Swift and Co.

National Labor Relations Board - Board Decisions

Aug 14, 1944

57 N.L.R.B. 1334 (N.L.R.B. 1944)

In the Matter Of SWIFT AND COMPANY and UNITED PACKINGHOIJSE
WORKERS OF AMERICA, LOCAL 167, AFFILIATED WITH THE C. I. O.
Case No. 18-R-1041.-Decided August 14, 1944
Mr. William J.:S'cott, for the Board.
Mr. John P. Staley, of Chicago, Ill., for the Company.
Mr. Douglas Hall, of Minneapolis, Minn., for the C. I. O.
Mr. Harold LeVander, of South St. Paul, Minn., for the Inde-
pendent.
Mr. William R. Cameron, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Packinghouse Workers of
America, Local 167, affiliated with the C. I. O., herein called the
C. I. O., alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Swift and Company, South
St. Paul, Minnesota, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Stephen M. Reynolds, Trial Examiner. Said hearing was held
at Minneapolis, Minnesota, on July 10, 1944. The Company, the
C. I. 0., and Packinghouse Industrial Union No. 11, herein called the
Independent, appeared, participated, and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Independent moved to
dismiss the petition of the C. I. O. on the ground that the C. I. O.
had failed to show, that it represents a majority of employees in the
appropriate unit and that the present contract 'of the Independent
with the Company constitutes a bar to an election. For,reasons
hereinafter appearing, this motion is hereby denied. The Trial Ex-
aminer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded opportunity to
file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
57 N. L. R B., No 203.
1334
SWIFT AND COMPANY 1335
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Swift and Company is an Illinois corporation having many plants
and branches throughout the United States. The only plant involved
'in .this proceeding is'located at South St. Paul, Minnesota, where the
Company is engaged in the purchase and slaughter, of cattle, sheep,
and hogs, the processing of meat and cheese, and the handling of but-
ter and-eggs. For its. fiscal year ending October 30, 1943, the Company
purchased raw materials amounting in value to more than $50,000,000,
of which approximately 15 percent was purchased outside the State'
of Minnesota. For the same period, the Company's total sales from
its South St. Paul plant amounted in value to more than $52,000,000,
of which approximately 85 percent represents products shipped out-
side the State of Minnesota. -
The Company concedes that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
'United Packinghouse Workers of America, Local 167, is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the Company.
Packinghouse Industrial Union No. 11,, is a labor organization
affiliated with the International Brotherhood of Swift Employees,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 2, 1944, the C. I. 0., in writing, requested the Company to
recognize it as the exclusive bargaining representative of the Com-
pany's employees.' On Julie 10, 1944, the Company replied, refusing
to recognize the C. I. O. on the ground that the Independent had been
certified by this Board as such representative.
On May 1, 1943, as the result of an election conducted pursuant to
a Decision and Direction of Election by this Board on January 16,
1943,1 the Independent was certified as collective bargaining repre-
sentative of the employees in substantially the same unit as that herein
sought to be-represented by the C. I. O. The Independent, through
its parent organization, the International Brotherhood of Swift Em-
ployees, thereafter entered into a contract with the Company, which
provided that it should become effective as of August 20, 1942, and
1 46 N L R B 1171. The Independent was first certified by the Board as collective
bargaining representative of the Company's employees on December 12, 1941. See 37
N L R B 558
_1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should remain in effect until August 11, 1943, and from year to year
thereafter, subject to reopening by either party on written notice
mailed at least 30 days prior to August 11 of any year. The Inde-
pendent contends that this contract is presently in, effect and con-
stitutes a bar to an election. However, since the C. I. O.'s repre-
sentation claim was presented to the Company prior to the effective
date of the contract's automatic renewal provision, we find that the
contract does not constitute a bar to a present determination of
representatives.
A statement of the Field Examiner, introduced in evidence at the
hearing, indicates that the C. I. O. represents a substantial number
of employees in the unit hereinafter found appropriate.2
We find that a question affecting commerce has arisen concerning
the representation of employees o"f the Company within the meaning
of Section 9 (c), and Section 2 ( 6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties are generally agreed that the appropriate unit should
comprise all production and maintenance employees of the Company
at its South St. Paul plant, excluding the superintendent, assistant
superintendent, division superintendents, general foremen, foremen,
assistant foremen, plant-protection employees (policemen, watchmen,
and firemen), standards department employees, time office employees,
salaried plant clerks, chemists, all general office employees, bricklayers,
plant administrative employees, office cafeteria employees, steady-time
scalers, and branch house truck drivers. The C. I. 0., however, would
exclude the gang leaders, plant truck drivers, and hourly paid plant
clerks, who have heretofore been included within the unit represented
by the Independent and would include-box pullers, who have hereto-
fore been excluded. The Independent and the Company desire to
include the gang leaders, plant truck drivers, and hourly paid plant
clerks, and to, exclude the box pullers, in accordance with the unit -
formerly agreed to by the parties and established by the Board in its
previous Decision.$ - ,
Gang leaders. The record discloses that the lowest grade of the
Company's supervisors is that of foremen and assistant -foremen.
Under them is an employee classification known as gang leaders;'"who
act as leaders or pace setters of the various gangs of workmen. They
2 The Field Examner reported that the C 1 0 submitted 1,859 application-for-membership
cards, of which 1,262 were dated from April through June 1943, 216 from July through
September 1943, 145 from October through December 1943, 108 from January through
Maich 1944, and 126 from April through June 1944 A spot check of the cards submitted
disclosed that approximately 1,100 employees, whose names appear on these designations,
are also listed on the Company's pay-roll list of June 16, 1944, containing 3,272 employees
in the appropriate unit.
3 See citation in footnote 1.
SWIFT AND COMPANY 1337
spend all'their time in production work and are hourly paid, receiving,
in most cases, less,than'5 cents an hour more than the other production
employees with.whom they work. They do not possess authority to
hire, discharge, or make recommendations in regard to hiring or dis-
charging, they do not recommend discipline, nor are they responsible
for the quality or amount of the work of the other employees in the
gangs. Inasmuch as the gang leaders were not excluded from the unit
previously found appropriate by the Board, and the present record
clearly reveals that they are not supervisory employees within our
customary definition, we shall include them in the unit.
Plant truck drivers. The Company employs 11 plant truck drivers
who deliver the Company's products to various points in Minnesota,
Wisconsin, and North Dakota. They constitute a separate classifi-
cation from the Company's branch house truck drivers, who were orig-
inally employed at a local distributing facility in St. Paul but were
transferred without change in their duties, in September 1942, to the
Company's South St. Paul plant. The branch house truck drivers
have, for a number of years, been represented in bargaining with the
Company by the Teamsters' Union, affiliated with the A. F. of L. and
were excluded from the unit previously found appropriate by the
Board. However, since the plant truck drivers were specifically in-
cluded in the unit which we found to be appropriate, and have, for
several years participated in collective bargaining with the Company
as a part of such unit, we shall here include the plant truck drivers.
Hourly paid plant clerks. The hourly paid plant clerks perform
the minor clerical tasks' which arise in the various plant departments,
such as making the initial records of production and shipments and
running errands for the department supervisors. They are occasion-
ally interchanged with production workmen in the various gangs.
Since they were not excluded in our previous decision, and have been
represented in collective bargaining by the Independent as part,of the
production and maintenance unit, we shall include the hourly paid
plant clerks.
Box pullers. The duty of these employees is to,make rounds of the
plant, checking for fires, water and steam leaks, and "pulling" the
A. D. T. boxes, at intervals, on their rounds. The majority of their
work is at night, though at least one route is patrolled also in the day-
time. Inasmuch as the record discloses that the box pullers are a part
of,the Company's plant-protection force, their duties being those of,
watchmen who were heretofore specifically excluded, and since no suf-
ficient reason here appears why we should depart from the unit which
we have previously found. appropriate, we shall exclude them.
We find that all production and maintenance employees of, the
Company at its South St. Paul plant including gang leaders, plant
truck drivers, and hourly paid plant clerks, but excluding superin-
1338` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tendent, assistant superintendents, division superintendents, general
foremen, foremen, assistant foremen, plant-protection employees (po-
licemen, watchmen, and firemen), standards department employees,
timer office employees, salaried plant clerks, chemists, all general office
employees, bricklayers, steady-time scalers, plant truck drivers, and,
all other-supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in,the status of 'em-,
ployees, or effectively recommend such action constitute a unit ap-,
propriate for the purposes of collective bargaining within.,the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The parties stipulated at the hearing that, because of the high rate'
of employment turn-over in the plant, all employees who have been
employed by the Company less than 90 days preceding the eligibility
date should be ineligible to vote in the election. In support of this
xequest, the plant superintendent testified that turn-over had eficeeded
50 percent in the period of 26 weeks preceding the hearing, and that
a test-check of employees hired during a stated week in May 1944,
reveals that. approximately, 50 percent of the employees hired during
that week quit their jobs within 6 weeks thereafter: In our previous
Direction,of Election in this plant, we approved a stipulation similar
to that offered here.4 However, the record here discloses that the turn-
over, although, high, is much less than it was at the time of the pre-
vious hearing .5 Further, the record- discloses that there is now no
probationary period such as that upon which the Board based its pre-
vious finding. Inasmuch as the record does not indicate that any dis-
tinction is made in the manner of employment, or that employees are
hired on other than a' permanent basis, we are of the opinion that
eligibility should be determined, according to our customary prac-
tice, on'the basis of employment on the pay-roll date next preceding
the Direction of Election.°
The Company, at present, employs approximately 300 school boys,
over 16 years of age, at full-time summer employment. The majority
of these students commenced working for the Company- the-latter part
of May or the first of June 1944. Their conditions of employment,
including rights of seniority; are the same as those established for the
Company's other employees. The Company is aware, however, that
the majority of them expect to return to school at commencement of
the full term. Inasmuch as it is known'that these school boys will
See citation in footnote 1.
The plant superintendent testified that turn-over at the time of the prior representation
proceeding probably exceeded 75 percent.
6 See Matter of Southern Prison Company and Southern Steel Company, 53 N. L. it. B. 604,
and cases cited therein.
SWIFT AND COMPANY 1339
shortly terminate their employment with the Company, it is apparent
that they do not possess sufficient interest in coinmon with the other
production and'maintenaiice employees to justify their participation
in the selection of representatives for that group. We find, accord-
ingly, that the school boys who intend to quit their employment upon
the reopening of the school term are not eligible to vote in the election.?
We shall direct that the question coin cerning'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 Elec-
tion 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 Rela-
tions Act and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIaECTED_ that, as' part of the, investigation to ascertain represen-
tatives for the purposes of collective'bargaining with Swift and Com-
pany, South St. Paul, Minnesota, 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 Eighteenth 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 any who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the, date of the elec-
tion, to determine whether they desire to be represented by U.' P.
W.'A., Local 167, C: I. 0., or by Packinghouse Industrial Union No.
11, for the purposes of collective bargaining, or by neither.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.
[See infra, 57'N. L. R. B. 1402 for Amendment to Decision and
Direction of Election.]
4 See Matter' of Johnson -Handley-Johnson Company and Johnson Furniture Company,
51 N L. II B 1282
, The C 1 0 requested that it be designated on the ballot as U P W. A, Local 167,
C. 1 0 This request is hereby granted. _