Fairmont Creamery Co.

National Labor Relations Board - Board Decisions

Sep 19, 1942

44 N.L.R.B. 199 (N.L.R.B. 1942)

In the Matter of FAIRMONT CREAMERY COMPANY, OMAHA, NEBRASKA
and AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, AFFILIATED WITH THE A. F. OF L.
Case No.. B-4218.-Decided September 19,-19/1 '
Jurisdiction : milk produce industry.
Investigation and Certification of Representatives : existence of question: re-
fusal of Company to bargain until question of majority determined; Trial
Examiner's overruling of Company's objection to quantum and nature of proof
of union's designation, affirmed; withdrawal of employees for military service
or to seek employment elsewhere held to constitute insufficient grounds for
delaying election indefinitely ; election necessary.
Unit Appropriate for Collective Bargaining : all production employees at one of
Company's plants, excluding all administrative personnel, office employees,
watchmen, and super visory employees ; agreement as to
Flensburg ct Flensburg, by Mr. Charles H. Flensburg, 'of Lincoln,
Nebr.; Mr. Lilyan Pospichal, Mr. Leonard K. Hurtz, Mr. M. S. Hart-
man, and Mr. A. W. Boy, of Omaha, Nebr., for the Company. '
Mr. Roy M. Brewer, of Grand Island, Nebr., and Mr. T. J. Lloyd and
Mr. C. B. He'inger, of, Omaha, Nebr., for the Union.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
0
,Upon petition duly filed by Amalgamated Meat Cutters and Butcher
Workmen of North America, affiliated with the American Federation
of Labor, herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Fairmont Creamery Company, Omaha, Nebraska, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notitce before Robert S. Fousek, Trial Ex-
aminer. Said hearing was held at Omaha, Nebraska, on August 27,
1942. The Company and the Union appeared, participated, and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
44 N. L. R. B., No. 34.
199
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
'Upon-the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Fairmont Creamery Company has its principal office at Omaha,
Nebraska, wl ere it also operates a' creilmery ands Pohl`try produce busi-
ness. At its Omaha plant, the only plant of the Company directly
concerned in, this proceeding, the volume of the Company's business
annually exceeds $500,000, approximately 25 percent of which repre
sents products shipped to points outside Nebraska. The Company
admits that it is engaged in commerce within the meaning 'of the
National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North
America is a labor organization affiliated with the American Federa-
tion. of Labor, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about July 24, 1942, the Union asked the Company to recog-
nize it as bargaining agent for the' Company's employees. The Com-
pany questioned the Union's majority among its employees and refused
to recognize the Union.
A statement prepared by a Field Examiner and introduced into evi-
dence at the hearing indicates that the Union represents a substantial
number of employees in the appropriate unit.'
'The Union submitted to the Field Examiner 180 applications for membership, of
which 8 are undated and the remainder bear dates in 1942. Of these cards , 109 bear
apparently genuine signatures of employees ' I isted on the Company 's pay roll of August
1, .1942 Of the remaining .71, cards, 63 bear the names of employees on the Company's
pay roll of April 24 , 1942 . These names are not listed on the later pay roll . There are
about 350 employees in the proposed unit. '
,,•At thb, hearing'the Company objected to the introduction into evidence of the Field
Examiner 's statement on technical grounds and on the ground that it did not prove that
the Union represented the employees of the Company. The Trial Examiner overruled the
obiection . The ruling of the Trial Examiner is hereby affirmed . As we have ' frequently
stated , the report of the Regional Director, or of a Field Examiner attached to the
Regional Office, with respect to a claim of 'authorization is' received in evidence not as
proof of the precise number of employees who desire to be represented by a labor organiza-
tion at , the time of the hearing , but rather to ascertain whether a, substantial number of
employees of the ' Company has indicated a desire to be represented by an organization
for the purpose of collective bargaining , and that an election ; directed by 'the Board may
not' be a vain proceeding . ' Matter of Cities Seri ace Oil Company, Pettys Island Refinery
Division and Oil Workers International Union, affiliated with the C.' I O , 38 N. L. R. it
1055. A considerable number of the Company ' s employees have left the plant either
to enter , military service or to seek employment in other plants To, replace them the
FAIRIVIONT- CREAMERY ' COMPANY, OMAHA, NEBRASKA 201
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 accordance with the agreement of the parties, that all
production employees of the Company at its Omaha, Nebraska, plant,
excluding all administrative personnel, office' employees, watchmen,
and supervisory employees having the right to hire and discharge,
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 find that the question concerning representation which has arisen
can best be resolved by an election by secret ballot among employees
of the Company `within the appropriate unit who were employed
during the pay-roll period immediately preceding the date of this
Direction of Election, subject to the limitations and additions set forth
therein.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested i n the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations, Series 2, as amended, it is-
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Fairmont Creamery
Company, Omaha, Nebraska, an election by secret ballot shall be con-
ducted 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 Seventeenth 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, among all employees of
the Company within the unit found appropriate in Section IV, above,
Company has hired about 200 employees , most of whom are new employees . While the
evidence clearly indicates that a substantial number of employees who signed application
cards in the spring of 1942 are not listed on the more recent pay roll, the record does
not disclose that all such employees have lost their status as employees of the Company.
We believe that there is sufficient indication of the desire for collective bargaining among
the Company 's employees to justify us in proceeding with an election at this time. Cf.
Matter of International Shoe Company and United Rubber Workers of America, Local
#198, af/ilidted with C. 1. 0 ; Matter of International Shoe Company and United Shoe
Workers of America, Local No. 100-A; Matter of International Shoe Company and Western
Brotherhood of Shoe and Rubber 117orlers, 40 N. L. R. B. 1211
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
.who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work dur-
ing such pay-roll period because they were ill or on vacation or in the
active military service or training of the United States, or tempo-
rarily laid off, but excluding employees- 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, affiliated with the American Federation of Labor, for
the purpose of collective bargaining.
` " MR. Wier. M. LEIsERSON took no part in the consideration of the above
Decision and Direction of Election. '
In. the -Matter Of FAIRMONT CREAMERY COMPANY, OMAHA, NEBRASKA,
and AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF
NORTH AMERICA, AFFILIATED WITH THE A. F. OF L.
Case, No. R-4218.
ORDER PERMITTING WITHDRAWAL OF PETITION
September 30, 191
The Board having on September 19, 1942, issued a Decision and
Direction of Election' in the above-entitled case, and, thereafter,
Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica,-. affiliated-'with the American Federation. of Labor having, re-
quested permission to withdraw its petition, and the Board having
duly considered the matter,
IT IS HEREBY ORDERED that the request of the petitioner-for per-
andmission to withdraw its petition be, and it hereby is, granted" and
that the aforesaid case be, and it hereby is, closed.
144 N. L . R. B. 199.
44 N L R. B, No 34a
203 ,
1.