Swift & Co.

National Labor Relations Board - Board Decisions

Mar 6, 1939

11 N.L.R.B. 950 (N.L.R.B. 1939)

In the Matter of SWIFT & Co. (UNITED DRESSED BEEF Co., J. J. HAR-
RINGTON, N. Y. VEAL & MUTTON Co .) and COMMITTEE FOR INDUSTRIAL
ORGANIZATION ON BEHALF OF THE EMPLOYEES OF SWIFT & CO ., et al.
Case No. R-1158.Decided March, 6, 1939
Meat. Packing Industry Investigation of Representatives : controversy con-
cerning representation of employees : rival organizations ; claims to represent
substantial groups of employees ; stipulation that question concerning repre-
sentation exists-Unit Appropriate tor Collective Bargaining : production and
maintenance employees , excluding supervisors , office employees , plant clerks,
and scalers ; stipulation as to ; truck drivers excluded at request of party to
proceeding ; duties would permit inclusion if no objection ; schochtim excluded ;
differences in work, compensation, and skill-Representatives : eligibility to
participate in choice : stipulation as to-Election Ordered
Mr. Martin Rose, for the Board.
Mr. Lewis A. Ackley, of New York City, and Mr. W. N. Strack, of
Chicago, Ill., for the Company.
Liebman, Robbins, Pressman d Leider, of New York City, by Mr.
Harold Cammer, for the United.
Mr. Louis Waldman, of New York City, by Mr. David I. Ashe, for
the Amalgamated.
Mr. Emanuel Weintraub, of New York City, for the Council.
Mr. Wendell P. Kay, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 14, 1937, the Committee for Industrial Organization,
hereinafter referred to as the United," filed with the Regional
Director for the Second Region (New York City) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of the United Dressed Beef Company of New
York,2 herein called the Company, at its New York City plant and
The C. I. 0. has since chartered United Meat Workers Local Industrial Union No.
635 in this plant.
The petition and some other pleadings incorrectly designated the Company. The
record corrects the title.
11 N. L. R. B., No. 78.
950
SWIFT & CO. ET AL. 951
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On November 22, 1938, the National
Labor Relations Board, hereinafter referred to as 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 and authorized the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice.
On December 10, 1938, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
the United, upon the Packing House Workers, Local No. 5, of the
Amalgamated Meat Cutters and Butcher Workmen of North
America, affiliated with the A. F. of L., hereinafter referred to as the
Amalgamated, and upon the Employees Council Union, herein-
after referred to as the Council, the last two being labor organiza-
tions claiming to represent employees directly affected by the investi-
gation. Pursuant to the notice, a hearing was held on December 19,
1938, at New York City, before Howard Myers, the Trial Examiner
duly designated by the Board. The Board, the Company, the United,
the Amalgamated, and the Council, were represented by counsel and
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 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
United Dressed Beef Company of New York, a New York cor-
poration with its principal office and plant in New York City, is
chiefly engaged in purchasing and slaughtering cattle, calves, sheep
and lambs, and processing and selling the meats and meat products.
J. J. Harrington & Company, and the New York Veal & Mutton
Company, two New York corporations, are wholly owned subsidiaries
of United Dressed Beef Company of New York. They are both in the
process of dissolution as separate corporate entities, and they are now
treated as functional divisions of the Company. Neither has any
general office, clerical staff, pay roll, bookkeeping system, employ-
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment office, or labor policy apart from that of the Company.
The Company is, in turn, a wholly owned subsidiary of Swift and
Company, an Illinois corporation having its principal place of busi-
ness in Chicago, Illinois.
During its 1937 fiscal year the Company slaughtered 85,717 cattle
weighing 94,407,019 pounds; 1,136,400 lambs weighing 91,123,583
pounds; and 192,279 calves weighing 37,607,810 pounds. In that
period 93 per cent of the cattle, 95 per cent of the lambs, and 97 per
cent of the calves were purchased and shipped to the plant from
points outside the State of New York. During the first 6 months of
1938, the Company slaughtered 45,669 cattle weighing 50,407,347
pounds; 635,346 lambs weighing 53,367,962 pounds; and 101,879
calves weighing 18,259,652 pounds; of which 95 per cent, 96 per cent,
and 99 per cent, respectively, came to the plant from points outside
the State of New York. The Company sold 29 440,636 pounds of
meat and byproducts from July 1, 1937, to June 30, 1938, approxi-
mately 25 per cent of which were shipped by rail and truck to
points outside New York State.
II. THE ORGANIZATIONS INVOLVED
United Meat Workers Local Industrial Union No. 635 is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to membership production and maintenance employees at
the New York City plant of the Company, excluding supervisors,
office workers, scalers, plant clerks, schochtim, and chauffeurs.
Amalgamated Meat Cutters and Butcher Workmen of North
America is a labor organization affiliated with the American Fed-
eration of Labor. It admits to membership employees of the Com-
pany at the New York City plant other than supervisors, office em-
ployees, plant clerks, scalers, salesmen, managerial employees, and
executives.
Employees Council Union is an unaffiliated labor organization, ad-
mitting to membership all employees at the New York City plant of
the Company, excluding supervisors, office workers, salesmen, clerks,
and scalers.
III. THE QUESTION CONCERNING REPRESENTATION
In a consent election held under the auspices of the Regional
Director on May 21, 1937, in which the Council and the Amalgamated
appeared on the ballot, the Council received a majority of the votes
cast. On September 28, 1937, the Company recognized the Council
as sole agency for collective bargaining for a period of a year. No
contract with the Council has been signed.
SWIFT & CO. ET AL. 953
Despite recognition of the Council, a substantial number of the
Company's employees have retained membership in the Amal-
gamated. Since June 1937, the United has carried on a membership
campaign at the Company's plant, and the record shows that ap-
proximately 150 employees have signed membership application cards.
Each organization now claims to represent a substantial number of
the Company's employees.
We find that a question has arisen concerning the representation of
employees of the Company's
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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
All parties stipulated at the hearing that all production and mainte-
nance employees, excluding supervisory employees, office employees,
plant clerks, and scalers, constitute a unit appropriate for the purpose
of collective bargaining. This agreement was without prejudice, how-
ever, to rights of the parties to contest the issue as to whether truck
drivers (chauffeurs), schochtim employees, and female employees in
the sheep-casing department should also be excluded from the ap-
propriate unit, as urged by the United. The Amalgamated, the
Council, and the Company maintain that these classes of employees
should be included in the unit.
Truck drivers: These 81 employees distribute the product to the
retail markets by truck.
The United seeks exclusion of the truck drivers from the appro-
priate unit on the ground that substantial differences in compensation
and conditions of employment distinguish the interests of the drivers
from those of the general production and maintenance employees, and
because the United has an, agreement with the International Brother-
hood of Teamsters, affiliated with the American Federation of Labor,
that the United will not attempt to organize truck drivers.
8 Paragraph 4 of a stipulation agreed upon by all parties, at pages 4 to 6 of the record
states, "There is a question concerning representation of the employees of the Company,
and an election should be held."
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that the drivers' work is necessarily largely
performed outside the plant and is different in nature from that of
the production and maintenance men. The Bedeaux system, appli-
cable to the production employees generally, does not apply to the
drivers. Their rate of compensation is well above the plant average,
and they are paid on a weekly basis rather than by the hour. Due to
the fact that they often handle money in the course of their employ-
ment, they are bonded.
In support of its contention that these employees should be included
in the unit, the Company points out that because the drivers must
be well versed in the varieties of meat which they distribute, they
are promoted from the ranks of the production employees. Under the
plant seniority rule, they are sometimes put back into production in
slack periods. The Company maintains that the truck drivers have
the same rights concerning seniority, vacations, sickness, pensions,
and weekly guarantee as other production workers. However, the
record shows that, in general, similar rights are held by office workers
and supervisory officials-classes of employees clearly not within
the appropriate unit. The Council urges inclusion of the drivers
in the unit on the grounds that the drivers participated in the former
election, that many are Council members, and that the Council has
bargained on their behalf.
No specific instances of bargaining by the Council on behalf of the
drivers appear in the record. The president of the Council testified
that the Council had established a procedure for handling grievances
and had met with the management on several occasions "in straighten-
ing out conditions of employment." There is no evidence of any at-
tempt by the Council to negotiate a contract with the Company, and
no such contract has been obtained. The drivers are eligible for mem-
bership in the Amalgamated, which also desires their inclusion, al-
though there is evidence that the Amalgamated intends to transfer
them to the International Brotherhood of Teamsters, the group within
the American Federation of Labor having appropriate jurisdiction.
From all the evidence, we are of the opinion that these employees
could appropriately be included in a production and maintenance
unit in the absence of any objection by a labor organization which is
a party to the proceeding. We are also of the opinion, however, that
they have a sufficiently different status by reason of their duties and
their higher compensation, so that, in the absence of a more definite
history of collective bargaining on their behalf, they should not be
included in a unit with the other employees when one of the rival
labor organizations objects, as here, to such inclusion.4 We shall
4 See Matter of Armour & Company and Amalgamated Meat Cutters and Butcher Work-
men of North America, Local 235, 10 N. L It . B. 912.
SWIFT & CO. ET AL. 955
therefore exclude the truck drivers from the unit found to be
appropriate herein.5
Sch,ochtim: 6 These employees, 51 in number, do all the killing of
livestock at the Company's plant. They are paid on a per head basis
(also dependent upon the percentage of animals passed as kosher),
and are not subject to the Bedeaux system. Their rights as to
seniority, vacations, sickness and accident, pensions and weekly
guarantee are the same as other production employees, under the
Company's present labor policy. The schochtim receive a substantially
higher rate of compensation than the general production and mainte-
nance employees. A large part of the duties of the schochtim are
governed by their religion. They are employed through a board of
Rabbis, after religious training, are supervised by a head schochet,
and their decision as to whether the animals slaughtered are kosher
or not is final.
Although both the Amalgamated and the Council accept schochtim
as members, it appears that no schochtim at the Company's plant
have affiliated with either organization. The United does not accept
schochtim as members and desires to exclude them from the unit,
pointing to the characteristics above which disassociate their inter-
ests from the production and maintenance employees. Differences
in the nature of the work performed, in their compensation, in their
skill, and in their status in the plant, all combine to set the schochtim
apart from general production and maintenance employees. There-
fore we shall exclude schochtim from the unit 7
Female employees of the Sheep Casing Department: No substantial
reason appears for excluding these female employees from the unit
found to be appropriate herein. Their work and conditions of em-
ployment are similar to those of other employees of the casing depart-
ment.
We therefore find that all production and maintenance employees
of United Dressed Beef Company of New York, including the J. J.
5 Truck 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 House Workers Union Local No 5 , Amalgamated Meat Cutters and Butcher Work-
men of North America, 4 N L R B 39; Matter of Todd Shipyards Corporation, Robins
Dry Dock and Repair Co , and Tiet)en and Lang Dry Dock Co and Industrial Union of
Marine and Shipbuilding Workers of America, 5 N. L R B . 20; Matter of John Minder
and Son, Inc . and Butchers Union, Local No. 174 , 6 N. L R. B 764 ; Matter of Armour
& Company and United Packing House Workers Industrial Local Union No. 389 Affiliated
with C I. 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
5 "Schochtun" is a Hebrew term describing persons who slaughter livestock in accordance
with the Hebrew ritual for the preparation of kosher meats
7 Schochtim were excluded from industrial units In Matter of Danahy Packing Company,
Klinck ' I'acking Company , Inc, Jacob Dold Packing Company and United Butchers, Meat
Cutters and Packers Local 105, 3 N. L. R B. 354 ; Matter of Wilson & Co. and United
Meat Workers Local Industrial Union No. 635, affiliated with the Committee for Industrial
Organization , 9 N. L. R B. 650
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harrington and New York Veal & Mutton Company divisions, at
the plant at First Avenue, 43rd and 44th Streets, New York City,
excluding supervisory employees, office employees, plant clerks, scal-
ers, truck drivers, and schochtim employees, constitute a unit ap-
propriate 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 otherwise
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
None of the three organizations here involved produced any proof
at the hearing to show how many of the Company's employees it
represented, although each claimed to represent a majority. We
accordingly find that an election by secret ballot is necessary to resolve
the question concerning representation.
All parties at the hearing stipulated that:
In the event that the National Labor Relations Board directs
an election herein, the eligibility list shall consist of all em-
ployees in the unit found appropriate by the Board on the pay
roll of said company at its plant on December 17, 1938, and
continuously and regularly employed at full time for thirty-
seven working days, immediately preceding December 17, 1938.
Such employees who have been on sick leave, temporary leave of
absence, vacation, or temporarily laid off by said companies for
lack of work at any time during said thirty-seven working days
period, shall be included in the eligible list, provided, however,
they have been continuously and regularly employed at full time
for a period of at least thirty working days, immediately preced-
ing such sick leave, temporary leave of absence, vacation, or
temporary lay-off.
The date of December 10, 1938, was later substituted for December
17, 1938, by stipulation of the parties. The Company's pay roll for
that date was introduced in evidence.8 We see no reason to depart
from the wishes of the parties in this respect and shall direct
accordingly.
Upon the basis of the above findings of fact and the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the em-
ployees of the Company at its New York City plant, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
2. All production and maintenance employees of the Company at
its New York City plant, excluding supervisory employees, office
*Board Exhibit No. 11.
SWIFT & CO. ET AL. 957
employees, plant clerks, scalers, truck drivers, and schochtim em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the 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, 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 United Dressed Beef Company of New York, an election by secret
ballot shall be conducted within fifteen (15) 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, Sec-
tion 9, of said Rules and Regulations-Series 1, as amended, among
all production and maintenance employees of the Company at its New
York City plant on the pay roll on December 10, 1938, and continuously
and regularly employed at full time for 37 working days immediately
preceding December 10, 1938, including employees who have been
on sick leave, temporary leave of absence, vacation, or temporarily
laid off for lack of work during each 37 working days' period providing
they have been continuously and regularly employed at full time for
a period of at least 30 working days immediately preceding such sick
leave, temporary leave of absence, vacation, or temporary lay-off,
excluding supervisory employees, office employees, plant clerks, scalers,
truck drivers, and schochtim employees, and excluding also employees
who have since quit or been discharged for cause, to determine whether
they wish to be represented by United Meat Workers Local Industrial
Union No. 635, affiliated with the Committee' for Industrial Organiza-
tion, or by Amalgamated Meat Cutters and' Butcher Workmen of
North America, affiliated with the American Federation of Labor, or
by Employees Council Union, for the purposes of collective bargaining,
or by none of them.