Cudahy Brothers Co.

National Labor Relations Board - Board Decisions

Nov 21, 1945

64 N.L.R.B. 896 (N.L.R.B. 1945)

In the Matter of CUDAHY BROTHERS COMPANY and AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMaIRGk, LOCAL
#248 (AFL)
Case No. 13-R-31148.Decided November 21, 1946
Mr. Leon Lam from, of Milwaukee , Wis., and Mr. L. M. Kenney, of
Cudahy, Wis., for the Company.
Mr. David Beznor, of Miilwaukee, Wis., for the Amalgamated.
Mr. Ralph Helstein, of Chicago, Ill., for the United.
Mr. Bernard Goldberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
Upon a petition duly filed by Amalgamated Meat Cutters and
Butcher Workmen of North America, Local #248 (AFL), herein
called the Amalgamated, alleging that a question affecting commerce21
had arisen concerning the representation of employees of Cudahy
Brothers Company, Cudahy, Wisconsin, herein called the Comh:Any,
the National Labor Relations Board provided for an appropriate
hearing upon due notice before Gustaf B. Erickson, Trial Examiner.
The hearing was held at Milwaukee, Wisconsin, on September 25,
1945. The Company, the Amalgamated and United Packinghouse
Workers of- America, Local #40, CIO, herein called the United, ap-
pea ed 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 an opportunity to file briefs with the Board.
The United 's request for oral argument is hereby denied.
64 N. L . R. B., No 152.
896
CUDAHY BROTHERS COMPANY 897
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Cudahy Brothers Company, a Wisconsin corporation having its
principal office and only packing plant in Cudahy, Wisconsin, is en-
gaged in slaughtering and processing livestock and in selling fresh
meats, processed items and byproducts. During the Company's last
fiscal year, it purchased livestock valued in excess of $10,000,000 out-
side the State of Wisconsin for slaughter and processing in its Cudahy
plant. The Company annually sells products value at more than
$2.5,000,000, of which a large percentage is sold outside the State.
We find that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North
America, Local #248, affiliated with the American Federation of
Labor, and United Packinghouse Workers of America, Local #40,
affiliated with the Congress of Industrial Organizations, are labor
organizations admitting to membership employees of the Company.
111. THE QUESTION CONCERNING REPRESENTATION
The Company has refused the Amalgamated's request for recogni-
tion as the collective bargaining representative of its production and
maintenance employees, stating that it will not accord such recogni-
tion until the Amalgamated has been certified by the Board. The
United asserts that a contract with the Company executed on
August 31, 1945, is a bar to this proceeding.
On March 8, 1938, following an election held pursuant to its
Decision and Direction of Election,' the Board certified the United
as the collective bargaining representative of the Company's produc-
tion and, maintenance employees.' Despite the certification, the
United and the Company never entered into a formal collective bar-
gaining contract prior to August 31, 1945, although during the entire
period the Company recognized the Uniteda s the collective bargain-
ing representative of its employees and dealt with it concerning
14 N. L. R. B. 1171.
2 5 N. L. R. B. 877.
670417-46-vol. 64-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievances and the terms and conditions of employment. From
time to time, the United made proposals for a formal contract with-
out result. In 1942, about 4 years after its certification, the United
commenced proceedings before the War Labor Board in an effort
to obtain a written agreement. For a time these proceedings were
held in abeyance pending the disposition of a case involving the
"Big Four Packers" which was considered to have a bearing on
the United's claims. But after the War Labor Board issued its
directive in the "Big Four Packers" case early in 1943, the United
pressed the processing of its own case.
All issues between the parties, except those relating to mainte-
nance of membership and check off, were resolved prior to February
1944 either by mutual agreement or by acceptance of War Labor
Board directives and were put into effect. The War Labor Board
also directed that maintenance of membership and check-off clauses
be included in the Company's collective bargaining contract with
the United; the Company, however, refused to accept the directives
as to these clauses and after exhausting the appeals procedure of
the War Labor Board sought, without success, to obtain relief from
these unacceptable provisions in the courts. In December 1944,
while the dispute between the Company and the United was still
unresolved, the United States Army took possession of the Com-
pany's plant after an affirmative strike vote by the employees in an
election held pursuant to the War Labor Disputes Act. On taking
possession, the Army set forth its labor policy in a document called
"Terms and Conditions of Employment" recognizing the United
and embodying substantially all the terms and conditions of employ-
ment previously accepted by the parties plus the disputed mainte-
nance of membership and check-off clauses. On August ^1, 1945, the
Army returned the operation of the plant to the Company. On the
sane date, the Company and the United executed a collective bar-
gaining contract carrying over unchanged, for the most part, the
terms and conditions of employment which existed under the Army's
regime, with the exception that the maintenance of membership clause
was eliminated and the check-off clause was modified. This contract
is for a 1-year term.
The contract of August 31, 1945, was executed after the Amalga-
mated had served its written demand for recognition on the Company
and, therefore, under well-established principles cannot, standing by
itself, operate as a bar to this proceeding. However, the United con-
tends, in effect, that the proceedings before the War Labor Board bar
a present determination of representatives since an election, if now
directed, would penalize it for utilizing the orderly procedures estab-
lished by governmental authority for the adjustment of differences
CUDAHY BROTHERS COMPANY 899
and would prevent it from enjoying the benefits of its first complete
contract with the Company. We do not agree.
The fact that a contract was delayed in its execution because of the
submission of matters in dispute to the War Labor Board will not in
every case justify a postponement in the consideration of a petition
filed by a rival union. It is only where the bargaining representative
has been newly certified or recognized and its initial efforts to secure
benefits for the employees have been unavailing because of voluntary
submission to the procedures of the War Labor Board that such
proceedings will be held to be a bar.' In the instant case, the United
was not a newly certified representative at the time of the commence-
ment of the proceedings before the War Labor Board; it had already
been the bargaining representative for approximately 4 years at that
time. Moreover, during its 7 years tenure as bargaining representa-
tive the United has had ample opportunity to obtain and has obtained
substantial benefits for the employees whom it has been representing.'
In these circumstances, we find that there is no bar to the present
proceeding.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Amalgamated represents a substantial
number of employees in the unit hereinafter found appropriate.5
We find that a question affecting commerce has 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 UNIT
We find, in accord with-our previous determination and the agree-
ment of the parties, that all production and maintenance employees
of the Company at its Cudahy, Wisconsin, plant, excluding office and
clerical employees, part-time and temporary employees s and all super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
3 Matter of Jackson Box Company, 59 N. L. R. B 808 ; Matter of International harvester
Company, 55 N. L R. B. 497; cf. Matter of Montgomery Ward & Company , 60 N. L. It. B.
574.
4 Matter of The American Brass Company , 56 N. L. R. B. 1611 ; Matter of Bethlehem
Supply Company , 56 N L. it. B. 439.
5 The Field Examiner reported that the Amalgamated submitted 465 authorization cards,
of which 335 were signed in May and June 1945 and 130 were undated , and that there
were 1 , 000 employees in the appropriate unit. The United relies on its contract to estab-
lish its interest.
The United made various offers of proof, aimed at contesting the validity of the Amal-
gamated ' s showing of interest . All these offers were properly rejected by the Trial Exam-
iner. Authorization cards are merely prima facie evidence that the petitioner has sufficient
interest to justify formal proceedings . Their purpose is entirely administrative and,
accordingly , the Board does not permit opposing parties to question their authenticity.
See Matter of The Regina Corporation , 57 N. L. R. B 4
6 We hereby adopt the agreement of the parties that a temporary employee is one whose
continuous service with the Company has not exceeded 30 accumulated days of actual work.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of
the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
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 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 Cudahy Brothers
Company, Cudahy, Wisconsin, an election by secret ballot shall be
conducted as early ac possible, but not later than sixty (60) 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 the
employees in the unit 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
the said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding employees who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the elec-
tion, to determine whether they desire to be represented by Amal-
gamated Meat Cutters and Butcher Workmen of North America,
Local #248, (AFL) or by United Packinghouse Workers of America,
Local #40, CIO, for the purposes of collective bargaining, or by
neither.