Swift and Co.

National Labor Relations Board - Board Decisions

Apr 29, 1944

56 N.L.R.B. 147 (N.L.R.B. 1944)

In the Matter Of 'SWIFT AND COMPANY and UNITED PACKINGHOUSE
WORKERS OF AMERICA, LOCAL 49-A, C. I. O.
Case No. 2-R-4409.Dieeicled,April 29, 1944
Mr. *John P. Staley, of Chicago, Ill., for the Company.
Mr. Ray Hobbs, of Chicago, Ill., for the Union.
Mrs. Platonia P. Kaldes, of counsel to-the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Packinghouse Workers of
America, Local 49-A, C. I. 0., herein called the Union , alleging that
a question affecting commerce had - arisen concerning the representa-
tion of employees of Swift and Company, Chicago , Illinois, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before John J. Cuneo,
Trial Examiner . Said hearing was held at Jersey City , on February
16, 1944., The Company and the -Union appeared and participated.
All parties were afforded full opportunity to be heard , to examine
and cross -examine witnesses , and to introduce evidence bearing on
the issues . During the course of the hearing , the Company moved to
dismiss the petition on the ground that the alleged unit was in-
appropriate . The'Trial Examiner referred the Motion to the . Board.
For the reasons hereinafter set forth , the motion is denied . _ The Trial
'Examiner 's rulings, made at the hearing ' are free -from prejudicial
error and are hereby affirmed. All parties were afforded an oppor-
tunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following : -
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Swift and Company, an Illinois corporation with its principal place ,
of business at Chicago, Illinois; maintains a branch office and plant
at Jersey City, New Jersey, With which we are concerned ' in this
56 N. L. R. B, No. 30.
147
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceedings. At the Jersey City plant, the Company is engaged in
processing and preparing hogs for sale and distribution as pork and
pork products. During the past year, for its Jersey City plant the
Company purchased hogs valued in excess of $1,000,000, of which
about 90 percent was shipped to it from points outside the, State of
New Jersey. During the same period the Company produced and
processed at its Jersey City plant pork and pork products valued in
'excess of $1,000,000, of which approximately 75 percent was shipped
by it to points outside the State of New Jersey.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Packinghouse Workers of America, Local 49-A, affiliated
with the Congress of Industrial Organizations, is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the exclusive bargaining representative of employees in the alleged
appropriate unit•until the Union has been certified by the Board.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate?
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
As a result of consent election proceedings affecting the Jersey City
plant employees, a coaffiliate of- the Union has been recognized
by the Company as the bargaining representative of the production
and maintenance employees 2 and the Union has been recognized as
the bargaining representative of a unit of watchmen, box pullers, and
a matron. In the instant proceeding the Union seeks to represent
a residual group of employees consisting of the plant clerks, time
and employment office employees, standards department employees
The Regional Director reported that the Union submitted 13 application cards, all of
which bore apparently genuine original signatures ; that the names of all persons appear-
ing on the cards were listed on the Company's pay roll of December 1, 1943, which con-
tained the names of 30 employees in the unit requested by the Union ; and that the cards
were dated as follows : 1 was dated in March 1943, 1 in April 1943, 4 in August 1943, and
7 in November 1943. k
2 By agreement between the parties, a storeroom employee classified as a laborer and a
receiving office employee have also been included in this unit.
SWIFT AND COMPANY 149
(including checkers and time-study employees), storeroom employees,
commissary employees, and the fire marshal, but excluding supervisory
employees. The Company contends that the unit requested by the
Union is inappropriate on the grounds that it is heterogeneous ; that
the majority of the employees the Union seeks to represent either
exercise managerial or supervisory functions, or have access to confi-
dential management records, and that, in any event, the employees
sought to be' represented by the Union should not be represented by
the 'same labor organization that represents the production and
maintenance employees.3
With respect to the work of the categories of employees the Union
seeks to represent herein, the record discloses the following .facts :
Plant clerks.-The Company employs approximately 16 plant clerks.
Four are permanently assigned to 1 production department and work
under the immediate supervision of a chief clerk.' The remaining
12 are permanently assigned to approximately 12 different production
departments and work under the immediate supervision of the foremen
of the respective departments. They keep departmental records of
manufacturing costs, supplies received, shipments made of finished
products, and inventories of raw materials and finished products. In
some instances they also keep records of production employees' time.
They are salaried employees 5 who work approximately-the same num-
ber of hours as other employees in the plant. In the absence of
departmental foremen during vacation and other short periods, the
plant clerks take over those of the foremen's duties having, to do with
the maintenance of adequate supplies in the department which are
necessary to the efficient operation of production work. Although
the Company argues that plant clerks exercise managerial functions
and have access to records available only to supervisory employees,
the evidence establishes that their work is primarily clerical,'- and that
the records to which they have access do not deal with the Company's
labor relations. There is, therefore, no reason to deny them the rights
guaranteed in the Act.7
Time and employment office employees.-The Company employs.
two employees in the time and employment office. They work under
I In the event the Union is certified by the Board as the bargaining representative - of the
employees in the unit requested, the Union intends that such employees be included in
Local 221 , the coaffiliate which now represents the production and maintenance employees.
4 The parties agree that the chief clerk is a supervisory employee.
5 Newly assigned plant clerks serve a probationary period during which they are paid on
an hourly basis . Once they are permamently assigned, they are paid on a salary basis.
°In one or two admittedly extraordinary cases and because of circumstances not nor-
mally present , two plant clerks who had had prior experience as production workers were ,
specifically requested to supervise production workers while the departmental foremen were
-absent for a short period of time. We do not regard this fact of sufficient importance to
warrant a finding that plant clerks are supervisory employees within the meaning of our
customary definition.
7 See Matter of Armour and Company, 49 N. L . R. B. 688, 690.
150 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the direct supervision of a supervisory employee alternately desig-
nated as the head timekeeper and the employment manager. They
keep the time and service records of production employees, compute
the amount of their earnings after deducting miscellaneous items
therefrom, and assist applicants for employment in filling out appli-
cation forms. In connection with applications for employment, they
check the references given by the applicants and submit the infor-
mation to the employment manager. In the absence of the latter,
either of these employees may interview an 'applicant and may also
hire him. We agree with the Company's contention that time and
employment office employees are, to a large extent, identified with
management.
Standards Department employees.-The Company employs three'
time-study employees and eight checkers, all of whom work under the
supervision of the head of the Standards Department.
Time-study employees conduct time and motion studies of all oper-
ations performed in the plant and establish standards of work accord-
ingly, expressed in amounts of production per hour. They are
assigned to desks located in the office of the plant superintendent.
Approximately 50-percent of their time is spent in the plant.making
time studies from actual observation of the production workers. The
.other 50 percent of their time is spent in the office preparing, inter alia,
reports of their observations and written evaluations of the standards
of production. In order to perform their work properly, these em-
ployees must have specialized technical training and a college educa-
tion or its equivalent. They are referred to as industrial engineers.
Although like clerical employees, they are paid on a salary basis, they
receive higher rates of pay. Accordingly, we are of the opinion that
the work of time-study employees is more professional and technical
than clerical and that their interests, background, and qualifications
differ greatly from those of plant clericals.
Checkers record production figures for the use of time-study em-
ployees, observe the production operations and check the amount of
production work performed by applying the standards set by the time-
study employees.' The figures accumulated by checkers either from
their observation of production work-or from production records are
used to compute the amount of bonus or incentive pay to which a pro-
duction worker is entitled if he completes a job assigned to him in
less time than the standard time applicable to that job. No technical
training is required for the performance of a checker's duties, although
a high school education or, its equivalent is essential. Checkers are
salaried employees receiving approximately 20 percent less in wages
than the time-study men. While they have little actual contact with
time-study employees, their hours and working conditions are similar.
SWIFT AND COMPANY 151
The Company contends that checkers exercise judgment or discretion
in observing and checking production 'operations, that the amount of
bonus pay to which production workers are entitled depends on the
checkers' reports of their production performance, and that these facts
indicate,that checkers are closely allied to management. The evidence
indicates that the duties of checkers do not involve the exercise of
managerial discretion to a degree which would identify them with
management," and that the reports they make regarding the work
performance of production employees are based upon information
gathered by the application of standards established by time-study
men. We are,of the opinion that the work of checkers is more in the
nature of routine clerical work, does not require the professional and
technical ability and skill that the work of time-study employees re-
quires, and that the interests and problems of checkers are akin to
those of plant clericals. _
. Storeroom, employees.-The Company employs three employees in
this group, one of whom is classified as the head storekeeper, one as a
clerk, and one as a laborer. The Union does not seek to represent the
laborer as he ,is included in another bargaining unit. The head store-
keeper directs the work of the other two employees and has authority
effectively to recommend hiring or'fiiing or a change in the status of
these two employees. Accordingly, he falls within our customary
definition of a supervisor.
The storeroom clerk, a female employee, keeps records of mainte-
nance equipment and inventories, makes up pay-roll deductions for
supplies purchased by employees and operates a typewriter. Her
hours and working conditions are similar to that of other plant cleri-
cals. She is paid on a salary basis. These facts establish that her,
work is primarily clerical. We see no merit to respondent's conten-
tion that her routine, handling of pay-roll deductions for employees
who purchase supplies from the storeroom allies her with management.
Commissary employees.-The Company employs two employees in
this department. They sell the Company's products' to other em-
ployees. In performing this function, they fill orders, weigh out the
products they sell, wrap packages, make charges, bill various items,
and collect payment, therefor. The parties agree that the work of the
commissary employees, isI mainly clerical. The Company, however,
contends that these employees do not belong in the same unit with other,
plant, clericals solely because they work under the supervision of the'
sales manager while the other plant clericals work under the,super-
vision of the plant superintendent. The record establishes, however,
that these employees are carried on the plant pay roll, rather than on
8 Matter of Armour and Company, 54 N. L. R. B. 1005.
152 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the sales'department pay roll and that their hours, working conditions,
and rates of pay are similar to those of other plant clericals.
Fire Marshal.-This employee is under the supervision of the head
of the watch service (plant protection). He is located in an office of his
own wherein fire equipment is also stored. His duties consist-of in-
specting and maintaining fire equipment throughout the plant, check-
ing any hazardous fire conditions that may exist and directing the cor-
rection of the same, directing and controlling the handling of fire
equipment in case of emergency, and supervising the work of four jani-
tors and porters whose duties are to keep the stairways, yards, and
floors clean., He may effectively recommend the hiring, discharging
or disciplining of the janitors and porters, and thus falls within,our
customary definition of a supervisory employee.
From the above facts it appears clear that the working conditions,
interests, and "problems of plant clerks, standards department checkers,
storeroom employees and commissary employees, are all closely allied.
They forma residuary group of employees carried on the plant pay roll
whose duties are primarily clerical. Therefore, we find that the Com-
pany's contention that they constitute a heterogeneous group is not
supported by the weight of the evidence. Nor do we consider the pos-
sibility that the same labor organization which represents the produc-
tion and maintenance employees may also represent these employees to
be a sound basis for depriving them of their right to bargain collec-
tively in an appropriate unit through whatever bargaining 'agent
they choose.°
We agree with the Company's contention that the time-study em=
ployees have interests, background and qualifications dissimilar to those
of the group of employees whose duties are fundamentally clerical and
that the head` storekeeper and the fire marshal are supervisory em-
ployees. Accordingly, we shall exclude.these employees from the unit
hereinafter found appropriate. We also agree that time and employ-
ment office employees occupy a relationship to management sufficient to
warrant their exclusion from the unit.
We find that all plant clerks,,standards department checkers, store-
room clerk and commissary employees of the Company's Jersey City
plant, exclusive of time' and employment office employees, time-study
employees, storeroom laborer, head storekeeper, chief clerk, fire mar-
-steal and all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3 Matter of Armour and Company, 49 N. L. R. B 688,691. '
I
- SWIFT AND COMPANY
V. THE DETERMINATION OF REPRESENTATIVES
153
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
herein, subject to the limitations and additions set forth in the
Direction.
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, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Swift and Com-
pany, Jersey City, New Jersey, 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 Second Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, 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 those em-
ployees 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
Workers of America, C. I. O.,10 for the purposes of collective
bargaining.
10 The Union has requested that it appear on the ballot as United Packinghouse Workers
of America , C I. O. We hereby grant this request , but should the Union win the election
we'shall certify it as its name appears in the caption of this proceeding.