Harry Manaster & Bro.

National Labor Relations Board - Board Decisions

Feb 28, 1945

60 N.L.R.B. 979 (N.L.R.B. 1945)

In the Matter of HARRY MANASTER & BRO., AND UNITED PACKERS,
INC. and UNITED PACKINGHOUSE WORKERS OF AMERICA, LOCAL 277,
C. I. O.
Case No. 13-R-2712.-Decided February 28, 1945
Gottlieb & Schwartz by Messrs. William J. Friedman and Harry
Schulman, of Chicago, Ill., for Manaster and United.
Miss Virginia Spence and Messrs. Peter Brown and Herbert March,
of Chicago, Ill., for the CIO.
Mr. John Gavin, of Chicago, Ill., for the Engineers.
Mr. Bernard Goldberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Packinghouse
Workers of America, Local 277, C. 1. 0., herein called the CIO, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Harry Manaster & Bro., and United Fack-
ers, Inc., Chicago, Illinois, herein called respectively Manaster and
United, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Benjamin B. Salvaty, Jr., Trial
Examiner. Said hearing was held at Chicago, Illinois, on January
12, 13, 15, 16, and 17, 1945. Manaster, United, and the CIO, appeared
and participated:' All parties were afforded full oportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. At the hearing Manaster moved to dis-
miss the petition. For reasons stated hereinafter, the said motion
is hereby denied. The Trial Examiner's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed. All par-
ties were afforded an opportunity to file briefs with the Board.
'A representative of the International Union of Operating Engineers , Local 899,
A. F. L., herein called the Engineers, appeared at the hearing but did not participate in
the proceeding.
60 N. L. R. B., No. 166.
979
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the, Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
United Packers, Inc., an Illinois corporation, is a wholly owned
subsidiary of Harry Manaster & Bro. and is engaged in the manu-
facture and sale of prepared meats in glass and tin containers. Dur-
ing the year ending November 30, 1944, United purchased for use in
its manufacturing operations, boneless beef, pork, a variety of meat
byproducts, potatoes, onions, spices, cans, glasses, and other products
valued at about $2,800,000, of which approximately 5 percent was
purchased outside the State of Illinois. During the same period,
United sold finished products valued at approximately $3,800,000, of
which about 80 percent was sold to the United States Army. More
than 75 percent of the total sales made to the Army was shipped to
depots outside the State of Illinois. Of the products not sold to
the Army, about 80 percent was conveyed to customers outside the
State.
Harry Manaster & Bro., an Illinois corporation, is engaged in the
business of boning,. smoking, and curing beef. During the year end-
ing November 30, 1944, Manaster purchased for use in its operations
beef valued at about $2,000,000, of which between 5 and 10 percent
was purchased outside the State of Illinois. During the same period
the Company made total sales of its products aggregating about
$2,250,000, of which at least $1,750,000 represented sales to United.
About 1 or 2 percent of the products sold by Manaster were shipped
to firms outside the State of Illinois.
We find, contrary to the contention of Manaster, that both it and
United are individually engaged in commerce within the meaning of
the National Labor Relations Act.'
II. THE ORGANIZATION INVOLVED
United Packinghouse Workers of America, Local 277, affiliated
with the Congress of Industrial Organizations, is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Manaster and United have refused to accede to the CIO's request
that it be recognized as the bargaining representative of their
employees.
2 N. 3, R B . v. Cleveland -Cliffs Iron Co., 133 F. ( 2d) 295 ( C. C A. 6) ; Matter of Ammean
Food Products Corporation, 55 N L. R. B 654 ; Matter of Shore Products Company, 55
N. L. R. B. 431; Matter of Crown Cork & Seal Company, Inc., 53 N. L R . B. 741.
HARRY MANASTER & BRO. 981
A statement of the Trial Examiner introduced into evidence at
the hearing indicates that the CIO represents a substantial number
of employees in the unit hereinafter found appropriate.3
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
The CIO seeks a single unit comprising production and mainte-
nance employees of both Manaster and United, excluding office and
clerical employees, truck drivers, operating engineers and firemen,
and all supervisory personnel. Manaster and United contend that
a single unit covering employees of both companies is inappropriate;
they urge a separate unit for each company to include office and
clerical employees as well as production and maintenance employees,
excluding only truck drivers, operating engineers and firemen, and
supervisory employees.
As previously stated, United is a wholly owned subsidiary of
Manaster. Members of the Manaster family are officials, and direct
'The Trial Examiner reported that the CIO submitted 137 designations ; that the
names on 92 of these cards also appeared on the Companies ' pay rolls as follows :
Number of
Number of
designations Number of Number ofdesignations
Company names onDec 24 1944
of employees
appearing on
employees
working on of employeese
, ,
pay roll Dec 24, 1944 , Dec 24 , 1944 workingDec 24 1944pay roll ,
United----------------------------------- 300 74 190 45
Manaster -------------------------------- 60 18 44 17
Totals----- ------------------------- 360 1 92 234 62
Because of a very heavy turn-over , 500 or 600 percent in the case of United , and the method of keeping
pay-roll records , the pay roll as of any particular date carries the names of many individuals who have
terminated their employment with the companies , the figures for the number of employees working on
December 24 , 1944, represents approximately the number of employees in the employ of the 2 companies
at any one time In view of the abnormally high turn-over among the employees of United, who constitute
at least 75 percent of the employees in the alleged appropriate unit, we are of the opinion that the showing
of representation made by the CIO is sufficient for the purposes of this proceeding Matter of Manhattan
Company, 53 N L R B . 1339 , Matter of Douglas Aircraft Company, Inc , 49 N L It. B 819.
The Trial Examiner properly denied the applications by both United and Manaster for subpoenas duces
tecum requiring the CIO to produce "All membership cards, membership applications , dues, cards and
affidavits of membership " allegedly signed by their employees as well as all correspondence and memoranda
between alleged signers of application cards and CIO representatives The Trial Exammer also properly
denied the application of Manaster for subpoenas directed to two of its employees , who are alleged to have
signed application cards although they are unable to read or write The information sought by these sub-
poenas is immaterial . Matter of Atuseheck Shoe Company , 55 N. L R B 1107 , Matter of Crane Company,
28 N L. R B 756. Authorization cards or membership applications , in a representation proceeding, are
required to be submitted to the Board, not as the basis for determining the bargaining representative, but
as prima facie evidence that the petitioning union has sufficient interest to justify the Board in initiating
its investigatory machinery . Since the evidence is submitted for the sole purpose of aiding the Board in
making an administrative decision, its examination and evaluation rest entirely with the Board , it is not
subject to attack by an opposing party. Matter of Sunset Motor Lines, 59 N. L. R . B. 1434 , Matter of
American Finishing Company, 54 N L . It. B. 996 , Matter of H G. Hill Stores, Inc , Warehouse , 39 N. L.
R. B. 874.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the affairs, of both companies. The two corporations share the same
office and have the same telephone number; while each corporation
has its own office staff, except for the telephone operator who is em-
ployed by Manaster and serves both companies; the employees of one
company help those of the other company when the need arises with-
out any accounting between the companies for the time spent in the
service of the other corporation. I Part of the building occupied by
Manaster is leased to United which also occupies an adjoining build-
ing. By far the greater part of the beef processed by Manaster is
sold to United for use in the latter's operations. The two companies
have the same Department of Agriculture meat inspection number.
The paymaster and personnel manager for United interviews and
refers to Manaster job applicants whom he considers suitable for
duties with the latter. First aid for the employees of both companies
is administered by employees of United. The employees of the two
companies use the same cafeteria facilities. By the terms of a con-
tract between Manaster and United, the former is obligated to render
important management and other services to the latter.'
Although Manaster and United are separate corporate entities, and
maintain separate accounting systems, we are of the opinion that,
because of the integrated character of their operations and their com-
mon ownership and control as well as all other circumstances in the
case, the two companies constitute a single bargaining unit as sought
by the CIO .5
The CIO desires to exclude from the unit and the companies to
include therein, two plant clerical employees who work for United.
4 By the terms of a contract entered into between United and Manaster on January 1,
1937, for a term of 5 years and thereafter orally extended, Manaster agreed to render the
following services for United, viz : - -
(a) To supervise the factory operations , purchases of materials, equipment and sup-
plies, and the sales of manufactured products of UNITED.
(b) To perform certain office work, including office management , keeping of certain books
of account and other records , handling of correspondence, billing, supervising collections
and credits, and to provide the necessary office space and office equipment and facilities
therefor, including telephone, telephone switchboard, electric light, heat and office machines
necessary for handling the office work, and to furnish services of watchmen, provide for
the removal of refuse , elevator inspection , street sprinkling and patrol service, and to
provide platform facilities for loading and unloading.
The contract further provided:
"SIRTH : It is further mutually understood and agreed that the services to be rendered
by MANASTER to UNITED, as hereinabove set forth, will be performed and rendered
by officers and employees of MANASTER concurrently with similar services to be rendered
by such officers and employees in connection with the business conducted and operated by
MANASTER in its own behalf, and that the facilities to be furnished by MANASTER to
UNITED, as bereinabove set forth , are to be used and enjoyed by UNITED jointly and
in common with the use thereof by MANASTER in connection with the conduct by
IANASTER of its own business."
e On November 12, 1941, Manaster and United entered into an "Agreement for Cc sentn
Election" with the International Food-Canning-Packing House Workers of America, Local
43, affiliated with the United States Federation of Labor Organizing Committee, covering
production and maintenance workers of both companies . See Matter of Continental-
Diamond Fibre Company and Haveg Corporation, 59 N. L . R B. 1367 ; Matter of Aaron
Ferer & Sons, Inc. and Wiping Materials, Inc., 53 N. L. R. B. 770:
HARRY MANASTER & BRO. 983
These clerks, former production workers, do some clerical work in
connection with the maintenance of pay-roll and material records but
spend more than half of their time selling coffee, pies, and candies,
distributing overalls to the employees, and administering first aid.
Since they work in close association with the production employees,
and their background, method of compensation, and interests are
similar to such employees, we shall include them in the unit .6
- United has a number of employees who have no pay-roll titles but
are generally referred to as working foremen. The CIO urges that
these employees be excluded from the unit as supervisors, whereas the
Company takes the position that all of them, with the exception of one
Charles Urban, should be included. The working foremen are in
charge of groups of subordinate employees, and while practically all
of their time is spent in doing manual work, it appears that they have
the power effectively to recommend a change in the status of their sub-
olydinates. We find that the working foremen have supervisory au-
thority within the Board's customary definition and we, shall, there-
fore, exclude them from the unit. We shall also exclude the supervisor
of the butchering department at Manaster, who is in charge of about
18 butchers and trimmers and who, we find, enjoys supervisory status
within the Board's definition thereof.
We find that all production and maintenance employees of United
and Manaster, including butchers, trimmers, smoke house employees,
coopers, and plant clerical employees,? but excluding truck drivers,8
operating engineers, and firemen,° office and clerical employees, super-
intendents and assistant superintendents, supervisor of butchering de-
partment at Manaster,10 working foremen,1' and all other supervisory
employees with authority, to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recom-
mend 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 Election
' Matter of Chicago Rawhide Manufacturing Company, 59 N. L. R. B. 1234.
'r Sophia Gomolka and Adeline Wasag.
8 The truck drivers are presently represented by the International Brotherhood of
'Teamsters, Chauffeurs, Warehousemen & Helpers of America.
"The operating engineers and firemen ale now represented by the International Union
of Operating Engineers , Local 399 , A. F. L.
° Groh.
Vito Frettigelo, John Johnson, Charles Urban, Philip Caldia, "Casey," Isabelle Nunize,
Stephanie Wadley, and "Vicki."
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein, subject to the limitations and additions set forth in the..
Direction.12
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 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 Harry Manaster &
Bro., and United Packers, Inc., Chicago, Illinois, 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
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 It, of said Rules and Regula-
tions, 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 said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls, but
excluding any who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the election,
to determine whether or not they desire to be represented by United
Packinghouse `Yorkers of America, C. I. 0., for the purposes of collec-
tive bargaining.
u The CIO's request that its name appear on the ballot as "United Packinghouse Workers
of America, C I. 0 " is hereby granted.