The Cuhady Packing Company

National Labor Relations Board - Board Decisions

Jul 12, 1939

13 N.L.R.B. 526 (N.L.R.B. 1939)

In the Matter of THE CUDAHY PACKING COMPANY and UNITED PACK-
INGIIOUSE WORKERS OF AMERICA, LOCAL No. 21, OF THE PACKING-
I10-USE WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE
'CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. R-1318.-Decided July 12, 1939
Meat Packing Industry-Investigation of Representatives: controversy con-
cerning representation of employees : rival organizations ; refusal of the Com-
pany to recognize petitioning union as bargaining agency of employees-
Contract: with rival organization representing less than majority of employees
at time of renewal of contract, no bar to investigation of representatives-
Unit Appropriate for Collective Bargaining: dispute as to ; all production and
maintenance employees of the Company, excluding foremen, assistant foremen,
supervisory, clerical, office and temporary employees, checkers, scalers, watch-
men, stock drivers, truck drivers, the nurse, and the canteen clerk-Representa-
tives: conflicting claims of two labor organizations ; proof of substantial
adherents of both organizations ; more satisfactory bargaining relations will
result if doubt and disagreement of parties regarding designation of bargaining
agent by employees is eliminated-Election Ordered
Mr. Paul S. Kuelthau, for the Board.
Grant, Shafroth and Toll, by Mr. Henry W. Toll and Mr. Ora H.
George, of Denver, Colo., for the Company.
Mr. James Porter, of Denver, Colo., and Mr. John J. Brownlee, of
Chicago, Ill., for the United.
Mr. Louis Gelt, of Denver, Colo., for the Independent.
Mr. William Strong, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 3, 1938, United Packinghouse Workers of America,
Local No. 21, of the Packinghouse Workers Organizing Committee,
-herein called the United, filed with the Regional Director for the
'Twenty-second Region (Denver, Colorado) a petition, and on Feb-
ruary 27, 1939, an amended petition, alleging that a question affecting
commerce had arisen concerning the representation of employees of
13 N. L. R. B., No. 61.
526
THE CUDAHY PACKING COMPANY 527
the Cudahy Packing Company, Denver, Colorado, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On February 18, 1939, the
National Labor Relations Board, herein called the Board, acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On February 27, 1939, the Regional Director issued a notice of
hearing, and on March 8, 1939, an amended notice of hearing, copies of
both of which were duly served upon the Company, upon the United,
and upon Packinghouse Workers Union of Denver, International
Union of Operating Engineers, Local No. 1, Amalgamated Meat
Cutters and Butcher Workmen of North America, Local No. 641, and
Delivery and Taxi Cab Drivers and Helpers Union, Local No. 435,
labor organizations purporting to represent employees directly affected
by the investigation. On March 10, 1939, Independent Packinghouse
Workers Union of Denver, alleging that it is the successor of the
Packing House Workers Union of Denver, filed a motion for permis-
sion to intervene. The motion was granted by the Trial Examiner.
Packinghouse Workers Union of Denver and Independent Packing-
house Workers Union of Denver are herein collectively referred to as
the Independent. Pursuant to the notice and amended notice, a hear-
ing was held on March 10, 11, 13, 14, 15, and 16, 1939, at Denver,
Colorado, before Patrick H. McNally, the Trial Examiner duly desig-
nated by the Board. The Board, the Company, the United, and the
Independent' were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties. During the course of the hearing numerous motions, ob-
jections to the admission of evidence, and offers of proof were made
by various parties, and were ruled upon by the Trial Examiner. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The ruling are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Cudahy Packing Company was incorporated in Maine in 1915,
and is the successor of Armour Cudahy Packing Company, an Illinois
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation. It is principally engaged in the purchase and slaughter
of livestock and the processing and marketing of products therefrom.
In addition to its Denver plant, which is involved in this proceeding,
it maintains and operates numerous other plants and branch houses
throughout the United States, Canada and Australia.' At the Denver
plant, the livestock and raw materials purchased and used each year
exceed in value the sum of $500,000. Ten per cent of such purchases
are made at points outside the State of Colorado. The Company pur-
chases a substantial quantity of livestock from the Denver Union
Stockyards. One-third of the livestock sold by the Denver Union
Stockyards is purchased and brought by the latter from five neighbor-
ing States. Twenty per cent of the finished products of the Denver
plant are sold and shipped to States other than Colorado.
At the time of the hearing, the Company employed about 270
persons.
II. THE ORGANIZATIONS INVOLVED
United Packinghouse Workers of America, Local No. 21, of the
Packinghouse Workers Organizing Committee, is a labor organization
affiliated with the Congress of Industrial Organizations. It admits
to membership production and maintenance employees of the Com-
pany, excluding foremen, assistant foremen, supervisory, clerical,
office, and temporary employees, checkers, watchmen, stock drivers,
truck drivers, the nurse, the canteen clerk, and employees of the Credit
Union.
Independent Packinghouse Workers Union of Denver is an unaffili-
ated labor organization, admitting to membership production and
maintenance employees of the Company, excluding executives, super-
intendents, foremen, supervisors, salesmen, and office and temporary
employees.
III. THE QUESTION CONCERNING REPRESENTATION
Since the early part of 1938, the United has, on numerous occasions,
sent letters to the Company stating that the United represented a
inajorty of the Company's employees and requesting that the Com-
pany engage with the United in collective bargaining regarding
wages, hours, and conditions of employment. The Company admits
that it received such letters and did not reply to them. During this
period, also, representatives of the United on numerous occasions
1A further description of the business of the Company appears in Matter of The
Cudahy Packing Company and Packinghouse Workers, Local Industrial Union No. 62,
affiliated with the Committee for Industrial Organization , 5 N. L. R . B. 472.
THE CUDAHY PACKING COMPANY 529
-telephoned to and spoke with various officials of the Company, re-
peating, in substance, the claims and requests contained in the letters.
The Company has refused to recognize or bargain with the United
as sole collective bargaining agent of its employees. The Company,
the Independent, and the United disagree as to the appropriate unit.
The Independent introduced in evidence a contract, expiring in
June 1938, between it and the Company, granting the Independent
sole collective bargaining rights, and an extension agreement, entered
into in May 1938, continuing the original agreement, as amended,
indefinitely, subject to termination upon notice by either party.
The evidence as to membership of the Independent indicates that
at the time when its contract with the Company was renewed, the
Independent was not the duly designated collective bargaining agent
of a majority of the Company's employees within the unit which we
below find to be appropriate.2 In any event more than a year has
passed since the renewal date of the contract.' The contract, there-
fore, is no bar to this proceeding.
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section 1 above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
During the hearing, representatives of the United stated that all
production and maintenance employees of the Company, excluding
foremen, supervisory, clerical (including shipping and receiving
2 See Matter of Charles Cushman Shoe Company et al. and United Shoe Workers of
America, 2 N. L. R. B. 1015; Matter of American-West African Line, Inc. and National
Marine Engineers ' Beneficial Association, 4 N. L. R. B. 1086 ; Matter of McKesson it
Robbins, Inc., Blumauer Frank Drug Division and International Longshoremen CC Ware-
housemen8 Union, Local 9, District 1, affiliated with the C . I. 0., 5 N L. R. B 70;
Matter of American France Line et al. ( Shepard Steamship Company ) and International
Beamenls Union of America, 7 N. L R. B 79.
See Matter of Metro -Goldwyn-Mayer Studios and Motion Picture Producers Assn,
et al. and Screen Writers' Guild, Inc., 7 N. L. R. B . 662; Matter of Hubinger Company
and Corn Products Workers Union, No. 19931, and Hubinger Company Employees Repre-
sentation Plan, 3 N. L. R . B 802 and 4 N. L. R. B. 428; Matter of Seiss Manufacturing
Company and Committee for Industrial Organization , 7 N L. R. B 481
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerks, and others engaged partly in clerical duties), office, and tem-
porary employees, checkers, some of the scalers, watchmen, stock
drivers, truck drivers, the nurse, and the canteen clerk, constitute a
unit appropriate for the purposes of collective bargaining.4
The Independent claims that the appropriate unit consists of all
production and maintenance employees of the Company, with the
exception of executives, superintendents, salesmen, office force, and
temporary employees. The Independent also stated that while fore-
men were to be,classed as supervisory employees and excluded from
the unit, assistant foremen should be included in the unit.
The Company took the position that all the persons in its employ,
excepting foremen, assistant foremen, those acting in a supervisory
capacity, and laid-off employees constitute the appropriate unit.
All the parties agree to the exclusion of foremen and supervisory
employees. We find that department superintendents, assistant de-
partment superintendents, assistant foremen, and working straw-
bosses are supervisory employees, and we shall, therefore, exclude
them, together with foremen. We shall also exclude K. Saunders,
an inspector, who performs supervisory duties.
The clerical employees, checkers, watchmen, stock drivers, truck
drivers, nurse, and canteen clerk, employed by the Company, are en-
gaged in neither production nor in maintenance , and we shall exclude
them from the unit.5
Both unions request the exclusion from the unit of temporary em-
ployees. The Company lists 12 such employees on its March 4 pay
roll; as employees of the "hide cellar." It appears that these em-
ployees work possibly 1 to 3 days some weeks, and do not work at all
other weeks, and that they are often recalled by the Company when
there is additional work to be done in the hide- and pick-up depart-
ment. We shall exclude them from the unit.e
From the evidence as to the tasks performed by scalers, it appears
that they are engaged primarily in clerical work and take very little
4In its amended petition, the unit as claimed by the United to be appropriate was
stated as consisting of all production and maintenance employees, including truck drivers,
but excluding office employees , clerical workers, department clerks , salesmen , watchmen,
supervisory employees , strawbosses , temporary employees, and employees of the Credit
Union
I In proceedings involving the meat-packing industry , we have excluded stock drivers,
truck drivers, checkers, and watchmen from a production and maintenance unit Matter
of Cudahy Packing Company and Packing House Workers Union Local No. 5, Amalgamated
Meat Cutters and Butcher Workmen of North America, 4 N L R B 39; Matter of
Armour & Company and United Packing House Workers Industrial Local Union No 389,
affiliated with C. 1 0., 7 N. L. R. B 710; Matter of Armour & Company and United
Packing House Workers Industrial Union 767, affiliated with the C I. 0, 9 N. L R. B
1239.
See Matter of Armour & Company and Amalgamated Meat Cutters and Butcher Work-
men of North America, Local Union No. 413, 5 N L R B. 975 Matter o f Armour &
Company and United Packing House Workers, Industrial Union No . 893, through Packing
House Workers Organizing Committee , Affiliated with the C 1 0, 12 N L R. B. 49.
THE CUDAHY PACKING COMPANY 53X_
part in the production process. We shall exclude them as clerical
employees.7 We shall also exclude employees of the Credit Union,
as they are not employed by the Company.
We find that all production and maintenance employees of the.
Company, excluding foremen, assistant foremen, supervisory, cleri-
cal, office, and temporary employees, shipping and receiving clerks,,
checkers, scalers, watchmen, stock drivers, truck drivers, the nurse,
and the canteen clerk, constitute a unit appropriate for the purposes.
of collective bargaining and that said unit will insure to employees,,
of the Company the full benefit of their right to self -organization and,
to collective bargaining and otherwise effectuate the policies of the
Act.
VI. THE DETERMINATION OF REPRESENTATIVES
From the Company's pay roll for March 4, 1939, in evidence, it:
appears that on that date there were 157 persons within the unit-
which we have found to be appropriate.
The United introduced in evidence 147 membership cards signed
during 1938 by persons within the unit. It also introduced petitions,
signed by 141 persons in the unit within the 2 months preceding the,
hearing, designating the United as their bargaining agent. The.
Independent introduced petitions signed by 52 persons 43 of whom
are in the unit, designating the Independent as their bargaining-
agent. The authenticity of each of the signatures to the afore-men-
tioned cards and petitions was established at the hearing.
The United claims that it should be certified upon the proof`
offered. The Company and the Independent, however, assert that
an election must be held in order to ascertain the true wishes of the.
employees. We are thus faced with conflicting claims as to which of
two labor organizations, each designated by a substantial number of
the employees involved, is entitled, under the Act, to represent all
of them. Our determination of representatives looks; to the initia-
tion of collective bargaining between the Company and its employees.
We believe that since each of two contesting labor organizations has,
proved substantial adherence among the employees the bargaining
relations which result will be more satisfactory from the beginning'
if the doubt anjl disagreement of the parties regarding the wishes of
the employees is, as far as possible, eliminated. Although in the.
past we have' certified representatives without an election upon a
showing of the sort here made, we are persuaded by our experience
that the policies of the Act will best be effectuated if' the question of
7 See Matter of Armour & Company and Packing House Workers Organiping, Committee,
for United Packing House Workers Local 347, etc, 8 N L . R R 1100;
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation which has arisen is resolved in an election by secret
ballot. We shall, accordingly, direct that such an election be held.'
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of the Cudahy Packing Company, Denver,
Colorado, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. The production and maintenance employees of the Company,
•excluding foremen, assistant foremen, supervisory, clerical, office and
temporary employees, checkers, scalers, watchmen, stock drivers,
truck drivers, the nurse, and the canteen clerk, constitute a unit ap-
propriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the National Labor Relations Act.
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 Re-
lations Act, and pursuant to Article III, Section 8,• of National La-
bor Relations Board Rules and Regulations-Series 1, as amended,
it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining,
an election by secret ballot shall be conducted within fifteen (15)
days from the date of this Direction of Election under the direction
and supervision of the Regional Director for the Twenty-second
Region, acting in the matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and.
Regulations, among the production and maintenance employees of
the Cudahy Packing Company, Denver, Colorado, who were em-
ployed by the Company during the pay-roll period last preceding the
date of this ,Direction, including employees who did not work dur-
ing such pay-roll period because they were ill or on vacation, but
'It should be noted that we are not here confronted with the necessity of deciding,
upon the testimony and documentary evidence in the record , whether on the date of an
alleged refusal to bargain , the union represented a majority of the employees in the
appropriate unit. That question could not be answered by an election, for the result of
a present election would not show the union's authority on the particular past date in
question . Were it necessary to decide in the present case whether the testimony and
documentary evidence in the record did or did not establish a majority for the United, we
would find that it did However, it is not necessary in this proceeding to make such a
determination on the present record. We are here concerned with establishing repre-
sentatives for future bargaining purposes , and under the circumstances we think that
such future bargaining will best be effectuated by holding an election by secret ballot.
THE CUDAHY PACKING COMPANY 533
excluding foremen, assistant foremen, supervisory, clerical, office and
temporary employees, checkers, scalers, watchmen, stock drivers
truck drivers, the nurse, and the canteen clerk, and all employees who
have since quit or have been discharged for cause, to determine
whether they desire to be represented by the United Packinghouse
Workers of America, Local No. 21, of the Packinghouse Workers
Organizing Committee, affiliated with the Congress of Industrial
Organizations, or by the Independent Packinghouse Workers Union
of Denver, or by neither, for the purposes of collective bargaining.
MR. EDWIN S. SMrru, dissenting :
I see no reason, in view of previous decisions of the Board based on
similar evidence, why the United should not in this case be certified as
the collective bargaining representative, without holding an election.
Both on the basis of the membership cards and the petition which
the United submitted, it has the support of a clear majority of the
employees in the unit found to be appropriate. There is no indica-
tion from the record that the Independent in an election could
successfully contest this majority.
The process of certification has been wisely used by the Board
to facilitate prompt collective bargaining in cases where the fact of
majority adherence to a particular labor organization is made amply
clear at a hearing at which all sides are free to advance their claims.
I see no warrant for concluding, as does the majority opinion in
this case, that "the doubt and disagreement of the parties regarding
the wishes of the employees" has not been satisfactorily disposed of
by the evidence in the record.
SAME TITI.E]
AMENDMENT TO DIRECTION OF ELECTION
July 26, 1939
On July 12, 1939, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in
the above-entitled proceeding. The Direction of Election provided
that an election be held within fifteen (15) days from the date of
the Direction, under the direction and supervision of the Regional
Director for the Twenty-second Region (Denver, C'olorado).
The Board hereby amends the Direction of Election' by striking
therefrom the words "within fifteen (15) days from the date of
this Direction of Election" and substituting therefor the words
"within thirty (30) days from the date of this Direction of Election."
13 N. L. R. B., No. 61a.
187930-39-vol. 13-35