Swift & Co.

National Labor Relations Board - Board Decisions

Mar 19, 1945

60 N.L.R.B. 1321 (N.L.R.B. 1945)

In the`Matter of SWIFT & COMPANY amd FOOD, TOBACCO, AGRICULTURAL
AND ALLIED WORKERS UNION OF AMERICA, CIO
Case No. 14-R-1119.-Decided March 19, 1945
Messrs. Neal J. Huff and Clarke Nunn, Jr., of Chicago, Ill., for the
Company.
Mr. Frank Hargrove, of Nashville, Tenn., for the CIO.
Mr. Evan Dale, of Carbondale, Ill., for the AFL.
-Mr. Harold M. Humphreys, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Food, Tobacco, Agricultural and
Allied Workers Union of America, CIO, herein, called the CIO,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Swift & Company, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Harry G. Carlson, Trial
Examiner. Said hearing was held at Cairo, Illinois, on February
9, 1945. The Company, CIO, and Construction and General Laborers'
Union, Local No. 773, AFL, herein called the AFL, appeared and par-
ticipated. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. The Trial Examiner's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. All parties
were afforded an opportunity 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 & Company is an Illinois corporation, operating plants
throughout the United States. This proceeding involves only the
Company's Oil Mill located at Cairo, Illinois, where it is engaged in
the extraction of oil from cotton seed and soy beans. During the
60 N. L. R. B., No. 228.
1321
13'2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fiscal year ending October 1, 1944, the Company purchased cotton seed
and soy beans amounting in value to approximately $4,000,000, of
which 81 percent was shipped to its Cairo plant from points outside
the State of Illinois. During the same period, the Company sold or
shipped products from its Cairo plant valued in excess of $4,500,000,
all of which was transported to points outside the State of Illinois.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Food, Tobacco, Agricultural and Allied Workers Union of America,
affiliated with the Congress of Industrial Organizations, and Con-
struction and General Laborers' Union, Local No. 773, affiliated with
the American Federation of Labor, are labor organizations admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On December 5, 1944, the CIO requested recognition from the Com-
pany as the collective bargaining representative of certain of its
Cairo plant employees. The Company refused to accord such recog-
nition, on the ground that it was bound by a contract with the AFL.
This agreement is raised by the AFL as a bar to the instant proceeding.
On March 11, 1944, the contract in question was executed by the
Company and the AFL, effective retroactively as of January 15, 1944,
and to continue in operation for the term of 1 year from-the latter
date.' The contract also provided for automatic renewal for yearly
periods thereafter "unless either party notifies the other of their in-
tention of terminating or amending any of its provisions within 30
days of the termination date." On December 13, 1944, prior to the
operative date of the automatic renewal clause, the AFL notified
the Company by letter that it wished to change certain terms and
conditions of the contract.
Inasmuch as the AFL effectively forestalled the operation of the
renewal clause and thereby caused the termination of the contract
on January 15, 1945, it is evident that no bar exists as to a current
determination of the representatives.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the CIO represents a substantial number of
employees in the unit hereinafter found appropriate 2
' The Company and the AFL had operated under a previous 1-year agreement.
' The Field Examiner reported that the CIO submitted 83 application -for-membership
cards , that the names of 71 persons appearing on the cards were listed on the Company's
pay- roll of December 15,• 1944, which contained the names of 109 employees in the appro-
priate unit ; and that 35 of the cards were dated November 1944, 12 December 1944
and 24 were undated. At the hearing , the CIO submitted 9 additional cards, 4 dated
January 1945 , 3 in February 1945, and 2 undated. The AFL relies upon its contract as
evidence of its interest in this proceeding.
SWIFT & COMPANY 1323
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
All parties are in general agreement that the appropriate unit
should consist of all production and maintenance employees, including
strawbosses and leadmen,3 but excluding office and clerical employees,
deputized guards, truck drivers, superintendents, assistant superin-
tendents, foremen, and all other supervisory employees. However,
the parties are in disagreement as to the seed sampler, whom the CIO
would include, and the AFL and the Company would exclude.
Seed Sampler: This employee is under the direct supervision of the
General Manager. He is licensed and bonded by the United States
Department of Agriculture and-the Commodity Credit Corporation.
His work is performed in accordance with the rules and regulations
of these governmental agencies. The sampler's entire time is given
to the sampling of cotton seeds and soy beans, the preparation of these
samples for forwarding to the laboratory, and the keeping of records
of such shipments. The price paid for seed is based on the sampler's
judgment. This employee was excluded from the coverage of the 1943
and 1944 contracts between the Company and the AFL. Accordingly,
we shall exclude him.4
We find that all production and maintenance employees of the
Company's Cairo plant, including strawbosses and leadmen, but
excluding office and clerical employees, deputized guards, truck drivers,
seed sampler, superintendents, assistant superintendents, foremen, 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 appro-
priate for the purposes of collective bargaining 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.5
3 These employees are not supervisory within the meaning of our customary definition.,
• See Matter of Petersen & Lytle, 60 N. L R B 1070.
i Although the AFL urges that provision be made for the balloting of all employees now
in military service, for reasons stated in Matter of Mine Safety Applicances Co., 55 N. L.
R. B. 1190, only those employees in the armed forces of the United States who present
themselves in person at the polls shall be permitted to vote.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, as amended, it is hereby
DIRECTED that; as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Swift & Company,`
Cairo, Illinois, an election by secret ballot shall be conducted as early
as possible, but not later than sixty (60) days from the date of this
Direction, under the direction and supervision of the Regional Direc-
tor for the Fourteenth 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 the said pay-
roll period because they were ill or on vacation-for 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 they desire to be represented by Food, Tobacco,
Agricultural, and Allied Workers of America, CIO, or by Construc-
tion and General Laborers' Union, Local No. 773, AFL, for the
purposes of collective bargaining, or by neither.