Swift & Co.

National Labor Relations Board - Board Decisions

Dec 31, 1959

125 N.L.R.B. 1408 (N.L.R.B. 1959)

1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or be replaced All of the strikers who did not return to work have
been permanently replaced except Robert Beard, and each was advised
by letter that he had been replaced Robert Beard asked to be given
his job back and the Employer offered it to him However, Beard
did not return but chose to work on a farm As these employees were
engaged in an economic strike which began more than 12 months be-
fore the election which is being directed in this case, and inasmuch
as they have either been permanently replaced or chose not to return,
we find that they are not eligible to vote in the election
[Text of Direction of Election omitted from publication
Iowa Packing Company, Division of Swift & Company and
National Brotherhood of Engineers, Firemen & Power Equip,
ment Operators,2 Petitioner. Case No, 18 RO-4039 Decem-
ber 31, 1959
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Richard P O'Connell,
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 involved claim to represent certain
employees of the Employer a
3 No question affecting commerce exists concerning the repre-
sentation of employees of the Employer within the meaning of Sec-
tion 9(c) (1) and Section 2(6) and (7) of the Act.
The Petitioner seeks to sever and represent a unit of all employees
in the Employer's steam and power department at its Des Momes,
Iowa, plant The Employer and the Intervenor moved to dismiss
the petition contending, inter alia, that NBE, ostensibly organized to
represent powerhouse employees, is fronting for an industrial union,
National Brotherhood of Packinghouse Workers (herein called
1 The name of the Employer appears as corrected at the hearing
"Hereinafter called NBE
"The Employer and the Intervenor, United Packinghouse Workers of America, Local
89, AFL-CIO , refused to stipulate that NBE was a labor organization within the
meaning of the Act As the record shows that the purpose of NBE is to negotiate with
employers on behalf of employees concerning wages, hours , and other working conditions
and as it admits employees to membership , we find that NBE is a labor organization
Stewart Die Casting Division (Bridgeport ) of Stewart Warner Corporation, 123
NLRB 447
125 NLRB No 125
IOWA PACKING CO., DIVISION OF SWIFT & CO. 1409
NBPW), with the purpose of circumventing the "traditional repre-
sentative" test as set forth in the American Potash decision.4
The record reveals that the predecessor of NBPW was at one time
the exclusive bargaining agent for all production and maintenance
employees at the Employer's plant. However, in 1943, the Inter-
venor succeeded in winning a representation election at the plant, and
it has, from that time until the present, continually represented the
Employer's employees in a production and maintenance unit. In the
years 1944 through 1954, NBPW attempted to regain its former
status in the plant. It filed a total of 13 petitions for various units,
of which 8 were dismissed, 2 were withdrawn, and 3 resulted in elec-
tion defeat. The last of these petitions, filed in 1954, requested the
severance of the steam and power department, the identical unit now
being sought by NBE, but that petition was dismissed on the ground
that NBPW was not a traditional representative of powerhouse
employees.'
The record is silent regarding NBPW's organizational activities at
the plant during the next 4 years, but in October 1958, NBPW held a
meeting at its national headquarters in Des Moines, Iowa, at which
NBE was established and a constitution adopted by those present.
Although NBE's constitution makes provision for five constitutional
officers, only the office of executive secretary was filled at that time, or
subsequently. The individual who was elected to that office was Don
Mahon, the national president of NBPW.
Nine months later, on June 15, 1959, NBE held its second meeting.
Only three persons were in attendance, namely, Mahon, Terry,
president of Local 56, NBPW, and Erickson, secretary-treasurer of
Local 56, NBPW, all of whom are officers of NBPW as well as rank-
and-file employees of the Employer's powerhouse department.
Shortly before this meeting, Mahon had resigned as executive secre-
tary of NBE, and Erickson had resigned as secretary-treasurer of
Local 56, NBPW. The three in attendance at the meeting elected
Erickson to the office vacated by Mahon. The instant petition was
filed 14 days later.
Although NBE has a constitution and bylaws, a bank account,
dues-paying members, and has participated in a Board-conducted
election where it sought to sever a powerhouse unit,6 we are convinced
that NBE is not an independent, autonomous organization devoted
to the representation of powerhouse employees, despite the facade of
a separate identity, because of the manner in which it was organized
' American Potash & Chemical Corporation , 107 NLRB 1418.
67owa Packing Company, Case No. 18-RC-2299 (unpublished).
6 Goetz Brewing Company, Case No. 1'7-RC-284'8 (unpublished ). NBE was the Peti-
tioner in this case , but lost the election to the Intervenor, Brotherhood of Operating
Engineers . The question of whether NBE was fronting for NBPW was not raised.
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its affairs are being conducted .' Even though Mahon, Terry, and
Erickson are all employees in the unit which NBE seeks to sever,
the inference that they organized NBE as an adjunct or satellite of
NBPW is inescapable in view of their status as officers of the latter,
and the close relationship between the two organizations . Thus, the
initiative for the formation of NBE came from one or more of the
three NBPW officials , its meetings have been called by, presided over,
and in fact attended mainly by themselves , and they have nominated
and elected themselves to the offices of NBS. We believe that all the
foregoing gives rise to a strong inference of fronting and that the
evidence was plainly sufficient to shift the burden to NBE to go for-
ward with additional evidence to rebut such inference and to establish
that it was , in fact, independent of NBPW. Its failure to do so may
be taken as its inability to do so.s
As NBPW itself is not qualified to seek severance of a powerhouse
unit because it is not a traditional representative of the . employees
engaged in such work, it follows that the Petitioner , which is acting in
behalf of NBPW, is likewise disqualified . We shall , therefore, grant
the motions of the Employer and Intervenor to dismiss the petition.
[The Board dismissed the petition.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
4 Cf. Vickers Incorporated, 122 NLRB 155. In this case the Board found, despite some
sharing of facilities with another union, that the petitioning union was autonomous and
independent . One of the factors relied upon for this conclusion was that it had been
formed through the consolidation of independent craft locals.
8 R. J. Reynolds Tobacco Company , 83 NLRB 348.
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