Swift & Co.

National Labor Relations Board - Board Decisions

Jan 15, 1957

117 N.L.R.B. 61 (N.L.R.B. 1957)

SWIFT & COMPANY 61
the election, queried all of the 4 eligible employees as to their choices
in the coming election and stated that he was doing so on instructions
of the head manager in charge of all the stores.
In its exception to this objection the Employer does not deny the
factual findings of the Regional Director but contends that, as the
employees allegedly were not required to answer the question and,
in fact, did not answer the question, the questioning did not interfere
with the employees' free choice in the election. We find no merit in
this contention. We find, in agreement with the Regional Director,
that the questioning of the employees at the National City store as to
their choices in the Board election interfered with the employees'
freedom of choice in the selection of a bargain representative, despite
the Employer's allegation that the employees were not required to
answer. We shall, therefore, order that the election be set aside and
that a new election be held.' In view of the foregoing we find it
unnecessary to pass upon the validity of the Petitioner's objection
No. 3.
[The Board set aside the election held on July 19, 1956.]
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS, dissenting :
I do not believe the interrogation here was such as to prevent a free
choice in the election. As I view the Employer's action, it was entirely
devoid of threat or promise of benefit and thus a legitimate expression
of his right of free speech. Therefore, I would sustain the election
and instruct the Regional Director to certify the results thereof.
'See Southeastern Motor Truck Leases, Inc., 112 NLRB 601; The Gallaher Drug Com-
pany, 115 NLRB 1379
Swift & Company and United Packinghouse Workers of America,
AFL-CIO,' Petitioner
Swift & Company and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Depart-
ment Store, Package, Grocery, Paper House, Liquor and Meat
Drivers , Helpers and Warehousemen , Local No. 955, AFL-
CIO,2 Petitioner. Cases Nos. 17 RC-0345 and 17-RC-0356. Janu-
ary 15,1957
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
-Relations Act, a hearing was held in these consolidated cases before
1 Herein called Packinghouse Workers.
2 Herein called Teamsters Local No. 955.
117 NLRB No. 18.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harry Irwig, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
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 3 involved claim to represent certain
employees of the Employer.
3. Questions affecting commerce exist 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
4. Packinghouse Workers requests an election among the produc-
tion and maintenance employees at the Employer's Kansas City,
Kansas, meatpacking plant, including employees in the auto depart-
ment. Teamsters Local No. 955 requests a separate unit of auto
department employees, including truckdrivers, repairmen, and the
router.5 Amalgamated does not object to severance of the unit re-
quested by Teamsters Local No. 955, but the Employer and Packing-
house Workers contend that only a unit of production and mainte-
nance employees is appropriate. Brotherhood Local No. 12 agrees
with the Employer and Packinghouse Workers, but also contends, in
the alternative, that any severed unit should include truckdrivers
only.
The auto department employees have been included in the single-
plant production and maintenance unit, represented by Brotherhood
Local No. 12, for several years. There are approximately 80 em-
ployees in this department,6 of whom 64 are classified as drivers, 15
as repairmen, and 1 as a router. The department is supervised by
a foreman in charge, and 2 subforemen, 1 of whom is responsible for
the repairmen only.
8 National Brotherhood of Packinghouse Workers, Local No 12, herein called Brother-
hood Local No. 12, intervened on the basis of its recently expired contract covering the
production and maintenance employees . Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, herein called Amalgamated , intervened on the basis
of a showing of interest among the production and maintenance employees.
* Packinghouse Workers filed a prior petition in Case No . 17-RC-2303 for an election
in the production and maintenance unit, which was dismissed by the Regional Director
without prejudice on August 22, 1956 , 5 days before the petition in Case No . 17-RC-2345
was filed, because the Packinghouse Workers refused to consent to the election date set
by the Regional Director. We find no merit in the contention of Brotherhood Local No. 12
that the petition in Case No 17-RC-2356 should be dismissed because Teamsters Local
No. 955, although served with notice , failed to intervene in Case No 17-RC-2303; or in
the contention of the Employer and Brotherhood Local No 12 that the petition in Case
No. 17-RC-2345 should be dismissed on the ground that it was filed while the petition in
Case No. 17-RC-2303 was still pending and therefore constitutes an abuse of the Board's
administrative process.
5 In its brief filed with the Board after the close of the hearing, Teamsters Local No 955
for the first time requested that truckdrivers and loaders at the Employer's distribution
terminals at Wichita , Salina , Dodge City , and Liberal , Kansas, and Joplin and Springfield,
Missouri, be included in its proposed separate unit. This request is denied because it raises
matters not in issue at the hearing.
6 There are also two plant clerical employees in the auto department , whom the parties
agreed to exclude.
SWIFT & COMPANY 63
The 64 drivers include regular over-the-road and intercity truck-
drivers who spend 25 to 50 percent of their time actually driving, and
the remainder of their time loading and unloading their trucks; and
driver-learners or "spotters," who apparently spend all their time driv-
ing trucks from the garage to the loading platforms, and who may,
when they are qualified, become regular drivers. The router performs
dispatching duties, designating destinations and routes for the drivers;
he is qualified as a driver and receives the same pay, but rarely drives
the Employer's vehicles. It is the Employer's policy to promote
production and maintenance employees to drivers, and to reassign
older and incompetent drivers to other departments. There is, how-
ever, no interchange between employees regularly assigned to driving
and those regularly assigned to other duties. All drivers work ir-
regular schedules.
'The 15 employees in the auto department who are classified as re-
pairmen work fixed schedules on trucks and other vehicles such as
cars and tractors. They are divided into three groups according to
their proficiency: (1) Overhaul and maintenance, (2) body repair
and painting, and (3) servicing.
Under the contract the auto department employees have both de-
partment and plantwide seniority; they receive the same insurance,
hospital, pension, and vacation benefits as do the other employees.
As the duties of these drivers, including the driver- learners, are
confined to driving and loading and unloading their trucks, we find
that they constitute a homogeneous, functionally distinct group of a
type which the Board has traditionally recognized as having common
interests , apart from those of other employes, and may, if they so
desire, constitute a separate unit.? However, as the repairmen do no
driving and are under different immediate supervision, and as the
router does little, if any, driving, we find that these two classifications
may not appropriately be severed with the truckdrivers.a
Teamsters Local No. 955, a union which traditionally represents
truckdrivers, did not indicate whether it desires an election in a voting
group limited to the truckdrivers. We shall therefore direct an
election among the drivers with leave to Teamsters Local No. 955 to
withdraw its petition on notice to the Regional Director within 10 days
from the date of this Decision and Direction of Elections.
We shall also direct an election among the remaining employees in
the existing production and maintenance unit, which is presumptively
appropriate.
7Pannesvslle Works , General Chemical Division, Allied Chemical and Dye Corporation,
116 NLRB 1784 We shall make no unit determination as to "serviceman" and "hostler,"
designated in the petition , as the Employer does not employ such classifications.
8 United States Smelting, Refining and Mining Company, 116 NLRB 661.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall direct elections in the following voting groups
of employees of the Employer at its Kansas City, Kansas, meat proc-
essing and packing plant :
(a) All truckdrivers in the auto department.
(b) All production and maintenance employes, including repair-
men and routers in the auto department, plant cafeteria employees, all
employees in the assembly packing cooler, hourly and weekly paid
dockcheckers, hourly and weekly paid scalers, hourly paid storeroom
employees, fork-lift operators, and janitors; but excluding truck-
drivers, weekly paid storeroom employees, office clerical employees,
plant clerks, employees in the employees' store, research laboratory
employees, brick masons, draftsmen, standards department employees,
plant protection employees (policemen, bell pullers, firemen, watch-
men, watchmen-dressing room attendants, and matrons), and super-
visors as defined in the Act.' ,
If a majority of employees in voting group (a) select Teamsters
Local No. 955,10 that group will be taken to have indicated their desire
to constitute a separate bargaining unit, which the Board, under those
circumstances, finds to be appropriate for purposes of collective bar-
gaining, and the Regional Director conducting the elections is hereby
instructed to issue a certification of representatives to such union for
such unit. In that event, if a majority of the employees in voting group
(b) also elect to be represented by a union, then the Regional Director
is instructed to issue a certification of representatives to such union for
a separate unit of production and maintenance employees, which the
Board under such circumstances finds to be appropriate for purposes
of collective bargaining.
However, if a majority of the employees in voting group (a) do
not vote for Teamsters Local No. 955, such group will be appropriately
included in the same unit with the employees in voting group (b) and
The parties agree on the composition of this group , except that Packinghouse Workers
and Amalgamated contend the watchmen -dressing room attendants and the matrons should
be included in the production and maintenance group , while the Employer and Brother-
hood Local No. 12 contend they are guards and should be excluded . These employees are
located in the employee dressing rooms where they spend 50 to 75 percent of their time
enforcing dressing-room regulations prohibiting pilferage , horseplay , and disorder. They
report offenders or apprehend them and take them before the plant chief of police who
is their immediate supervisor . The remainder of their time is spent in tidying up the
dressing rooms and disposing of employee laundry . There is some interchange between
these employees and the watchmen , who the parties agree are guards As watchmen-
dressing room attendants and matrons enforce against employees rules to protect prop-
erty of the employer and the safety of persons on the employer 's premises , we find, in
accordance with the Board ' s policy expressed in Walterboro Manufacturing Corporation,
106 NLRB 1383 , that these two classifications are guards as defined in Section 9 (b) (3)
of the Act , and we exclude them from the production and maintenance group
10 Amalgamated stated it did not wish to be on the ballot for the election in the separate
unit. In view of the Board 's decision to pool the ballots under the circumstances described
below, we shall accord Amalgamated a place on the ballot in the election directed in the
drivers ' voting group , with leave to withdraw on notice to the Regional Director within
10 days from the date of this Decision.
ATLANTIC MILLS SERVICING CORPORATION OF CLEVELAND, INC. 65
their votes will be pooled with those in voting group (b).11 The Re-
gional Director conducting the elections is instructed to issue a certifi-
cation of representatives to the union selected by a majority of the
employees in the pooled group, which the Board in such circumstances
finds to be appropriate for purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
11If the votes are pooled, they are to be tallied by counting votes for Teamsters Local
No 955 as valid votes cast, but neither for nor against any union seeking to represent
the more comprehensive unit, all other votes are to be accorded their face value, whether
for representation by a union seeking the comprehensive unit or for no union
Atlantic Mills Servicing Corporation of Cleveland , Inc., and its
subsidiaries Atlantic Mills Menswear of Cleveland , Inc., At-
lantic Mills Fashions of Cleveland , Inc., Atlantic Mills Chil-
dren 's Apparel of Cleveland , Inc., Atlantic Mills Accessories of
Cleveland, Inc., and/or Virginia Dare Stores Corporation 1 and
Retail Clerks International Association , Local 41, AFL-CIO,
Petitioner . Case No. 8-IBC-2787. January 16,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Edward A. Grupp, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. Virginia Dare Stores Corporation, a Delaware corporation with
its principal place of business in New York City, New York, operates
self-service department stores in some five States under the trade name
of Atlantic Mills Shopping World.' Only the store located in Bedford,
Ohio, is here involved. Atlantic Mills Servicing Corporation of
Cleveland, Inc., a wholly owned subsidiary of the Virginia Dare Stores
Corporation, holds a lease on the premises in Bedford. Atlantic Mills
Menswear of Cleveland, Inc., Atlantic Mills Fashions of Cleveland,
Inc., Atlantic Mills Children's Apparel of Cleveland, Inc., and At-
lantic Mills Accessories of Cleveland, Inc., affiliated subsidiaries of
the Virginia Dare Stores Corporation, operate a ready-to-wear cloth-
ing department at the Bedford store. The parties agree that all the
above-named entities constitute the Employer herein.
1 The Employer' s name appears as amended at the hearing
2In addition, Virginia Dare Stores Corporation operates 29 retail women's ready-to-wear
stores under the Virginia Dare name in approximately 10 States. The record does not
disclose the value of annual sales made by these establishments.
117 NLRB No. 19.
423784-57-vol. 117-6