The Packers Association of Chicago, et al.

National Labor Relations Board - Board Decisions

Apr 28, 1947

73 N.L.R.B. 627 (N.L.R.B. 1947)

In the Matter of THE PACKERS'ASSOCIATION OF CHICAGO, ET AL., Eir-
PLOYER and UNITED PACKINGHOUSE WORKERS OF AMERICA, C. I. 0.,
PETITIONER -
Case No. 13-R-4060.-Decided April 08, 1947
Mr. Isadore Vise, of Chicago; Ill., for the Association.
Messrs. Harvey Mader, Herbert March, and Refugio Martinez, all
of Chicago, Ill., for the Petitioner.
Mr. Daniel D. Carmell, by Mr. Lester Asher, of Chicago, Ill., for
the Intervenor.
DECISION
AND - •
DIRECTION OF ELECTION
Upon an-amended petition duly filed, hearing in this case' was held
at Chicago, Illinois, on January 6, 8, 20, and 23, 1947, before Herman
J. DeKoven, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
The-Intervenor and the Association moved to dismiss the petition,
contending that the following amendments by the Petitioner to its
First Amended Petition, made at the hearing, are improper : (1) an
amendment to correct the name of one of the member-Companies
(H. C. Bohack Co., Inc.) and (2) an amendment to change the de-
scription of the unit alleged as appropriate, in accordance with the
Petitioner's position at the hearing, as to various inclusions and ex-
clusions. This contention is, clearly without merit, and the motions
are denied. The Intervenor also moved to dismiss the petition on the
grounds that its contract with the Association constitutes a bar to the
instant proceeding and the unit requested, by the Petitioner is inap-
ptopriate. For reasons appearing in Sections III and IV, infra, the
motions are denied. The Petitioner's request that the-Board take
judicial notice of a memorandum which it submitted in a prior pro-
ceeding is also denied. The Intervenor's request for oral argument is
denied inasmuch as the record, in our opinion, adequately presents
the issues and positions of the parties.
1As to the second amendment, evidence concerning. the, inclusions and exclusions was
fully developed by all parties , and no claim was made that additional time was needed in
order to meet the Petitioner 's position.
73 N. L. R B., No 120. -
627
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the National Labor, Relations
Board makes the following :
FINDINGS OF FACT
1. THE 13tSTNESS-OF-THE ASSOCIATION AND THE COMPANIES
The 'Packers Association of Chicago, herein called the Association,
is an Illinois corporation with its principal office in Chicago, Illinois,
and is engaged in representing, for the purposes of collective bargain-
ing its well as for other purposes, various companies which are them-
selves engaged in the meat slaughtering or casing business. Its
membership is composed of nine such companies, herein called the Com-
panies, all of which are either Illinois corporations 'or licensed to do
business in the State of Illinois. Seven of these nine Companies are en-
gaged in slaughtering,2 whereas the remaining two 3 perform casing
operations at the plants of other member-Companies as well as at
those of meat packing companies not belonging to the Association.
During the past year, each of the slaughtering Companies used at its
plant raw materials and livestock valued in excess of $1,000,000, of
which more than 5,0 percent was shipped to such plant either -directly
from points outside the State, of Illinois or indirectly through the
Union Stock Yards,from points outside that State. During the same
period, each of these Companies processed goods valued in excess of
$1,000,000, of which approximately 10 to 40 percent was'shipped out-
side the State of Illinois from its plant. -
Each of the Companies engaged in slaughtering admits, and we find,
that it is engaged in commerce within the meaning of the National
Labor Relations Act. We also find that the operations of each of the
casing Companies affect commerce within the meaning -of the Act.
'We find, in addition, that the Association is an Employer of 'the
employees of the Companies within the meaning of Section 2 (2) of
the Act.
H. THE ORGANIZATIONS INVOLVED4
The Petitioner is a labor organization affiliated with the Congress of
Industrial Organizations, claiming' to represent employees of the
Employer.
2 H C Bohack Co , Inc, 944 West 38th Place , Chicago, Illinois , Bronx Meat Company,
3840 South , Emerald Street , Chicago, Illinois; H Graver Company, 3817 South Morgan
Street , Chicago , Illinois ; Illinois Packing Company, 911 West 37th Place . Chicago, Illinois;
Lincoln Meat Company , 3804 South Halsted Street , Chicago , Illinois, Siegel Weller Pack-
ingCompany , 4535 South McDowell Avenue, Chicago, Illinois ; Wimp Packing Company,
1127 West 47th Place,. Chicago, Illinois
3Independent Casing Company, 1335 West 47th , Chicago, Illinois , Premier Casing Com-
pany, 610 West Root, Chicago, Illinois.
° A representative of the International Union of Operating Engineers, Local 399, appeared
at the hearing, but withdrew when the parties agreed that the operating engineers employed
by the Companies would be excluded from any unit herein found appropriate.
THE PACKERS ASSOCIATION OF CHICAGO, ET AL. 629
Amalgamated Meat Cutters tnd Butcher Workmen of North Amer-
ica, herein called the Intervenor, is a labor organization affiliated
with the American Federation of Labor, claiming to represent em-
ployees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Association and the Companies refuse to recognize the Peti-
tioner as the exclusive bargaining representative of employees of the
Companies until the Petitioner has been certified by the Board in an
appropriate unit.
On December 29, 1944, the Association and the Intervenor executed
a collective bargaining contract to become effective on January 1,
19,45, and to remain in full force until December 31, 1947, and "from
year to year thereafter unless terminated or amended by the parties
as herein provided." Significantly, the contract provided that either
party might give written notice, 60 days prior to December 31 of the
year 1945 or any subsequent year, of an intention to terminate, amend,
or modify it, and thus, apparently, effect its termination on any an-
niversary date commencing, with the year 1945. No such notice has
ever been given by either of the contracting parties. This contract
was the latest in a series of collective bargaining agreements between
the same parties extending over a period of about 10 years.'
On October 31, 1946, the Petitioner wrote a registered letter to each
of the 7 member-Companies of the Association which are, engaged in
slaughtering operations, claiming to represent "in a unit appropriate"
for the purposes of collective bargaining, "a majority of all employees
employed in your plant doing production work." The letters were
delivered to these Companies on November 1, 1946, prior to the opera-
tion of the automatic renewal clause of the contract. On November 7,
1946, less' than 10 days later, the Petitioner filed with the Board its
original petition, requesting an Association-wide unit.9
The Association does not maintain separate offices, its four execu-
tives are all officials of member-Companies, and it would seem that
Association business is transacted through these officials at their own
respective plants. ' , -
The Intervenor contends that its contract with the Association is
a bar to the instant proceeding. This contention is based on the argu-
ment that because, prior to the filing of the original petition, no specific
claim for an Association-wide unit was made of any party and the
Association itself was not notified of the Petitioner's representation
5 This bargaining history is set forth in detail in Matter, of Illinois Packing Company,
56 N L R B 221
6 Thus, the requirements as to the time of advancing a rival claim and filing a petition,
set forth in Matter of General -Electric X-Ray' Corporation, 67 N. L R. B. 997, have been
met.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claim, the October' 31 letters did not-constitute adequate notice of the
Petitioner's claim to an Association-wide unit; and that the original
petition, by itself, cannot preclude the contract from serving as a bar,
because it was filed subsequent to the operation of the contract's auto-
matic renewal clause. The Intervenor also argues that the claim and
_ the original petition were fatally defective in that they did not ex-
tend to the two member-Companies which are engaged in casing
operations.
The October 31 letters requested recognition "in a unit appropriate"
for bargaining purposes. In view of. the 12-year history of collective
,bargaining on an Association-wide basis, and the Board's prior hold-
ing that only an Association-wide unit is appropriate,' we are of the
-opinion that the language of these letters was sufficient to indicate
that the Petitioner was probably seeking an Association-wide -unit, or
that it was reserving the right to do so. Furthermore, considering
that the Association's executives are officials of member-Companies
and that the Association has no separate offices, the Petitioner's failure
directly to notify the Association of its claim to representation cannot
be regarded as fatal." -
It is true that the Petitioner did- not • give' notice of its claim to
representation to the 2. member-Companies 9 which are engaged in
casing operations,-and did not mention these Companies in its orginal
petition. It later amended its petition and now seeks to represent the
employees of the 2 casing Companies who regularly spend all their
working time at the plants of the other 7 member-Companies. These
employees perform casing operations at these plants and mingle with
the workers there; they, and no other employees of the casing Com-
panies, have been included within the scope of the existing contract
between the Association and-the Intervenor, and all parties agree that
they should now be included in the Association-wide unit. It is
significant, however, that there are only about 45 -such workers em-
ployed by the' casing Companies, whereas the other 7 member-Com-
panies have some 740 production and maintenance employees. The
Petitioner's representative at the hearing testified, moreover, that he
made various efforts 'to ascertain the identity of all the members of
the Association without being -informed that the 2 casing Companies
were among them. Under all the circumstances, we-are of the opinion
• that the Petitioner's omission to notify the 2 casing Companies of its
claim to representation and to include them in its original -petition,
does not render the claim or the petition defective.
See footnote 5. The Petitioner participated in that proceeding.
In, any event , as herein noted, seven out of nine ' of the Association 's membei,s were
given notice of the Petitioner 's claim, and this, in effect , constituted'notice to the Associa-
tion.
9 Independent Casing Company and Premier Casing Company.
THE PACKERS ASSOCIATION OF CHICAGO, ET AL. 631
We find, therefore, that the contract of December 29, 1944, entered
into between the Association and the Intervenor , is no bar to a current
determination of representatives. -
We find that a question affecting commerce has arisen concerning
the representation of employees of the Companies , within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
All the parties are in general agreement that the appropriate unit
should include all production and maintenance employees of the seven
member-Companies of the - Association engaged in slaughtering, as
well as those workers of the two casing member-Companies who work
at the plants of the other seven Companies . They also agree to ex-
clude from the appropriate unit - all truck drivers, engineers , mainte-
nance engineers , firemen, office employees , certain minor categories of
workers, and specified supervisory employees , ag well as all personnel
of the two casing Companies who do not actually work at the plants
of other member-Companies. The parties are in disagreement, how-
ever, as to certain groups of employees and individual workers, enum-
erated below , all of whom the Petitioner would exclude as clerical,
managerial , or supervisory employees, as the case may be. The Inter-
venor would include all the employees in dispute , in most cases on the
grounds that they perform work which , essentially , is a part of the
production process, and have been included- under all its past contracts
with the Association for some 12 years. Except where noted, _ the
Association is in accord with the Intervenor 's position.
Timekeeper ( H. C. -Boh,ack Co., Inc.) : This timekeeper , whom the
Petitioner considers an office clerical , spends most of his time entering
on time books the data taken from the time clock cards . In addition
to his regular timekeeping duties, he prepares production reports on
the hog killing department and administers first aid. He performs
most of his duties in an office occupied by plant clericals , located on the
plant floor, whereas the general office employees work in the main office
on the floor below. In common with the production and maintenance
employees , he is hourly paid , is listed on the same pay roll, has the same
terms and conditions of employment, and enjoys the same rights and
privileges . He is supervised directly by the superintendent to whom
the production and maintenance foremen report . The general office
workers, who are all salaried, have different'supervision and.are on a
different pay roll. All the foregoing facts indicate that the time-
keeper has a greater community of'interest with the production and
maintenance employees than with- the office workers. Therefore, we
shall include the timekeeper within the appropriate unit .10
10 Matter of Northwest Engineering Company, 73 N. L. A. B. 40.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
Safety man and hog scaler ( H. C. Bohack Co., Inc.) : The Petitioner
contends that these two employees are clericals . The safety man 11
spends approximately 2 hours a day making tours of the entire plant,
watching for fire and other hazards and reporting to his superior (the
superintendent ) any infractions of safety ' rules by other employees.
He spends an additional 3 hours a day preparing production reports
pertaining to yields of various carcasses . At other times he may also
prepare reports on carcasses and other products condemned by Govern-
ment inspectors . It is thus apparent that oily a small portion of his
working time is devoted to safety work, and that his clerical duties
are intimately related to the production process.
The hog scaler spends approximately 60 percent of his time in the
hog killing department , reading the weight of the hogs before they
enter , the cooler. The remainder of the time he prepares reports on
,the number of hogs killed and the number condemned.
Both the safety man and the hog scaler are on the production and
maintenance pay roll, are hourly paid, have the same terms and con-
ditions of employment and enjoy the same rights and privileges as do
the production and maintenance workers , and are supervised immedi-
ately or ultimately by the plant superintendent . Furthermore, they
have been included within the 'scope of the various contracts between
the Association and the Intervenor since 1935 . In view of all the
foregoing facts , we shall include them within the appropriate unit.
Watchmen: In this group are three watchmen employed by H.
Graver Company , three by Illinois Packing Company, and three by
-Siegel Weller Packing Company12 The'Petitioner argues that these
, watchmen are plant'-protection employees and part of management.
However, it is clear from the record that they perform the usual cus-
todial duties characteristic of watchmen and that none of them are
monitorial ; furthermore , they, come into contact only with workers in
the production and maintenance unit, and are supervised by officials
who are also responsible for production and maintenance employees.-
While the watchmen at, Illinois Packing are armed and those at Seigel
Weller are armed and deputized , none of the watchmen in the group,
are uniformed or militarized . Except for those at Seigel Weller, who
had been ' employed only about 4 months at the time of the hearing,
the watchmen in this group have been covered by all contracts between
the Intervenor and the Association . , All the foregoing facts disclose
a close community of interest between the watchmen and the produc-
ii Smith
At the hearing, the Intervenor stated that , since the watchmen at Siegel Weller wei e
members of another AFL union ( General Service Employees Local Union No 73, affiliated
with the Building Service Employees International Union , AFL)', it would not seek to
include them within the-appropriate unit unless the General Service - Union executed a
waiver and disclaimer of interest . However, in a letter to the Board dated February 18,
1947 , the Intervenor stated that , since such a waiver and disclaimer of interest had-been
secured , it desired to include the watchmen -in the appropriate unit.
I
THE PACKERS ASSOCIATION OF CHICAGO, ET AL. 633
tion and maintenance employees. We shall, therefore, include the
watchmen within the appropriate unit 13
Scaler (Lincoln Heat Company) : The' Petitioner seeks to exclude
this employee 14 from the appropriate unit on the ground that he acts
as foreman in the absence of the regular foremen of the killing floor
and tank room, and exercise supervisory authority during such pe-
riods. The Association takes no position. The sealer's normal duties
consist of weighing carcasses on the production floor, and he is an
hourly paid employee covered by the various contracts between the
Association and the Intervenor. The regular foreman, a salaried
worker, is absent from his post for a 3-week vacation period each year,
as well as for 1 or 2 weeks at other times by reason of illness or other
circumstances. During these 4 or 5 weeks, the scaler is in charge of
the 31 employees on the killing floor and tank room, but retains his
regular hourly pay rate, which is no higher than that of the highest
paid production worker in that section. During this period, the
scaler makes effective recommendations as to employment status but
has no authority to hire or discharge, such as is possessed by the
regular foreman. At all other times the scaler has no supervisory
authority whatsoever. Since he is not a regular supervisor, and
acts in that capacity only infrequently and sporadically, we find that
he is not a true supervisory employee, and shall include him within
the appropriate unlt.15
Assistant foreman (Premier Casing Company) : This individual 16
is stationed at the H. C. ' Bohack Co., Inc., plant. The Petitioner
requests his exclusion from the appropriate unit as a supervisory
employee. He exercises supervisory authority only in the infrequent
and sporadic absence of the foreman, whom the parties have agreed
to exclude as a supervisory worker, and this authority is limited to -
the power to make effective recommendations. The assistant foreman
has been included in the contract unit by the Intervenor and the Asso-
ciation. We are of the opinion that the-assistant foreman, like the
scaler (Lincoln Meat Company), does not enjoy true supervisory
status and we shall, therefore, include him in the appropriate unit.
Other alleged supervisory employees: ,The parties are in dispute
as to 22 workers employed by various member-Companies. The Peti-
tioner alleges that they- are in fact supervisory personnel and should
therefore be excluded from the appropriate unit; the Intervenor seeks
to include all of these 22 employees-; while the Association takes no
position with respect to any of them except for the foremen at Bronx
1' See Matter of Alabama Marble Company, 71 N. L R. B 275, Matter of J. t L Steel
Bai rel Company, 68 N L R B 409, Matter of Taylor Fibs e Company, 64 N. L R B 247.
1' Gilbert Dell Angelica
15 See-Matter of Youngstown Sheet and Tube Company, 71 N L. R. B. 219; Matter of
Plankvnton Packing Company , 69 N L R B 920
is Frank Rogals
634 DECISIONS OF NATIONAL LABOR 'RELATIONS -BOARD
Meat Company, whom -it would include. The 22 employees are as
follows : 3 working foremen, 2 group or gang leaders, and 1 night =
gang leader at H. C. Bohack Co., Inc.; 4 foremen at Bronx Meat
Company; 2 foremen at H: Graver Company; 1 working foreman
at Wimp Packing Company ; 5 working foremen at Illinois Packing
Company; and 4 working foremen at Siegel Weller Packing Com-
pany. Except-for 2 of the working foremen at Illinois Packing
Company'17 all the disputed foremen, working foremen: and gang
leaders were shown at the hearing to have the authority to make
changes in the status of those employees working under them, or to
make effective recommendations -for such changes. ' V
It is the Intervenor's contention that, despite such authority, the
employees in dispute should be-included in the appropriate unit by
reason of their coverage since 1935 by the various contracts with the
Association and because of an alleged custom of including such em-
ployees in other supervisory units in the meat packing industry. There
was no showing, however, that there exists in the heat - packing in-
dustry in Chicago or elsewhere a prevailing custom of including such
supervisory employees in production and maintenance units. In the
absence of such a showing, the Board will not ordinarily direct the
inclusion of supervisory employees in a rank and file unit.18 We see
no reason in this case to depart from our usual practice. We shall,
therefore, exclude from the appropriate unit all of the 22 disputed
workers, with the exception of the 2 working foremen at Illinois
Packing Company, whom we shall include in the unit.
We find that the following employees constitute a' unit appropriate
for the purposes of collective bargaining within the'meaning of Section
9 (b) of,the Act: All production and maintenance employees working
at plants of member-Companies 19 of the Packers Association, includ-
ing'the timekeeper; safety man, and hog scaler at,H.-C. Bohack-Co.,
Inc. ; the watchmen at H. Graver Company, Illinois Packing Company,
and Siegel Weller. Packing Company; the scaler at Lincoln Meat Com-
pany; the assistant foreman employed by Premier Casing Company
who is stationed at the plant of H. C. Bohack Co., Inc.; and working
foreman J. E. Mathys of the night loading gang and the working fore-
man of the cutting department at Illinois Packing Company; but
excluding truck drivers, engineers, maintenance engineers, the chief
electrician at Illinois Packing Company, firemen, the steamfitter, and
the cartman at H. C. Bohack Co., Inc., kosher butchers (shochtim),
salesmen, buyers, and office employees; the foreman in the hog kill,
coolers and loading, and beef kill departments, the working foremen
11 J. E Mathys, working foreman on the night loading gang , and Paul Riskes, in the
cutting department.
18 Cf. Matter of W. H Kistler Company, 70 N. L R. 13.1195.
10 With respect to H. C. Bohack Co, Inc, only the employees of its Chicago plant are
involved in this proceeding and are included in the appropriate unit.
THE PACKERS • ASSOCIATION OF ' CHICAGO; ET AL. 635
in the tank room and tripe house and in the offal cooler and hog kill
departments, the group (or gang) leaders in the loading and coolers
departments, and the night gang leader in the general department at
the-H. C. Bohack Co., Inc. ; the foremen of the casing, beef kill, render-
ing and tank, cooler, and night clean-up departments at Bronx Meat
Company; the foremen of the killing floor and the night gang at
H. Graver Company; the foreman of the killing floor and tank room
at Lincoln Meat Company; the foremen in the boning and cold offal
departments, the working foremen of the tank room and of the hot
offal department, and working foreman Henry Albert of the night
loading gang at Illinois Packing Company; the working foremen in
the killing, hide cellar boning, and cooler and loading departments at
Siegel Weller Packing Company; the working foremen of the killing
floor at Wimp Packing Company; the foremen employed by Premier
Casing Company and Independent Casing Company who are stationed
at plants of other member-Companies of the Association; all other
supervisory employees having. authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action; and all employees of Independent
Casing Company and of Premier Casing Company who do not perform
work at the plants of any other member-Companies of the Association.
DIRECTION OF ELECTION 20
As part of the investigation to ascertain representatives for the
purposes of collective bargaining 'with The Packers Association of
Chicago, and its member, Chicago,' Illinois, an election by secret
ballot shall be conducted as early as possible, but not later than thirty
(30) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Thirteenth Region; acting
in this matter as agent for the National Labor Relations Board, and
subject to Sections 203.55 and 203.56, of National Labor Relations
Board Rules and Regulations-Series 4, among the employees in the
unit found appropriate in Section IV, above, who were employed dur-
ing the pay-roll period immediately preceding the date of this Direc-
tion, including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and includ-
ing employees in the armed forces of the United States who present
themselves in person at the polls, but excluding those employees who
have since quite or been discharged for cause and have not been rehired
or reinstated prior to the date of the election, to determine whether they
desire to be represented by United Packinghouse Workers of America,
CIO, or by Amalgamated Meat Cutters and Butcher Workmen of
North America, for the purposes of collective bargaining, or by neither.
20 Any participant in the election herein may, upon its prompt request to, and approval
thereof by, the Regional Director, have its name removed from the ballot.