Kingan & Co., Incorporated

National Labor Relations Board - Board Decisions

May 27, 1939

12 N.L.R.B. 1327 (N.L.R.B. 1939)

In the Matter of KINGAN & CO., INCORPORATED and UNITED MEAT
PACKING WORKERS LOCAL INDUSTRIAL UNION No. 117
Case No. R-137'1.Decided May 27, 1939
Meat Packing Industry-Investigation of Representatives : controversy con-
cerning representation of employees : rival organizations ; refusal by employer
to recognize either of the unions involved as the exclusive representative of em-
ployees-Contract : no bar to investigation or certification of representatives,
where requisite notice given preventing an automatic renewal and petition filed
prior to time for renewal-Unit Appropriate for Collective Bargaining : produc-
tion employees excluding supervisory , clerical , and salaried employees ; agreement
as to-Electeon Ordered
Mr. Colonel C. Sawyer, for the Board.
White, Wright c Boleman, by.Jlr. Burrell Wright, of Indianapolis,
Ind., for the Company.
Mr. James Robb, of Indianapolis, Ind., for the United.
Mr. Redmond S. Brennan, of Kansas City, Mo., for the Amal-
gamated.
Mr. Ralph Winkler, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 1, 1939, United Meat Packing Workers Local Industrial
Union No. 117, herein called the United, filed with the Regional Di-
rector for the Eleventh Region (Indianapolis , Indiana ) a petition
alleging that a question affecting commerce had arisen concerning the
representation of employees of Kingan & Co., Incorporated , herein
called the Company, at its Indianapolis, Indiana, plant, and request-
ing 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 April 15, 1939, the National Labor Relations
Board , herein called the Board , acting pursuant to Section 9 (c) of
the Act and Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series 1, as amended , ordered an investigation
12 N. L . R. B., No. M.
1327
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
On April 22, 1939, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the United,
and upon Amalgamated Meat Cutters and Butcher Workmen of North
America, Local Union No. 165, herein called the Amalgamated, a
labor organization claiming to represent employees directly affected
by the investigation. Pursuant to the notice, a hearing was held on
May 4, 1939, at Indianapolis, Indiana, before Mapes Davidson, the
Trial Examiner duly designated by the Board. The Board, the Com-
pany, and the Amalgamated were represented by counsel and the
United by a representative; all participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues, was afforded all parties.
At the beginning of the hearing the Trial Examiner granted the
Amalgamated's Motion to Intervene in the proceeding. At the con-
clusion of the hearing the Trial Examiner denied a motion made by
the Amalgamated to dismiss the petition. During the course of the
hearing the Trial Examiner made several rulings on other motions
and on objections to the admission of evidence. The Board has re-
viewed 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
I. THE BUSINESS OF THE COMPANY
The Company is a New Jersey corporation engaged in the meat-
packing business, including slaughtering, packing, curing, processing,
and sale of meats, meat products, and byproducts. Directly and
through subsidiaries, it operates 3 meat-packing plants at Indian-
apolis, Indiana, Richmond, Virginia, and Storm Lake, Iowa, and 11
wholesale meat-distributing houses located at various points through-
out the United States. This case is concerned only with the em-
ployees at the Company's Indianapolis, Indiana, plant. During the
fiscal year ending October 29, 1938, the Company purchased and
slaughtered at this plant over 920,400 animals, having a total value
of approximately $20,387,384. Approximately 95 per cent of this
livestock originated from points within the State of Indiana. Dur-
ing the same fiscal period the Company processed and shipped from
its Indianapolis plant approximately 240,395,490 pounds of products,
having a total value of about $33,790,085. About 90 per cent of these
products were shipped to points outside the State of Indiana.
KINGAN & CO., INCORPORATED
II. THE ORGANIZATIONS INVOLVED
1329
United Meat Packing Workers Local Industrial Union No. 117 is a
labor organization affiliated with the Congress of Industrial Organ-
izations. The precise limits of its jurisdiction do not appear in the
record.
Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica, Local Union No. 165, is a labor organization affiliated with the
American Federation of Labor. The precise limits of its jurisdiction,
do not appear in the record.
III. THE QUESTION CONCERNING REPRESENTATION
A consent election was conducted under the supervision of the,
Board's Regional Director among the Company's employees on April
25, 1938. The Amalgamated received the majority of the votes cast,
and on May 15 it entered into a closed-shop contract with the Com-
pany. The United claims that it now represents a majority of the
Company's employees.
Paragraph 20 of the contract provides as follows :
This agreement shall be and remain full force and effect (sic)
until and including May 15,1939, and for renewal periods of one
year thereafter unless notice in writing is served by either of
the parties hereto upon the other stating its desire to modify or
terminate the same thirty days prior to the expiration of the
agreement or thirty days prior to the expiration of any subse-
quent one year period.
By a letter dated March 20, 1939, the Amalgamated notified the Com-
pany of its desire to modify the contract. Negotiations regarding pro-
posed changes are now pending between the Company and the Amal-
gamated. The Company is unwilling to sign any new agreement,
however, until the present proceeding is determined by the Board.
The Amalgamated and the Company contend that the contract by
its own terms has been automatically renewed and that the letter giv-
ing notice of a desire to modify did not constitute a termination of the
contract. The United, on the other hand, urges that this letter effected
the termination of the contract. Not only does it appear that the req-
uisite 30 days' notice was given by the Amalgamated, thus prevent-
ing an automatic renewal of the contract after May 15, 1939, but it
appears also that the filing of the United's petition antedated this 30-
day period.,, Under these circumstances the agreement does not pre-
1 See Matter of Unit Cast Corporation and Steel Workers Organizing Committee, 7-
N. L. R. B. 129.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elude the Board from investigating and determining representatives
in this case.
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 Company described
in Section I above, has a close, intimate, and substantial 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.
V. THE APPROPRIATE UNIT
At the hearing the parties agreed to adopt as appropriate the unit
.embodied in the agreement for the consent election referred to above.
It consists of all production employees except supervisory, clerical, and
-salaried employees. No reason appears for altering the agreed unit.
We find that the production employees of the Company, excluding
-supervisory, clerical, and salaried employees, constitute a unit appro-
priate for purposes of collective bargaining and that said unit will in-
sure to employees of the Company the full benefit of their right to self-
organization and to collective bargaining and will otherwise effec-
tuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The United offered in evidence approximately 168 union authoriza-
tion cards, approximately 140 of which were signed after April 25,
1938, the date of the consent election. It was testified that between
•600 and 700 United membership application cards, all of which were
signed after the consent election, were stolen from the United's offices
on August 28, 1938, and that the alleged culprit later confessed this
-theft at a hearing and was found guilty of a charge of petty larceny.
The cards were never recovered. Petitions requesting an election,
which were circulated since August 1938, were also offered in evidence.
Approximately 285 names appear on these petitions.2 The United
-also alleges that many employees desirous of joining that organiza-
-tion have been hesitant to do so because of the closed-shop contract
between the Amalgamated and the Company. The Amalgamated
'Although all the signers of these petitions were employed at the date of signing, not
.all of them are now employed by the Company.
KINGAN & CO., INCORPORATED 1331
states that its membership rolls include practically all of the em-
ployees here involved.
In view of all the circumstances, we find that the question which
has arisen concerning the representation of employees of the Com-
pany can best be resolved by the holding of an election by secret ballot.
At the hearing the Company's April 29, 1939, pay roll was intro-
duced in evidence. We see no objection to using this pay roll to
determine eligibility to vote in the election. Accordingly we shall
direct that employees eligible to vote in the election shall be those in
the appropriate unit who were on the Company's April 29, 1939, pay
roll, but excluding those who have since quit or have been discharged
for cause.
On the basis of the above findings of fact and upon the entire rec-
ord 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., Incorporated, at its Indian-
apolis, Indiana, plant, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. The production employees at the Company's Indianapolis plant,
excluding supervisory, clerical, and salaried employees, constitute a
unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations 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, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, it is hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective
bargaining with Kingan & Co., Incorporated, at its Indianapolis,
Indiana, plant, an election by secret ballot be conducted within fifteen
(15) days from the date of this Direction of Election, under the direc-
tion and supervision of the Regional Director for the Eleventh Re-
gion, acting in this matter as agent for the National Labor Relations
Board, and subject to Article III, Section 9, of said Rules and Regu-
lations, among the production employees whose names appear on the
Company's April 29, 1939, pay roll, including employees who did not
work during such pay-roll period because they were ill or on vacation,
169134-39-vol. 12-95
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding supervisory, clerical, and salaried employees and all em-
ployees who have since quit or have been discharged for cause, to
determine whether they desire to be represented for the purposes of
collective bargaining by United Meat Packing Workers Local Indus-
trial Union No. 117, affiliated with the Congress of Industrial Organi-
zations, or by Amalgamated Meat Cutters and Butcher Workmen of
North America, Local Union No. 165, affiliated with the American
Federation of Labor, or by neither.