Swift & Company, Inc.

National Labor Relations Board - Board Decisions

Nov 6, 1943

53 N.L.R.B. 477 (N.L.R.B. 1943)

In the, Matter of SWIFT & COMPANY, AN ILLINOIS CORPORATION, LI-
CENSED TO TRANSA CT'' BUSINESS IN THE STATE OF NEW YORK AS
SWIFT & COMPANY, INC. (UNITED DRESSED BEEF DIVISION) and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 816, AFL
Case No. 2-R-41$3.Decided November 6, 1943
Mr. John P. Staley, of Chicago, Ill., for the Company.
Mr. Samuel J. Cohen, of New York City, for the Union.
Miss Muriel J. Levor, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon,amended petition duly filed by International Brotherhood of
Teamsters; Local 816, AFL, herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Swift & Company, an Illinois corporation, licensed
to transact business in the State of New York as Swift & Company,
Inc. (United Dressed Beef Division), New York City, herein called
the Company,' the National Labor Relations Board provided for an
appropriate hearing upon due notice before John J. Cuneo, Trial
Examiner. Said hearing was held at New York City, on October 15,
1943. The Company and the Union appeared,2 participated, and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence bearing on the issues, and
to file briefs with the Board. The Trial Examiner's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
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 office
and place of business at Chicago, is licensed to do business in the State
I A motion was made and granted at the hearing to amend the petition and other
formal documents to set torth the name of the Company , as above.
° Officers of Employees Council Union also appeared at the hearing However, after
evidence of that organization ' s dissolution was adduced , they withdrew their claim of
interest in this proceeding.
53 N. L. R. B., No. 83.
477 •
559015-44-vol. 53-32
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of New York as Swift & Company, Inc. (United Dressed Beef Di-
vision). Swift & Company maintains and operates packing plants,
warehouses, and branch houses throughout the various States of the
United States. The Company operates a branch office and plant in
New York City, with A-Hhich we ,are concerned in this proceednlg;
where it is engaged in, the slaughtering of cattle, sheep, and lamb,
which it processes and. prepares for sale ,aiid distribditioii as meat,
meat products, and byproducts. During the year ending about Sep-
tember 10, 1942, the Company purchased livestock, its principal raw
material, for use in the New York City plaint'td a value iii excess of
$1,000,000, of which approinately 90 percent was `shipped. from
points outside the State of New York. During the same period; the
Company produced and proces'sed -finished products valued at 'more
than $1,000,000, at its, New York City plant, of which approximately
33 percent was shipped to points outside the State of New York.
The Company concedes that it' is engaged in commerce within the
meaning of the National Labor, Relations Act.
II. THE ORGANIZATION INVOLVED
1. ,
International Brotherhood of Teamsters, Local 816, is a labor or-
ganization affiliated with the American Federation of Labor, admit-
ting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On August 16, 1943; th'e Unioii asserted 'ii claim 'to represeiit'a' th t-
jority of the Company's motor vehicle 'drivers and requested recogni=
tion as their collective bargaining agent. The Company iefiised to
accord such recognition unless and until the Uiiion was certified by
the Board; on the ground that Employees Council Union wa's `the cer-
tified bargaining representative of its drivers. , ' '
A statement of the Regional Director introduced in evidence At the
hearing indicates that the Union 'rep'resents a substantial n'u'mber 'f
eliiployees in the unit hereinafter found appropriate.3 1 1 '
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 UNrr
The Union claims as appropriate for collective bargaining purposes
a unit composed of the Company's chauffeurs, truck pullers, plant
3 The Regional Director repoited that the Union submitted 49 designations, of which
42, bearing apparently genuine original signatures, correspond with names on the Co`m-
pany's pay roll of August 21, 1943, which contains 56 names. - 1 11
SWIFT & COMPANY 479
drivers; and fa't ,collectors; excluding. supervisory employees, with
'which.position the Cwnliany is-in accord. The sole controversy
arises from the Union's contention, which the Company opposes, that
5 specified 'employees 4 of the Company heretofore employed within
the- afore-mentioned categories, 'and ,nowwo'rking at other duties,
be included-in the unit, since there is a possibility that they will be re-
employed at their former. activities.
,(,The 5 contested employees had' been employed by the Company
at,ivo'rk which it is conceded is within the proposed unit until they
were laid' off, because of a diminution in the Company's trucking
activities: They were severed from thegarage pay roll and were given
the -opportunity to take other positions -with the Company. When
these-men asked for information the, Company told them they Would
be, given a preference `should increased business require, the Company
to take on additional drivers. The Company takes the position that
these men are not "temporarily laid off" within the meaning of Board
decisions, since they are at pre'seilt re'gitAA empl'o'yed at other occupa-
tions and merely retain seniority rights with respect to their previous
employment ;
Four of these employees are presently employed as beef loader, veal
loader, janitor; and as timekeeper, respectively, and the Union concedes
that they,would,not be eligible to its membership were it not for their
past employment, the contingency referred to above, and' their occa-
sional employment as , emergency drivers. The record discloses that
Cirrincione, laid off Qctober 4, 1942, has been` given work as a part-
time chauffeur-for 3 days, since that date; Guadagno, laid off February
1943, 5 days; Clark, laid off May 9,1943; 3 days; and Scalone has not
w,orked.as a chauffeur since his lay-off. Upon, these facts and since it
appears that there,is no definite prospect of reemployment at occupa-
tions within the-proposed unit, we find that the 4 employees in question
should be eacluded.5
The, other contested employee,, Lyons, is now engaged in driving a
small tractor, called a "shop mule," upon the Company premises. The
Union contends that:Lyons should be•included for the reasolis it gives
with respect to the other disputed employees and on, the further ground
that:he is the.driver of a motor-propelled vehicle. The tractor is used
to pull a trailer, loaded with hides from the beef and `calf hide cellars to
the Company's,loading pier. Although Lyons is carried On the garage
payroll and punches the garage time clock, lie works under the super-
vision,of the general foreman of the hide department. His basic wage
late and, his, overtime are calculated according to the terms of the con-
tract covering the production and maintenance employees, from which
Cirrinclone , Guadagno , Clai k , Scalone, Lyons
See Matter of Utica and Mohav k Cotton Hills , 51 N L R. B 257, 261.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees requested herein are excluded as truck 'drivers. Fur-
thermore , Lyons' predecessor as tractor driver was held eligible to
vote at an election to determine the representative of the production
and maintenance employees , and was not held eligible to vote in a
consent election for the chauffeurs ' unite The position of tractor
driver in the Company 's • organization is a production job. • ,Accord-
ingly, we shall exclude Lyons from the unit. - I
We find that all chauffeurs , truck pullers , plant, drivers , and fat col-
lectors employed at the Company 's New York City plant ; but excluding
Cirrincione , Guadagno , Clark, Scalone , and 'Lyons,, and any super-
visory employees having the 'right . to hire, 'promote, discharge,
discipline , or otherwise effect changes in the status of employees, or
effectively recommend such action ,, constitute a unit appropriate for
the purposes of collective , bargaining , within .the meaning of Section
9 (b) of the Act. ' ' I ' I ^ I ,
V. THE DETERMINATION OF REPRESENTATIVES,
We' shall direct that the question concerning' representation which
has arisen be resolved by means of an election by secret ballot among
the'employees in the a ppropriate'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 Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 2, 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,
an Illinois' corporation, licensed to' transact business in the State of
New York as Swift & Company, Inc:' (United Dressed Beef Division),
New York City, an election by secret ballot shall be conducted' as early
as possible but note later than thirty' (30) days from the date of this
Direction, under the direction and supervision of the Regional
Director for the Second 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
6 This election , held September 1942, was followed by the designation of Employees
Council Union as the bargaining representative of the chauffeur unit. However, such
designation did not result in all agreement with the Company.
SWIFT & COMPANY 481
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 or not
they desire to be represented by International Brotherhood of Team-
sters, Local 816, affiliated with the American Federation of Labor, for
the purposes of collective bargaining.