Seymour Packing Company

National Labor Relations Board - Board Decisions

May 18, 1939

12 N.L.R.B. 1098 (N.L.R.B. 1939)

In the Matter Of SEYMOUR PACKING COMPANY and AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL No. 176,
AFFILIATED WITH THE A. F. OF L.
Case No. R-1180.-Decided May 18, 1939
Poultry Processing and Distributing lvdnstry-Invcstzgatioa of Representa-
tives: controversy concerning representation of employees : refusal of employer
to recognize petitioning union as representative of all its employees ; controversy
concerning appropriate unit-Unit Appropriate for Collective Bargaining: pro-
duction employees , excluding clerical and supervisory employees , truck drivers,
and seasonal employees-Representatives : proof of choice : comparison of pay roll
with union petition-Certification of Representatives : upon proof of majority
representation.
Mr. Henry H. Foster, Jr., for the Board.
Kline, Balfour, Cosgrove cQc Jeffrey, of Topeka, Kans., for the
Company.
Mr. W. L. Stout and Mr. Earnest Corber, of Topeka, Kans., for the
Union.
Mr. William P. Wysong, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On September 6, 1938, Amalgamated Meat Cutters and Butcher
Workmen of North America, affiliated with the A. F. of L., herein
called the Union, filed with the Regional Director for the Seventeenth
Region (Kansas City, Missouri) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Seymour Packing Company, Topeka, Kansas, herein called
the Company, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On January 3, 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,
12 N. L. R. B., No. 108.
1098
SEYMOUR PACKING COMPANY 1099,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice.
On January 9, 1939, the Regional Director issued a notice of hear-
ing, a copy of which was duly served upon the Company and upon
the Union. Pursuant to notice, a hearing was held on January 16,
1939, at Topeka, Kansas, before J. J. Fitzpatrick, the Trial Examiner
duly designated by the Board. The Board and the Company were
represented by counsel, the Union by its representatives. All parties
participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded to 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.
After the hearing, the Union and the Company filed briefs with
the Board, which have been considered.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY 1
Seymour Packing Company is a Kansas corporation engaged in the
business of buying, processing, and distributing poultry products,
and merchandising flour, feed, sugar, and farm supplies. Its prin-
cipal business, however, is the processing of poultry and eggs. It has
its principal office and plant at Topeka, Kansas, with branches and
sales representatives in several other cities. This proceeding is con-
cerned only with the Topeka plant of the Company.
Over 95 per cent of the products and merchandise that the Company
buys, processes, and distributes in its Topeka plant are transported in
interstate commerce to points outside the State of Kansas. The Com-
pany stipulated that its operations at Topeka, Kansas, have a close,
intimate, and substantial relation to trade, traffic, and commerce among
the several States; and that it is engaged in commerce within the
meaning of Section 2 (6) and (7) of the National Labor Relations
Act.
H. THE ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North
America, Local 176, is a labor organization affiliated with the Ameri-
1 These findings are based on stipulated facts
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can Federation of Labor admitting to membership all production em-
ployees of the Company, excluding supervisory and clerical employees.
III. THE QUESTION CONCERNING REPRESENTATION
On August 18, 1937, the Company entered into a contract with the
Union, as the sole bargaining agent of its production employees for
the period of 1 year. At the expiration of this contract, on August
18, 1938, a conference was held and the Union proposed a new con-
tract. At the conference the Company stated that it did not desire
to enter into a new contract until an election was held, as it was not
satisfied that the Union represented a majority of the production em-
ployees at its Topeka plant, including seasonal employees and truck
drivers. The Union did not consider the seasonal employees to be
within the appropriate unit. At the hearing the Company claimed
that the Union did not represent a majority of the employees, regular
and seasonal, in the appropriate unit.
We find that a question has arisen concerning 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
The Union claimed that the appropriate unit should consist of
all production and maintenance employees, excluding clerical and
supervisory employees, seasonal employees, and truck drivers. The
Company claimed that all employees, excluding clerical and super-
visory employees, should be included in the appropriate unit.
The Company has in its production department regular and sea-
sonal employees. The former are experienced workers, regularly em-
ployed, and are transferred as needed from one department to an-
other. In the early spring, usually about the first of March, the
egg and chicken business increases and it is necessary for the Com-
pany to hire approximately 200 extra egg breakers, candlers, and
chicken pickers. Their employment may last from 2 to 4 months
depending upon the length of the season. After that season the
SEYMOUR PACKING COMPANY 1101
1 egular force is maintained, until turkey-picking time, which is from
November 1 to 10, during which time 10 to 15 additional employees
.are hired. These seasonal employees work principally in the candling
and breaking department, and to a small extent in the picking depart-
ment. Their duties are practically the same as those of the regular
employees in these departments, although they receive approximately
2 to 5 cents an hour less than the regular employees.
The maximum working period each year for the seasonal employees
is 4 months, although many of them obtain employment for only
lesser periods, and in the past they have had to make new applica-
tions for employment each year. The Company claims that from 60
to 70 per cent of the seasonal employees return each year, but for the
-3-year period preceding the hearing only about 40 per cent of the
workers in this group were reemployed each year. By reason of their
temporary status they are not eligible for either group insurance or
annual vacations as are the regular production workers.
The Union has not solicited the seasonal employees for membership
because, the short duration of their employment has not provided the
same incentive for organization as in the case of regular workers. As
far as the record discloses the seasonal workers as a group have mani-
fested no interest in organization and the Company has sought to
invoke their aid in opposing the organizational efforts of the regular
employees.2
There is a conflict as to whether or not the August 18, 1937, contract
between the Company and the Union and the proposed contract sub-
mitted by the Union on August 18, 1938, covered the seasonal em-
ployees. The Company asserts that they did, while the Union insists
that they did not.3 We do not find it necessary to pass upon that
2 Superintendent Rose of the breaking department testified that he had called on various
seasonal employees at the time the Union 's petition of August 18, 1938, was being circulated
and advised them "not to affix their signature to anything they didn ' t understand."
2 The Company , in support of its position, relies on paragraphs 1 and 6 of both the
August 18, 1937, contract and the proposed contiact of August 18, 1938.
Paragraph I of the August 18, 1937, contract provides as follows.
"To recognize Local No 201, Amalgamated Meat Cutters and Butcher Workmen of
North America as the sole bargaining agency of all the employees of the Party of the first
part during the teim of this contract: Provided , that nothing herein shall limit or in any
manner prevent party of the first part from consummating employment contracts with any
individual employee upon such tei ins and conditions as may be satisfactory to part [sic]
of the first part and said individual employee ;"
Paragraph 1 of the proposed August 18 , 1938 , contract provides as follows:
"To recognize [ sic] local No 176 Amalgamated Meat Cutters and Butcher Workmen of
North America [ sic] as the sole bargaining agency of all the employees of the party of the
first part during the term of this contract "
Paragraph 6 of the August 18, 1937 , contract provides as follows
"Where the employee is qualified to do the work available the principles of seniority
[sic] shall prevail below the grade of department foreman Seniority to begin at the time
of employment and not to be disturbed by reason of lay-off due to slack periods , but em-
ployees so laid off shall be called back in their respective order of seniority, except in
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue for the purpose of this decision since we regard other factors
as controlling.
While there is a substantial similarity in the nature of the work
and many of the incidents of employment of both the regular and
seasonal employees, the relative brevity of the latter's normal tenure
of employment definitely differentiates their interests from those of
the regular employees.' The petitioning union, which is the only
labor organization here involved, does not desire the inclusion of the
seasonal employees. Accordingly, we shall exclude the seasonal
employees from the bargaining unit.
The Union seeks exclusion of the truck drivers from the appro-
priate unit on the ground that they are subject to the jurisdiction of
the International Brotherhood of Teamsters, another labor organiza-
tion affiliated with the American Federation of Labor. The Company
desires that they be included in the appropriate unit.
The truck drivers are engaged primarily in trucking operations in
connection with the Company's business although occasionally they
do some maintenance work around the plant. The record does not
disclose the number of truck drivers on the pay roll or the rate of
their compensation. The record reveals no clear history of collective
bargaining in their behalf.
Since their work differs from that of the production employees and
they are eligible to membership in another labor organization, and
emergencies and provided further that seniority shall not apply to the following except
in their respective departments City sales department Premium Poultry Products depart-
ment, engine room and shop department , and all female employees , seniority shall not
apply to job of night watchman , except as between night watchmen."
Paragraph 6 of the August 18, 1938. contract provides as follows :
"where t"e employees [ sic] is quahiled to do the work available [sic ] the principles of
seniority shall prevail below the grade of plant supervisor Provided [sic] the employee has
worked seven months or more and considered a reau'ar employee , Seniority [ sicl to beein at
the time of last employment and not to be disturbed by reasons of layoff [sic] due to
slack period , but employees so laidof [ sic] shall be called back in their respective order
of seniority , except in emergencies and provided further that seniority shall not apply to
the following except in their respective departments , City Sales Department , [sic],
Premium Poultry Department , Engine Room, and shop And [sic] all Female [sic] em-
ployees who work Seven Months [sic] or more in the plant . Seniority shall not apply to
night watchmen except as between night watchman [sic] "
The Company maintains that the phrase "all of the employees" in each Paragraph 1
meant both regular and seasonal employees The Union contends that the phrase was
interpreted to mean only the regular employees The Company urges that a grievance of
one of the seasonal employees was handled by the Union under the terms of the August 18,
1937 , contract . The Union admits that such a grievance was handled but explains that
it was not done pursuant to the teams of the contract but rather that an adjustment was
sought in that single instance because of personal friendship between the aggrieved em-
ployee and the chairman of the union grievance committee The Union further asserts
that in order to eliminate the controversy as to the employees covered by the contract, it
specifically sought to provide in Paragraph 6 of the proposed August 18, 1938 , contract
that only regular employees who had worked 7 months or more should be affected by the
seniority rule.
4 See Matter of Bishop & Co, Inc., and United Cracker, Bakery and Confectionery
Workers Local Industrial Union No. 212 . 4 N. L. R. B 514.
SEYMOTTR PACKING COMPANY 1103
the petitioning union does not desire their inclusion in the unit, we
will exclude them.5
We find that the production employees of the Company at its
Topeka, Kansas, plant, excluding clerical and supervisory employees,
truck drivers, and seasonal employees, constitute a unit appropriate
for the purposes of collective bargaining and that said unit will
insure to the employees of the Company the full benefit of their
right to self-organization and to collective bargaining, and other-
wise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The Company submitted in evidence a list of all employees, regular
and seasonal, in the production department of its plant as of Decem-
ber 31, 1938. This list shows the number of weeks each worker was
employed during each year from 1935 through 1938. Since none of
the seasonal employees worked more than 4 months in 1938, we have
used an employment period of 18 weeks as a basis for determining
whether each employee is a seasonal or regular worker. The Decem-
ber 31, 1938, list shows that 106 of these employees worked for a
period of 18 weeks or more in 1938.
The Union submitted in evidence a petition dated August 18, 1938,
signed by 67 production employees designating the Union as their
collective bargaining agent. The signatures to the petition were not
challenged by the Company. A comparison of the names appearing
on the petition with the names on the list submitted by the Company
shows that a total of 63 of the 106 employees who worked for a
period of 18 weeks or more in 1938 appear on both the petition and
the list. It is therefore apparent that the Union represents a ma-
jority of the regular production employees in the appropriate unit.
We find that the Union has been designated and selected by a ma-
jority of the employees in the appropriate unit as their representative
for the purposes of collective bargaining. It is, therefore, the ex-
clusive representative of all the regular production employees in such
unit for the purposes of collective bargaining, and we will so certify.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
5Trark drivers ( chauffeurs or teamsters) have often been excluded by the Board from
units of production and maintenance employees Matter of Cudahy Packing Company and
Packing Houee Workers Union Local No. 5, Amalgamated Meat Cutters and Butcher
Workmen o f North America, 4 N L R B 39; and Tietfen and Lang Dry Dock Co and
Industrial Union of Marine and Shipbuilding Workers of America, 5 N L R B 20;
Matter of Armour & Company and United Packing Houee Workers Industrial Local Union
No. 389, Affiliated with C L 0., 7 N. L R. B 710; Matter of Armour & Company and
Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 235, 10
N L R. B. 912.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CoNCLusIONs OF LAW
1. A question affecting commerce has arisen concerning represen-
tation of employees of Seymour Packing Company, at its Topeka,
Kansas, plant, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. All production employees excluding clerical and supervisory
employees, seasonal employees, and truck drivers, constitute a unit
appropriate for the purposes of collective bargaining, within the-
meaning of Section 9 (b) of the National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
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 1, as amended,
IT Is HEREBY CERTIFIED that Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 176 (affiliated with the A. F. of L.),
has been designated by a majority of the production employees of
Seymour Packing Company, at its Topeka, Kansas, plant, excluding
clerical and supervisory employees, seasonal employees, and truck
drivers, as their representative for the purposes of collective bar-
gaining and that, pursuant to the provisions of Section 9 (a) of the
Act, Amalgamated Meat Cutters and Butcher Workmen of North
America, Local 176, is the exclusive representative of all such em-
ployees for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, and other conditions of
employment.