Swift & Co.

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1497 (N.L.R.B. 1952)

SWIFT & COMPANY 1497
SWIFT & COMPANY and UNITED PACKINGHOUSE WORKERS OF AMERICA,
CIO, PETITIONER . Case No. 18-RC-1480. June 30, 1952
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Erwin A. Peterson, hearing
officer. The. hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three- member
panel [Chairman Herzog and Members Murdock and Peterson].
Upon the entire record in this case,' the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.2
3. The Intervenor claims that the current contract between it and
the Employer covering a portion of the total group of employees
sought to be represented by the. Petitioner, constitutes a bar. In
support of this claim, the Intervenor relies primarily upon the fact
that the contract was executed on April 2, 1952, 1 day prior to the
filing of the petition. The record shows, however, that the Petitioner
had given the Employer effective notice of its representation claim on
March 28, 19523 and that by filing the petition within 10 days there-
after, it conformed with the requirements of our General Electric
X-Ray rule.' It thus precluded the intervening contract from oper-
ating as a bar.
We find that 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 issues ; the determination of representatives :
For many years prior to the institution of these proceedings, the
Employer has been engaged, at the location here involved, in the pro-
duction and manufacture of soy bean products. This phase of its
operation is referred to in the record and herein as the "soy bean
plant." In March 1952, it added to its operations, the manufacture
I As corrected by order of the Board dated May 27, 1952.
2 Local 90, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, AFL, intervened in this proceeding . It is hereinafter referred to as
the Intervenor.
3 It appears from the record that the parties to the contract had reached substantial
oral agreement as to provisions sometime prior to March 28, 1952. However , in accord
with well-established precedent, such oral agreement is inoperative as a bar to the timely
filing of a rival claim.
" General Electric X-Ray Corp., 67 NLRB 997.
99 NLRB No. 158.
1498 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
and/or production of animal feed products. This phase of its opera-
tions is referred to therein as the "feed mill."
The Petitioner here seeks a production and maintenance unit ex-
tending in scope to both the soy bean plant and the feed mill. The
Employer agrees that the scope of the unit so requested is proper.
The Intervenor, however, urges that the soy bean plant employees
should not be merged with the feed mill employees, but should be
separately represented.
There are a number of factors which support the unit requested by
the Petitioner. Thus, although the end products of the 2 operations
are different, there is a substantial similarity in the work content of
about 80 percent of the total number of jobs existing in both operations.
A substantial quantity of the products of the soy bean plant are used
in the feed mill. Both operations are under the over-all supervision
of 1 general plant manager and superintendent, and a single sales and
clerical force services both groups. All of the employees are hired
through 1 central office, and are given the same vacation and other
benefits, and the same general working conditions. Both groups work
in relatively close proximity-as the "feed mill" is housed in a build-
ing separated from that in which the soy bean plant is housed by only
about 300 feet. The total number of the employees engaged in both
operations is relatively small: about 23 are employed in the soy bean
plant, and about 40 in the feed mill .5 Employees of the soy bean plant
-were given an opportunity to transfer to the feed mill when the latter
was opened up, and about 4 availed themselves of such opportunity.
On occasion the maintenance men from one operation will go to the
other when 1 of the 2 plants needs additional help.
On the other hand, despite the existence of the foregoing factors
supporting a comprehensive unit of the two operations, the record also
shows that the degree of integration of the two operations is not such
as to preclude the possibility that each of the two may constitute a
separate appropriate unit. Thus, despite the central over-all admin-
istrative controls, each of the operations is under the separate im-
mediate supervision of a foreman whose responsibility does not extend
beyond the operation to which he is assigned. The feed mill em-
ployees are substantially all new employees hired specifically for that
operation, and no regular interchange of jobs in the two operations
occurs, or is contemplated. Moreover, the Employer's conclusion, fol-
lowing its installation of the feed mill, of a collective agreement con-'
fined in coverage to the soy bean plant employees, while not
5 The Employer eventually - expects to increase the complement of feed mill employees
to a maximum of about 50 .. No contention Is here made that a present direction of
elections in a unit including feed mill employees would not result in a poll of a repre-
sentative number of such employees.
SWIFT & COMPANY 1499
controlling,6 constitutes persuasive evidence that it did not deem its
operations so interrelated as to render collective bargaining for only
one of two operations unfeasible.
In light of the foregoing circumstances, we'believe that the produc-
tion and maintenance employees at each of the two operations should
be given the opportunity to express their desires as to representation
in separate self-determination elections.
In determining the composition of,the voting groups, we note that
the parties disagree only as to the unit placement, of three truck
drivers,' who perform services for both operations. The Petitioner
would exclude them from any production and maintenance unit,
whereas the Employer and the Intervenor would include them. We
agree with the position of the Intervenor and the Employer. These
workers perform duties of a kind closely allied to that of other pro-
duction and maintenance workers who are included, and no union
seeks to represent them as a separate group.8 As they are covered by
the Intervenors' soy bean plant contract with the Employer, we shall
include these employees in,the soy bean plant employees voting group.
To determine the desires of the employees as to the scope of the
unit or units, we shall direct that separate elections by secret ballot
,be held in the following voting groups
1. All production and maintenance employees of the Employer's,
Des Moines, Iowa, soy bean plant, including truck drivers, but ex-
cluding all office and clerical employees, salesmen , buyers, profes-
sional employees, laboratory employees, plant clerks, guards, and
supervisors as defined in the Act.
II. All production and maintenance employees of the Employer's
Des Moines, Iowa, feed mill, excluding office and clerical employees,
salesmen , buyers, professional employees, laboratory employees, plant
clerks, guards, and supervisors as defined in' the Act.
If a majority of the employees in voting group I select the In-
tervenor, they will constitute a separate appropriate unit. Similarly
if a majority of the employees in either group I or II select the Pe-
titioner, the employees in that voting group will constitute a separate
appropriate unit, provided however, if a majority of employees in
each group cast their ballots for the Petitioner, they together will
constitute a single appropriate units
'We are aware that the Intervenor has bargained for the soy bean plant employees
since 1940 This "history" of collective bargaining , however, is of no consequence in
our determination of the unit Issues herein.
' Two are over -the-road drivers , and one Is a local pickup and delivery man.
The Ewrmingham Casket Co ., 92 NLRB 573.
e As the Intervenor made no showing of interest In the employees in voting group II,
its name will be omitted from the ballot in that election.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Regional Director conducting the election is directed herein to
issue a certificate of representatives in accord with the foregoing.
[Text of Direction of Elections omitted from publication in this
volume.]
THE GREAT ATLANTIC & PACIFIC TEA COMPANY and UNITED RETAIL
EMPLOYEES OF BIRMINGHAM LOCAL 436, RETAIL, WHOLESALE & DE-
PARTMENT STORE UNION, CIO, PETITIONER. Cases Nos. 10-RC-
1755,10-RC-1756, and 10-RC-1769. June 30, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before John S. Patton.
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.,
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer 2
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner requests three separate units of grocery, produce,
and meat department employees in certain of the Employer's stores
in the Birmingham, Alabama, metropolitan area. The Employer's
stores in this area are herein collectively called the Metropolitan Area
Stores. In Case No. 10-RC-1755 the request is for a unit of these
employees in the Tarrant City store, in Case No. 10-RC-1756 the unit
is limited to. the Fairfield store, and in Case No. 10-RC-1769 the Pe-
titioner requests a unit consisting of all the Employer's stores in the
city of Birmingham. The Employer and Intervenor contend that
these units are inappropriate, and assert that only a single unit em-
1 The Employer' s motion to dismiss the petitions on grounds of insufficient showing of
interest is denied as this matter is not litigable by the parties, but is exclusively for the
Board ' s administrative determination The Employer' s motion to dismiss the petitions
on grounds of inappropriateness of the proposed units is denied for the reasons stated
infra.
2 Intervention was granted to Local No. 1657, Retail Clerks International Association,
AFL.
99 NLRB No. 155.