Kingan & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1941

37 N.L.R.B. 716 (N.L.R.B. 1941)

In the Matter Of KINGAN & CO., INC. (PouLTRY DIVISION ) and PACK-
INGHOUSE WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE
C.I.O.
Case No. R-3317-Decided December 17,1941
Jurisdiction : poultry packing industry.
Investigation and Certification of Representatives : existence of question:
refusal of Company to accord union recognition ; conflicting claims of rival
representatives ; contract automatically renewed by its terms after notice of
claim to representation by rival union, no bar to; seasonal employees, who work
approximately one-third as much as regular employees, but who perform
an indispensable part of the Company's operations, and who have been in-
cluded in past collective bargaining, held, eligible to vote ; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees in the poultry division of the Company, excluding supervisory and
clerical employees ; agreement as to.
Mr. Burrell Wright, of Indianapolis, Ind., for the Company.
Mr.,, David Harmon and Mr. -Thomas, Wilson, of Indianapolis, Ind.,
for the P. W. O. C.
Mr. Paul E. Martin, of Indianapolis, Ind., for the Meat Cutters.
Mr. William H. Bartley, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 12,1941, the Packinghouse Workers Organizing Com-
mittee, affiliated with the Congress of Industrial Organizations, herein
called the P. W. O. C., filed with the Regional Director for the
Eleventh Region (Indianapolis, Indiana) a petition alleging- that a
question affecting commerce had arisen concerning the representation
of employees of Kingan & Co., Inc. (Poultry Division), Indianapolis,
Indiana, 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
October 9, 1941, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of the Act and Article III,
37 N L. R. B., No. 115.
716
KINGAN & CO., INC. 717
Section 3, of National Labor Relations Board Rules and Regulations-
Series 2, as amended, ordered an investigation and authorized the
Regional,Director ,to conduct it and' to, provide fo'r ,an appropriate
hearing upon due notice.
On October 15, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the P. W. O. C.,
and Amalgamated Meat Cutters & Butcher Workmen of North Amer-
ica, Local No. 101, affiliated with the American Federation of Labor,
herein called the Meat Cutters, a labor organization claiming to rep-
resent employees directly affected by the investigation. Pursuant
to notice, a hearing was held on October 28, 1941, at Indianapolis,
Indiana, before Arthur R. Donovan, the Trial Examiner,duly des-
ignated by the Chief Trial Examiner. The Company, the P. W. O. C.,
and the Meat Cutters were represented and participated in the hear-
ing. Full opportunity to be hard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties. During the course of the hearing, the Trial Examiner
made several rulings on motions and on objections to the admission of
evidence. The Board has reviewed 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
1. THE BUSINESS OF THE COMPANY
The Company is a New Jersey corporation which operates, directly
and through subsidiaries, a meat-packing plant 'and poultry division
at Indianapolis, Indiana, -and 2 other meat-packing- plants 'and ' 11
wholesale meat-distributing houses located at various points through-
out the United States. This case is concerned only 'with the poultry
division at Indianapolis. The Company admits that it is engaged in
interstate commerce within the meaning of the Act.,
H. THE ORGANIZATIONS INVOLVED
Packinghouse Workers Organizing Committee is a labor, organiza-
tion, 'affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the Company.
Amalgamated Meat Cutters & Butcher Workmen of North' America,
Local No. 101, is a labor organization affiliated with the American
lA=stipulation signed by the Company and the Board's- Regional Attorney introduced in
evidence, recites that no substantial change has occurred in the Company 's business since
the Board's Decision and Direction of Election in Matter of %ingan & Co , Inc and United
Meat Packing Workers Local Industrial Union No. 117, 12 N . L R. B. 1327.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federation of Labor, admitting' to membership' employees of -the
Company. -
III. THE QUESTION CONCERNING REPRESENTATION
On September 30, 1939, the Company and the Meat Cutters entered
into a contract providing for recognition of the Meat Cutters as the
exclusive representative of the employees in the poultry division. The
contract specified that it was to remain in effect until October 1, 1940,
and for 1-year periods thereafter unless either party gave notice of
a desire to modify the agreement at least thirty (30) days prior to the
expiration date. Since neither party gave the requisite notice, the
contract was automatically renewed on October 1, 1940, to remain in
effect until October 1, 1941. On August 29, 1941, the P. W. O. C. re-
quested that the Company bargain with it as exclusive representative
of the employees in the poultry division. The Company failed to
reply to this request.
The Meat Cutters contends that its contract with the Company
was renewed for another year on October 1, 1941, and that it should
be a bar to a present determination of representatives by the Board.
However, the Company stated at the hearing that in view of the con-
flicting claims of the two unions, it was merely operating under the
contract with the Meat Cutters "from day to day" until the question
concerning representation was determined by the Board. In addi-
tion, the Company was notified of the P. W. O. C.'s claim to represent
a majority before the contract was renewed. Under the circum-
stances, we hold that the contract is not a bar to this proceeding.2
A statement by the Regional Director, introduced in evidence,
shows that' the P. W. O. C. represents a substantial number of
employees in the unit hereinafter found to be appropriate.3
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 Com-
pany described in Section I above, has, a close, intimate, and sub-
stantial 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.
2 See Matter of Utica Knitting Company and Textile Workers Federal Labor Union
# 21,500, A. F. o f L., 23 N. L. R. B. 55.
a The Regional Director's statement shows that the P. W. O. C. submitted 33 application
cards dated in August and September 1941, bearing apparently genuine signatures of per-
sons whose names appeared on the Company's pay roll of 'September 6, 1941 . There were
36 names on the pay roll.
I
-KINGAN & CO., INC.- 719
V. THE APPROPRIATE UNIT
The parties agree, and we find, that all production and mainte-
nance employees of the Company in the poultry division, excluding
supervisory and clerical employees, constitute a unit appropriate for
the purposes of collective bargaining. We further find that such
unit will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and otherwise
will effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find .that the question concerning representation which has
arisen can best be resolved by an election by secret ballot.4
The Meat Cutters contends that 23 production employees, identified
as chicken pickers, are temporary employees and should not be eligible
to vote in the election. The Company and the P. W. 0. C. oppose
this contention. The chicken pickers perform a necessary and
indispensable part of the Company's poultry business. The amount
of their work varies with seasonal fluctuations in the poultry business.
Most of the pickers worked more than 400 hours during the past
9 months; other employees in the poultry division worked approxi-
mately 1400 hours during that period. The chicken pickers were
included in the contract between the Meat Cutters and the Company,
and the Meat Cutters have bargained for them on grievances and
rates of pay' in the past 2 years.' Under all the circumstances, we
are of the opinion, and find, that the- chicken pickers "should be
permitted to vote in the election.
We shall direct that those eligible to vote in the election shall be
the employees in the appropriate unit who were employed by the
company during the pay-roll, period immediately preceding the
date of the Direction of Election-herein, subject to the limitations
and additions set forth in the Direction.
, 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 Kingan & Co., Inc. (Poultry Division),
* The Meat Cutters introduced no evidence of membership among the employees of the
,Company, relying on its contract with the Company.
Although the Meat ,Cutters introduced no evidence of membership among the employees
of the Company , we shall, in view of its contract with the Company , provide a place for the
Meat Cutters on the ballot.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indianapolis , Indiana , within the meaning of Section 9 (c) and
Section 2 ( 6) and (7) of the National Labor Relations Act.
2. All' production and maintenance employees in the poultry divi-
sion , excluding supervisory and clerical employees , constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 ( b) of the 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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as - amended, it is
hereby
DiREOTED that , as part of the investigation authorized by the Board
to. ascertain , representatives for the - purposes of collective bargaining
with Kingan & Co ., Inc. (Poultry Division ), Indianapolis , Indiana,
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 of
Election, under the direction and supervision of the Regional Director
for the Eleventh Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Article III, Section 9,
of said Rules and Regulations , among all production and maintenance
employees in the poultry division of the Company •employed during
the pay-roll period immediately preceding the date of this Direction
of Election , including employes who did not work during such pay-
roll period because they were ill or on vacation , or in the active
military service, or training of the United " States, or temporarily laid
off, bu't-excluding supervisory- and. clerical•'empldyees ; "a"nd'Ten ployees
who have since quit or been discharged for cause , to determine whether
they desire to be represented by Packinghouse Workers Organizing
Committee , affiliated with the C. I. 0., or by Amalgamated Meat
Cutters & Butcher Workmen of North America, Local No. 101, afili-
ated ' with the A. F. of L ., for the purposes of collective bargaining,
or by neither.