Swift and Co.

National Labor Relations Board - Board Decisions

Jan 27, 1949

81 N.L.R.B. 333 (N.L.R.B. 1949)

In the Matter of SWIFT AND COMPANY, EMPLOYER and INTERNATIONAL
UNION of OPERATING ENGINEERS, LOCALS 38-38A, A. F. OF L.,
PETITIONER
Case No. 17-RC-,230.Decided January 27, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held before a
hearing officer of the National Labor Relations Board. The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. The Employer's motion to dismiss the peti-
tion because of the alleged inappropriateness of the unit is denied for
the reasons stated hereinafter.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members. *
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner and United Packinghouse Workers of America,
C. I. 0., Local No. 47, herein called the Intervenor, are labor organiza-
tions claiming to represent employees of the Employer.
3. The question concerning representation :
Since a 1941 consent election, in which the Petitioner failed to win
the employees it now seeks to represent, the Intervenor has continu-
ously represented all production and maintenance employees at the
Employer's Omaha, Nebraska, meat packing plant, in a single bar-
gaining unit. The last collective bargaining agreement between the
Intervenor and the Employer was executed on July 22, 1948, 1 week
after the Petitioner had filed its petition herein.
* Chairman Herzog and Members Reynolds and Gray.
81 N. L. R. B., No. 58.
333
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Intervenor contends that its contract of July 22, 1948, is a bar
to this proceeding. We find no merit in this contention, as the petition
was filed before the contract was executed.'
A question affecting commerce exists concerning the representation
of employees of the Employer, within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. The appropriate unit; the determination of representatives:
The Petitioner seeks to represent a unit of employees limited to all
engineers, firemen,2 oilers, temperature men, and utility-maintenance
men in the boiler and engine room department of the Employer's
Omaha, Nebraska, plant, excluding supervisors. The Employer and
the Intervenor contend that the unit sought is inappropriate, because
the plant's operations are highly integrated and because of a bargain-
ing history on a broader unit basis.
The boiler and engine room is physically separate from other plant
departments. Its function is to furnish steam, produce refrigeration,
compress air, and heat water for the plant. Although there is a stand-
by boiler for the production of steam, it is used only in the event of
emergency, as the Employer purchases steam from the Omaha Public
Power District. There are currently 37 employees engaged in boiler
and engine room operations, consisting of 6 engineers, 11 oilers, 6
temperature men, and 14 utility-maintenance men. The engineers
tend compressors and pumps located in the boiler and engine room
and occasionally shut off ammonia lines in other parts of the plant
as leaks develop. The oilers' duties are normally confined to the com-
pressors and pumps operated by the engineers, although they periodi-
cally check and oil the pumps in ice plants located throughout the
plant. Oilers are promoted to fill engineer positions, and several of
them already hold engineer licenses. Temperature men regulate brine
and ammonia in refrigerated rooms, and control and record tempera-
tures. The utility-maintenance men are further classified into 9 coil
scrapers, 2 brine tenders and spray cleaners, 2 temperature control
equipment testers and repairmen, and 1 helper. Engineers must be
licensed, with a minimum of 3 years' boiler room experience required
to qualify for the lowest grade license. All other employees are semi-
skilled and require a maximum of 1 month's training.
All the foregoing employees, whether working in the boiler and
engine room or in other parts of the plant, work only on machinery
i Matter of Beattie Manufacturing Company, 77 N. L. R. B. 361.
2 At present there are no employees either classified as firemen or performing the duties
of firemen.
SWIFT AND COMPANY 335
and equipment directly related to the functions of their department.
They are all under the immediate supervision of the boiler room
foreman, who supervises no other employees, and they have their own
departmental seniority, although also subject to plant-wide seniority.
There is no interchange with other employees. Unlike most of the
other plant employees they work 8 hours continuously on a three-shift
basis eating on the job without permission to leave the plant for lunch.
Although the proposed unit does not conform entirely to the usual
boiler room and powerhouse units which the Board has found appro-
priate, we believe that these employees, who are a homogeneous and
clearly identifiable departmental group, have a sufficient community
of interest to warrant their establishment as a separate bargaining
unit, notwithstanding a history of bargaining on a broader basis.3
However, the Employer also contends that, because severance of these
employees was rejected in the 1941 consent election held in the same
unit which the Petitioner now seeks, the Board is precluded from
affording them another self-determination election. Seven years
having elapsed since that election, we will not deny them another
opportunity to vote on the question of severance.
Accordingly, we find that the employees in the boiler room and
engine room department may constitute a separate unit appropriate
for collective bargaining. However, we shall make no unit determi-
nation pending the outcome of the election directed below. If, in
this election, the employees in the voting group described below select
the Petitioner,4 they will be taken to have indicated their desire to
constitute a separate unit. We shall not place the name of the Inter-
venor on the ballot as it has not complied with Section 9 (f), (g), and
(h) of the Act.'
3 Matter of Kendall-Mills Finishing Division of The eKndall Company, 77 N. L . R. B. 1015;
Matter of E. W. Bliss Company , 76 N. L . R. B. 475; Matter of B. I . DuPont de Nemour8 &
Company, Inc, 66 N . L. R. B. 631.
* The Petitioner is composed of two Locals existing under the same constitution and
by-laws Local 38 admits to membership journeymen engineers and Local 38-A admits
apprentices . The record discloses concerted bargaining by the two Locals. If the Petitioner
wins the election herein directed, both Locals will be certified jointly, and the Employer
will have the right to insist on dealing with them as the joint representative of the single
unit. See Matter of La Selle-Crtittenden Press, Inc., 72 N. L. R. B. 1166.
5 Matter of C. Hager & Sons Hinge Manufacturing Company, 80 N. L. R. B. 163.
On February 9, 1949, the Regional Director advised the Board that United Packinghouse
Workers of America, CIO , Local No. 47 , had taken the necessary steps to effect compliance
with Section 9 (f), (g), and ( h) of the Act . Counsel for the Intervenor filed a formal
motion for modification of the aforesaid Decision and Direction of Election , requesting
that Intervenor 's name be placed on the ballot . Thereupon , on February 16, 1949, the
Board issued an Order Amending Decision and Direction of Election , according United
Packinghouse Workers of America, CIO, Local No. 47 , a place on the ballot for the ordered
election herein.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In accordance with the foregoing, we shall direct that an election be
held among all engineers , oilers, temperature men and utility-
maintenance men employed in the boiler and engine room department
of the Employer's Omaha, Nebraska , plant, excluding supervisors as
defined by the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer , an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction , under the direction and
supervision of the Regional Director for the Seventeenth Region, and
subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations-Series 5, as amended, among the em-
ployees in the voting group described in paragraph numbered 4, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction of Election , including employees who did
not work during said pay- roll period because they were ill or on
vacation or temporarily laid off , but excluding those employees who
have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the election, and also excluding em-
ployees on strike who are not entitled to reinstatement , to determine
whether they desire to be represented , for purposes of collective bar-
gaining, by International Union of Operating Engineers , Locals
38-38A, A. F. of L., or by United Packinghouse Workers of America,
CIO, Local No. 47, or by neither.