1941,
and the date of this Direction of Election, but excluding executives,
working foremen, salesmen, buyers, and office workers, and any em-
ployees who have since quit or been discharged for cause, to determine
whether or not they desire to be represented by Amalgamated Meat
Cutters and Butcher' Workmen of North America, Local No. 195, affil-
iated with the American Federation of Labor, for the purposes of
collective bargaining. -