Vernon Calhoun Packing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1957

117 N.L.R.B. 104 (N.L.R.B. 1957)

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That the craft severance "problem is one of administration" was
expressly recognized by the Board in what has for 3 years stood as
the cardinal pronouncement on the subject.16 The heart criterion of
that decision was that the Board proposed "to exercise great care in
making certain that in the administration of this rule only groups
exercising genuine craft skills will be embraced within the ambit of
the rule, and that the requirements will not be relaxed over a period
of time." [Emphasis supplied.] The majority's decision here is a
complete reversal of one of the more important implementations of
that rule. Such action, without substantive reason, raises an aura
of uncertainty about the American Potash decision itself. When sub-
stantive reasons appear, be they of law, fact, or policy, I have joined in
reversing earlier decisions of this Board, and will do so again. I
think it administratively inadvisable, however, to do so in th^ absence
of persuasive, material factors. Precedents, if they are to have value
as guides for conduct, should not lightly be reversed unless changing
conditions have destroyed the reasons underlying them. I do not
find such change present in the instant case. Therefore, I would dis-
miss the petition in this case.
16 See American Potash S Chemical Corp., supra, at 1423.
Vernon Calhoun Packing Company, Inc. and Local 103, Amalga-
mated Meat Cutters & Butcher Workmen of North America,
AFL-CIO , Petitioner . Case No. 16-RC-1937. January 25,1957
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 J. Howard Stark, 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 a Texas corporation engaged in the meat pack-
ing business at Palestine, Texas. The record indicates that most of
the Employer's sales appear to be of an intrastate character. However,
during the 12-month period ending June 30, 1956, the Employer sold
hides valued at $78,572.74 to H. Elkan & Co., an Illinois corporation,
which concern paid for and accepted delivery of its purchase at the
Employer's premises. The Employer also sold additional hides and
other byproducts valued in excess of $45,000 to 2 Texas concerns. The
record further indicates that H. Elkan & Co. shipped out of the State
of Texas all of the hides which it purchased and that the other 2
purchasers were concerns each of which annually shipped goods valued
in excess of $50,000 outside the State of Texas.
117 NLRB No. 27.
VERNON CALHOUN PACKING COMPANY, INC. 105
In view of the foregoing circumstances, we find that the Employer
is engaged in commerce within the meaning of the Act. As the sale
to H. Elkan & Co. may be treated as the sale of goods to a concern
which in turn shipped goods valued at $50,000 or more directly outside
the State of Texas and therefore falls within the Board's "indirect
outflow" standard,' we find that the Employer during the 12 months
in question sold goods valued in excess of $100,000 to concerns which
were engaged in interstate commerce within the meaning of the
Board's jurisdictional standards, and therefore it will effectuate the
policies of the Act to assert jurisdiction herein.'
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists 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. The parties are in general agreement as to the composition of
the, requested unit of production and maintenance employees. They
also agree that Plant Manager George Hutcherson, Otto Myers, who
is in charge of the sausage department, and Robert Vaughn, who is
in charge of the kill floor, are supervisors and should be excluded
from the unit .3 The parties differ, however, as to the supervisory
status of the following individuals : J. B. O'Neal, T. J. Chapman,
E. H. Chapman, Ben Edwards, J. E. Williams, and J. E. Harris. The
Employer would exclude them on the ground that they are supervisors.
J. B. O'Neal is in charge of the beef department where he directs
the work of some 2 to 5 employees. According to the testimony of the
Employer's representative, O'Neal has the authority effectively to
recommend the hiring and discharge of employees in his department
and that he has been so notified of his authority. In view of the
foregoing, we find that J. B. O'Neal is a supervisor within the mean-
ing of the Act, and, therefore, we shall exclude him from the unit.
T. J. Chapman and E. H. Chapman are brothers employed in the
shipping department along with three other workers. Their duties
are to fill orders and load trucks. Although the Employer's repre-
sentative testified that both T. J. Chapman and E. H. Chapman have
authority effectively to recommend the hire and discharge of other
employees, it appears that E. H. Chapman was never informed that he
possessed such authority. Moreover, the record discloses that T. J.
Chapman is normally in charge of the department, and that E. H.
1 Bush & Stokes Company , 111 NLRB 1142
2 Jonesboro G'r'ain Drying Cooperative , 110 NLRB 481 , 483-484 . It is thus unnecessary
to consider whether the sale to H Elkan & Co. might be treated as direct outflow.
3 The parties failed, apparently as an oversight, to take any position or put any evi-
dence in the record with respect to the supervisory status of Lee Williams, assistant
plant manager . In view of these circumstances , we are making no determination of his
status.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chapman is supposed to exercise his supervisory authority only during
the infrequent and irregular absences of T. J. Chapman. In such
circumstances, we find that only T. J. Chapman possesses supervisory
authority within the meaning of the Act. Accordingly, we shall ex-
clude T. J. Chapman from the unit, but shall include E. H. Chapman
as the latter, even if he possesses supervisory authority, would appear
to exercise it only sporadically.
Ben Edwards is employed in the boning department and does all
of the plant's boning work. Although the Employer contends that
Edwards has the authority effectively to recommend the hire and
discharge of employees, it appears that he is at present, and custom-
arily, the only employee in the meat boning department. While on
occasion there may be 1 or 2 other full-time or part-time employees
in his department, there is evidence that Edwards was never informed
that he had any supervisory authority to exercise in his department.
In the circumstances, we find that the evidence in the record does not
support a finding that Ben Edwards is a supervisor within the meaning
of the Act .4 Accordingly, we shall include him.
J. E. Williams is 1 of 7 or 8 truckdrivers engaged in delivering the
Employer's products. He is the oldest employee in point of service.
He works a regular schedule of hours and is paid no more than some
of the other drivers. On the infrequent occasions when new drivers
are hired, Williams checks their qualifications as drivers, and in con-
nection therewith submits certain recommendations upon which the
Employer relies in deciding whether or not to retain the employee as
a driver. In view of the effective authority Williams possesses to
recommend the discharge or retention of a new employee, we believe
that Williams is a supervisor within the meaning of the Act. Ac-
cordingly, we shall exclude him from the unit.'
J. E. Harris is assistant to Otto Myers, the head sausagemaker. As
indicated, there is no dispute with regard to the supervisory status of
Otto Myers, and it is clear that Myers, in addition to his authority
effectively to recommend the hire or discharge of other employees,
exercises responsible direction of the work of 10 or more employees
in the sausage department. As Myers' assistant, Harris is in complete
charge during Myers' absence, which absence apparently occurs with
some regularity and frequency during the course of the year, and the
record shows that Harris exercises all of Myers' authority during the
latter's absence. In the circumstances, we find that J. E. Harris is a
supervisor within the meaning of the Act, and we shall therefore
exclude him from the unit.
Accordingly, we find that all production and maintenance employees
at the Employer's Palestine, Texas, plant, including gang leaders,
6 Girdler Company, et al., 115 NLRB 726.
5 See Pittsburgh Plate Glass Co, 115 NLRB 976.
THE MARLEY COMPANY 107
,truckdrivers, and plant clerical employees, but excluding office clerical
employees, professional employees, guards, watchmen, and super-
visors 6 as defined in the Act, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Election omitted from publication.]
As discussed above, we are also excluding as supervisors , J B O'Neal, T. J. Chapman,
J. E. Williams and J . E. Harris.
The Marley Company and Laurence Moore and Kenneth Divan
Local 269, United Brotherhood of Carpenters and Joiners, AFL-
CIO' and Laurence Moore and Kenneth Divan
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO and Laurence Moore and Kenneth Divan. Cases Nos. 13-
CA-1827,13-CB-3592, and 13-CB 381. January 29,1957
DECISION AND ORDER
On June 10, 1955, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents, namely, The Marley Company, hereinafter called
the Company, and Local 269, United Brotherhood of Carpenters and
Joiners, AFL-CIO, hereinafter called the Local, had engaged in and
were engaging in certain unfair labor practices, and recommending
that they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that Respondent Marley had
not engaged in certain other alleged unfair labor practices, and that
Respondent United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, hereinafter called the International, had not
violated the Act, as alleged in the complaint, and recommended that
these allegations be dismissed. Thereafter, the General Counsel and
Respondent Local filed exceptions to the Intermediate Report. The
General Counsel also filed a brief in support of its exceptions and
Respondent Marley was permitted to file a reply brief.2
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
1 The AFL and CIO having merged subsequent to the hearing in this proceeding, we are
amending the identification of the affiliation of the Unions accordingly.
S This reply brief was accepted by the Board on August 8, 1955.
117 NLRB No. 28.