Swift & Co.

National Labor Relations Board - Board Decisions

Oct 21, 1944

58 N.L.R.B. 1258 (N.L.R.B. 1944)

In the Matter of SWIFT & COMPANY and UNITED CANNERY, AGRICUL-
TURAL, PACKING & ALLIED WORKERS OF AMERICA, LOCAL 19, AFFILI-
ATED WITH CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. 15-R-1209.-Decided October 21, 1944
Mr. John P. Staley, of Chicago, Ill., and Mr. J. S. Gassaway, of
Memphis, Tenn., for the Company.
Mr. Joseph W. Hellinger, of Memphis, Tenn., for the C.,I. O.
Messrs. Wilson W. Rowland and Homer Gerig, of Memphis, Tenn.,
for the A. F. L.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Cannery , Agricultural , Packing
& Allied Workers of America, Local 19, affiliated with Congress of
Industrial Organizations , herein called the C. I. 0., alleging that a
question affecting commerce had arisen concerning the representation
of employees of Swift & Company , Memphis , Tennessee, herein called
the Company ,' the National Labor Relations Board provided for an
appropriate hearing upon due notice before Laurence H. Whitlow,
Trial Examiner. Said hearing was held on August 14 , 1944, at Mem-
phis, Tennessee . The Company , the C. I. 0., Amalgamated Meat
Cutters & Butcher Workmen of North America , A. F. L., Local No. 586,
herein called the A. F. L., appeared , participated and were afforded
full opportunity to be heard , to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues . The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed . The A. F. L.'s motions to dismiss are hereby denied
for reasons hereinafter stated. All parties were afforded an
opportunity to file briefs with the Board. ,
' Incorrectly described in the petition on otner formal papers as "Swift Cotton Oil
Company ," and corrected by motion at the hearing.
58 N. L. R. B., No. 229.
1258 -
SWIFT & COMPANY 1259
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Swift & Company , an Illinois corporation with its principal place
,of business and offices in Chicago , Illinois, operates among other plants
in various parts of the United States , a plant at Memphis , Tennessee,
the only one involved in this proceeding, at which plant the Company
processes cottonseed and manufactures cottonseed oil. During the
fiscal year ending July 31, 1944, the Company purchased for use at its
Memphis plant , raw material valued in excess of $1,000,000 , of which
-amount approximately 70 percent was obtained from points outside
the State of Tennessee . During the same period , the Company manu-
factured and sold from its Memphis plant products valued in excess
of $1,500,000 , of which about 20 percent was shipped to points outside
the State of Tennessee.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
IT. THE ORGA NIZATIONS INVOLVED
United Cannery , Agricultural , Packing & Allied Workers of
America, Local 19, affiliated with Congress of Industrial Organiza-
tions, is a labor organization admitting to membership employees of
the Company.
Amalgamated Meat Cutters & Butcher Workmen of North America,
Local No. 586, affiliated with the American Federation of Labor, is
a labor ' organization admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On August 11, 1944, the C. 1.,•0. claiming majority representation
among the Company's employees at its Memphis plant , requested that
the Company agree to a consent election. The Company replied that
it could not recognize the C. I. O. upon the ground that the A. F. L.
was the duly certified bargaining representative for the Company's
Memphis plant employees . At the hearing the A. F. L. intervened
and claimed that the present proceeding was barred by reason of
existing contractual relations between the Company and the A. F. L.
The Company and the A. F. L. have maintained collective bargain-
ing relations since 1941. The only contracts urged as a bar in the
present instance consist of the last written agreement between the
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties and an alleged extension or modification thereof. The written
agreement in question is an exclusive bargaining contract effective as
of June 14, 1943, and for 1 year thereafter, subject to automatic
renewal from year to year in the absence of notice given by either
party at least 30 days prior to the yearly expiration date, of a desire
to terminate or modify the agreement.
The evidence discloses that, while no formal notice of a desire to
terminate or modify the agreement was given by either party prior to
May 14, 1944, the effective renewal date under the terms of the auto-
matic renewal provision, the A. F. L. presented to the Company on or
about May 30, 1944, the draft of a proposed substitute agreement with
a request that the Company negotiate with respect thereto. There-
after, the A. F. L. and the Company entered into negotiations. The
parties continued to negotiate until August 11, 1944, when the Com-
pany learned of the C. I .O.'s claim to majority representation and
terminated the negotiations before an agreement could be fully com-
pleted and signed by the parties herein concerned. Since it appears
that the Company and the A.• F. L., by their negotiations, retroactively
waived the automatic renewal provision and thereby indicated that
they considered the 1943 agreement to be terminated as of June 14,
1944, and not subject to automatic renewal, we find that the Company
and the A. F. L. cannot assert that such agreement now constitutes a
bar to the present proceeding.2
There remains for consideration the question of an alleged oral
understanding of an extension or modification of the written contract
as affecting the right of the C. I. O. to maintain its present petition
for investigation and certification of representatives. While the rec-
ord reveals that the Company and the A. F. L. orally agreed that, pend-
ing negotiations, the 1943 written agreement should continue in force
and effect, and had, prior to the break in negotiations, come to an oral
understanding with respect to substantially all the terms of the pro-
posed agreement, it is clear that, since such agreements have not been
reduced to writing, they are not a bar to a determination of representa-
tives.3
A statement of a Field Examiner for the Board, introduced in evi-
dence at the hearing, indicates that the C.'I. O. represents a substantial
number of employees in the unit hereinafter found appropriate.'
s See Matter of C H Dutton Company , 48 N I, R B 27
See Matter of Escor, Inc, 46 N L . R. B 1035 ; Matter of South Texas Cotton Oil
Companu. 54 N L R B 416
4 The Field Examiner reported that the C 1 0 had submitted 62 designations dated
August 1944, of which 27 checked with names on the Company's pay roll of August 15,
1944 , containing 64 names within the unit claimed appropriate by the C I. O.
The Field Examiner further reported that the A. F. L submitted no designations but
contended that it had a contract with the Company, and that the contract was a bar to
the present proceeding.
SWIFT & COMPANY 1261
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
The C. I. 0. contends that all maintenance and production em-
ployees, excluding superintendents and assistant superintendents, of-
fice and clerical employees , constitute an appropriate unit. The only
dispute between the C. 1. 0. on the one hand, and the Company and
the A . F. L. on the other , concerns the question of including or exclud-
ing specific categories and individual employees . The C. I. 0. would
include, while the A . F. L. and the Company would exclude , the ma-
chinist foreman , the expeller foreman, the seed sampler , watchmen,
and truck drivers.
- The machinist foreman : The machinist foreman is a weekly salaried
employee who is responsible to the superintendent for the proper per-
formance of all machine work and the economical use of labor in the
machine shop . While the machinist foreman is the only machinist em-
ployed by the Company and performs manual labor , he supervises and
directs from one to three laborers , whom he has authority to discharge.
We find that the machinist foreman is - a supervisory employee within
the meaning of our usual definition . We shall, accordingly , exclude
him from the unit hereinafter found appropriate.
The expeller foreman: The employee occupying the position of ex-
peller foreman is a weekly salaried employee who is in charge of expel-
ler operations and is responsible to the plant superintendent for the
maintenance and repair of all machines connected therewith. While
the expeller foreman has but one employee under his personal super-
vision during daytime operations , he is also responsible for the work
of two employees on the night shift forwhom he leaves orders and as to
whom he may recommend discharge, which recommendations would
be seriously considered by the plant superintendent. We find that
the expeller foreman is a supervisory employee within the meaning of
our usual definition, and shall, therefore , exclude him from the unit
hereinafter referred to.
The seed sampler: This ethployee, who has recently been hired by
the Company , has the duty of procuring samples of the seeds shipped
to the Company's plant and ascertaining by weighing and shaking
the amount of foreign matter present in any given sample of seeds.
The Company contends that, inasmuch as the reports of the seed
sampler to the Company 's chemist on the quality of seeds delivered,
form the basis for the grade and price which the Company pays to
the producer thereof, the seed sampler is allied to management and
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has no community of interest with the production and maintenance
employees. With respect to the objection based on the relation of
the seed sampler to management, the fact that the work of an em-
ployee determines the price which the company pays for its raw ma-
terial has been held insufficient to warrant excluding such employee
from collective bargaining.5 So far as the relative interests of the
seed sampler and those of production and maintenance employees are
concerned, the record reveals that the seed sampler performs,manual
labor, has no supervisory duties and is an hourly paid employee whose
earnings approximate those of the production and maintenance em-
ployees. In view of the above considerations, we shall include the seed
sampler in the unit hereinafter found appropriate .6
Watchmen: The Company employs four watchmen who make regu-
lar rounds and punch time clocks in the performance of duties usual to
watchmen, particularly with regard to fire prevention. The watchmen
herein concerned do not wear uniforms and are in no respects mili-
tarized. While the A. F. L. would exclude watchmen from the ap-
propriate unit, watchmen have been included under the collective
bargaining agreements between the'Company and the A. F. L.7 Under
the circumstances we shall include watchmen within the unit herein-
after found appropriate."
Truck Drivers: The Company employs no truck drivers at the pres-
ent time and has no definite plans to employ them in the future. We
are of the opinion that, in the absence of evidence that the Company
now employs truck drivers or that there is a definite likelihood of such
employment in the immediate future, any finding as to the propriety of
inclusion or exclusion of truck drivers would be prei natures
We find that all' production and maintenance employees of the Com-
pany's Memphis Cotton Oil plant, including the seed sampler and
watchmen, but excluding office and clerical employees, superintendents,
assistant superintendents, foremen (including the machinist foreman
s Seb Matter of Collins Ptne Co , 54 N L R . B 670 , wherein log scalers and graders
having duties comparable to those of the seed sampler in the present matter were included
within the appropriate unit
See Matter of American Cyanamid Co . 27, N L R B . 1176 ; Matter of Vermont Marble
Co , 28 N L R. B 1239, Matter of Sullivan Mining Co , 36 N. L . R I3 107 , Matter of
Godchaux Sugar, 36 N L R B 926 ; Matter of Interlake Iron Corporation . 38 N L R B
139, Matter of Swift t Company Fertilizer Works, ®40 N. L . R B 931 ; of Matter of The
Midvale Company, 57 N L R B 1359
The terms of the last collective bargaining agreement provide that "the Company
recognizes the Union as the sole bargaining agency for those employees covered by this
agreement , as set aside by the National Labor Relations Board in matters pertaining to
wages, Hours and working conditions " The record of the only prior Board proceeding
affecting this particular plant of the Company (Case No. 10-R-379 ), discloses that the
A F L won a consent election covering "all hourly paid production and maintenance
employees and watchmen , exclusive of supervisory and clerical employees "
8Matter of Pass and Seymour, Inc, 51 N L R . B. 1135; Matter of The Arundel
Corporation, 53 N. L. It. B 466.
9 See Matter of Western Freight Handlers , Inc., 49 N L. R B 66.
SWIFT & COMPAN Y 1263
and the expeller foreman ) and all other supervisory employees with
authority to hire, promote, discharge , discipline or otherwise effect
changes in the status of employees , or effectively recommend such ac-
tion, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 ( b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
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 Relations Act, and
pursuant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 3, as amended, it is hereby
DIREOrED that , as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Swift & Company,
Memphis3 Tennessee , 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 Fifteenth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
tions 10 and 11, of said Rules and Regulations among the employees
in the appropriate unit 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 election, to determine whether they desire to be represented by
United Cannery, Agricultural, Packing & Allied Workers of America,
Local 19, affiliated with Congress of Industrial Organizations, or by
Amalgamated Meat Cutters & Butcher Workmen of North America,
Local 586, affiliated with the American Federation of Labor, for the
purposes of collective bargaining , or by neither.