Frank Pilley & Sons, Inc.

National Labor Relations Board - Board Decisions

Feb 22, 1943

47 N.L.R.B. 863 (N.L.R.B. 1943)

6
In the Matter of FRANK PH.LEY & SONS, INC. and LOCAL UNION #773
OF TITE INTERNATIONAL UNION OF OPERATING ENGINEERS , AFFILIATED
WITH THE AMERICAN FEDERATION or LABOR
Case No. R-48241.-Decided February 22, 1943
Jurisdiction : poultry and dairy products selling industry.
Investigation and Certification of Representatives : existence of question:
recognition' refused because of existing contract , covering' employees yin- unit
sought; contract held no bar when petitioner notified company of its claim to
representation prior to automatic renewal date ; election necessary.
Unit Appropriate for Collective Bargaining : election directed among operating
engineers at one plant of company to determine whether they desired a sepa-
rate bargaining unit or remain part of the industrial unit presently embracing,
them.
- Mr. Byron L. Sifford, of Sioux City, Iowa, for the Company.
Mr. Richard R. Bates, of Sioux City, Iowa, for the Engineers.
Mr.,John Davidbhik; of Sioux' City; Iowa, for the P. W. O. C.
Mr. William C. Baisinger, Jr., of counsel to 'the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Local Union #773 of The International
Union of Operating Engineers, affiliated with, the-American Federa-
tion of Labor, herein called the Engineers,,,alleging,that a question,
affecting commerce had arisen concerning the representation 'of em-
ployees of Frank Pilley & Sons, Inc., Omaha, Nebraska, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Stephen M. Reynolds,
Trial Examiner. The hearing was held at Sioux City, Iowa, on Feb-
ruary 2-, 1943. The Company, the. Engineers, and United Packing-
house Workers of America, Local #135, P. W. O. C.,.affiliated with
the C. I. 0., herein called the P. W. O. C., appeared, participated, and
were afforded full opportunity to be heard, to examine and cross-
examine',witnesses, and. to:introdilce, eviden_ ce,.bearing -on the, issues.
47 N. L. R. B, No 107.
863
864 DEIGISIIO!N''S OF NATIONAL LABOR RELATIONS BOARD
The Trial 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
I. THE BUSINESS OF'THE COMPANY
Frank Pilley & Sons, Inc., is a Delaware corporation, engaged in
the business of processing, selling, and distributing poultry, eggs, and
dairy products. The Company has its general offices in Omaha,
Nebraska, and operates branch plants at Norfolk, Nebraska, Tracy,
Minnesota, Springfield, Missouri, and Sioux City, Iowa. During the
fiscal year from March 1, 1941, to February 28, 1942, the Sioux City,
Iowa, plant of the Company, which is the only plant involved in this
proceeding, purchased raw materials consisting of poultry, eggs,
cream, and milk, valued at $3,728,000, of which approximately 25
percent was transported to the Sioux City plant from points outside
the State of Iowa. During the same period, the total sales of the
Sioux City plant amounted to $3,802,000, of which approximately 94
.percent. was shipped from the plant to purchasers outside the State
of Iowa. The Company admits that it is engaged in commerce within
the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
0
Local Union .#773 of The International Union of Operating En-
gineers is a labor organization, affiliated with the American Federa-
tion of Labor, admitting to membership employees of the Company.
United Packinghouse Workers of America, Local #135, P. W. O. C.,
is a labor organization, affiliated with the Congress of Industrial
Organizations, admitting to membership employees, of, the ,Company.
III. THE QUESTION CONCERNING REPRESENTATION'
i
On or about October 31;1942, the Engineers requested the'Companyi'
to recognize it as the' bargaining -representative of the'- operating!
engineers employed at the Sioux City plant. The Company refused •toi
grant such recognition on the ground that it,has a collective bargain-
ing contract with the-P. W., OX.' covering all production and main-
tenance employees of the-Company, including the operating, engineers.
The contract, by its terms, became; effective ;as of June 16; 1941;iand1
provided that it, should remain in effect until, January 15, 1943, and
",from, year, to, year thereafter ;unless notice in writing of k desire to'
amend or terminate said agreement' is. given by 'either party to :the'
other at least 30 days before the expiration date." - `Neither' party
gave notice of a desire to amend or terminate the contract prior to
I -FRANK PILLEY & SONS, INC . 865
January 15, 1943. Since the Engineers made its demand and filed
its petition herein more than 30 days prior to the termination date,
however, we find that the contract is not a bar to a determination of
representatives.'
A statement of the Regional Director, introduced in evidence at
the hearing, indicates that the Engineers represents a substantial
number of employees in the unit which it alleges is appropriate.2
We find that a question affecting commnierce 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; THE DETERMINATION OF REPRESENTATIVES
The Engineers contends that the operating engineers employed by
the Company at the Sioux City, Iowa, plant comprise an appropriate
bargaining unit. The P. W. O. C., on the other hand, argues that the
history of collective bargaining on a plant-wide basis militates against
establishing a separate unit for the operating engineers. The Com-
pany takes no position with respect to the appropriate unit.
The record discloses a history of collective bargaining between
the Company and the P. W. O. C. on a plant-wide basis since April
30, 1941, at which time the P. W. O. C. won a consent election among
the-Company's production and maintenance employees, including the
operating engineers. On the other hand, it is undisputed that all
the operating engineers employed at the Sioux City plant 3 have been
members of the Engineers since on or before April 25, 1941, and that
none of them participated in the consent election of April 30, 1941.
In addition, the operating engineers work in a building - which is
separate from other plant operations and comprise the staff of the
Plant's powerhouse which generates the power for the entire plant.
"Their work is of a skilled and technical nature and each operating
engineer is required by municipal ordinance to -be licensed.
Under the circumstances, we are of the opinion that the operating
engineers may properly constitute a separate bargaining unit or be
included in a single unit with the production and maintenance em-
ployees. Inasmuch as the considerations are evenly balanced, we shall,
permit the desires of these employees to be controlling in our deter-
mination of the type of unit through which they shall bargain. Ac'
'See Matter of Pressed Steel Car Company, Ine and Steel lVoi1crs O;ganizwiy Coia-
mittec, 41 N. L. R B. 6.
2 The report of the Regional Director states that the Engineers submitted to him its
union ledger which contains the names of its dues-paying members ; that four of the names
appearing thereon are the names of persons whose names appear on the Company's pay
roll of January 21, 1943, which pay roll contains the names of four persons in the alleged
appropi late unit
3 The Company employed four operating engineers at the Sioux City plant as of the date
of the hearing.
313024-43-vol 47-35
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cordingly, we shall make no final determination of the appropriate
unit at this time, but shall direct an election among the operating en-
gineers, employed by the Company to determine whether or not they
desire to be represented by Local Union #773 of The International
Union of` Operating Engineers, affiliated with the American Federa-
tion of Labor.' If the ,majority of these employees select the
Engineers, they shall constitute a separate unit for bargaining
purposes; otherwise, the petition will be dismissed and the operating
engineers will remain a part of the industrial unit.
The Engineers desires to exclude the supervisor of the power plant
from the unit. Inasmuch as he is in charge of the powerhouse and
has, supervision over the remaining employees in the proposed unit,
we shall exclude him.
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 2, as amended, it is
hereby -
DIRECTED that, as part of the investigation to ascertain representa-
tives for 'the purposes of collective bargaining with the Sioux' City,
Iowa, plant of Frank Pilley & Sons, Inc., Omaha, Nebraska, an elec-
tion by secret ballot shall be conducted as early as possible, but not
later than thirty (30) days from the date of this Direction of Elec-
tion, under the direction and supervision of the Regional Director
for the Eighteenth Region,. acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Section
10, of said Rules and Regulations, among the operating engineers who
were employed by the Company during the pay-roll period immedi-
ately preceding the date of this Direction of Election, including em-
ployees who did not work during such pay-roll period because they
were ill or on vacation or temporarily laid off, and including em-
ployees in the armed forces of the United States who present them-
selves in person at the polls, but excluding the powerhouse supervisor
and employees *ho have since quit or been discharged for cause, to
determine whether or not they desire to be represented by Local ^ Union
#773 of The International Union of 'Operating Engineers, affiliated
with the American Federation of Labor, for the purposes of col-
lective bargaining.
4 We shall not afford the P. W 0 C a place on the ballot , since it stated at the hearing
that it did not desire to participate in any election directed among the operating engineers.