Wilson and Co., Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1948

80 N.L.R.B. 1466 (N.L.R.B. 1948)

In the Matter Of WILSON AND CO., INC.,' EMPLOYER and AMALGAMATED
MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, A. F. of
L., PETITIONER
In the Matter Of WILSON AND CO., INC., EMPLOYER and INTERNATIONAL
UNION OF OPERATING ENGINEERS, LOCALS 38-38A, A. F. OF L., PETI-
TIONER
Cases Nos. 17-RC-238 and 17-RC-292, respectively.Decided De-
cember 27, 1948
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed, a hearing in the above consol-
idated cases was held before a hearing officer of the National Labor
Relations Board. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner in Case No. 17-RC-238, herein called the Amal-
gamated; the Petitioner in Case No. 17-RC-292, herein called the
Operating Engineers; and Local 62, United Packinghouse Workers of
America, C. I. 0., herein called the Packinghouse Workers, are labor
organizations claiming to represent employees of the Employer.
3. A question of representation affecting commerce exists concerning
certain employees of the Employer, within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act 2
The name of the Employer appears as amended at the hearing.
• Chairman Herzog and Members Reynolds and Gray.
The Employer asserts that the pendency of unfair labor practice charges filed against
the Employer by United Packinghouse Workers of America C . I. 0., the parent organiza-
tion with which Local 62 is affiliated , constitutes a bar to this proceeding . We find no
80 N. L. R. B., No. 229
1466
WILSON & CO., INC. 1467
4. The appropriate unit; the determination of representatives:
The Amalgamated seeks to represent a unit composed of all produc-
tion and maintenance employees at the Employer's 27th and Y Streets
plant, Omaha, Nebraska, including hourly paid scalers, checkers,
gang leaders, yard drivers, and restaurant employees, but excluding
office and clerical employees, wholesale market employees, watchmen,
assistant foremen, foremen, superintendents, and all other supervisors.
The Operating Engineers seeks to represent a unit composed
of all employees in the boiler and engine room of this plant,
excluding all salaried and clerical employees . watchmen, guards, pro-
duction employees, and supervisors. The Employer and the Pack-
inghouse Workers 3 agree generally that the production and mainte-
ance unit sought by the Amalgamated is appropriate. However, both
the Employer and the Packinghouse Workers assert that the unit re-
quested by the Operating Engineers is inappropriate, contending that
the boiler and engine room employees should not be severed from the
plant-wide unit established through a 6-year history of collective bar-
gaining at the 27th and Y Streets plant. The Amalgamated does not
object to the unit proposed by the Operating Engineers.
At the time of the hearing, there were 19 employees in the proposed
boiler and engine room unit . These employees are classified as engi-
neers, firemen, temperature men, and oilers. All work under the gen-
eral supervision of the master mechanic. They are quartered in a
room that is physically separated from those of the production work-
ers. They perform closely interrelated functions in connection with
the distribution of steam and refrigeration throughout the plant.
None performs any production work. These employees compose an
identifiable skilled group of a sort that we have frequently held may
merit in the Employer ' s objection . The Packinghouse Workers has waived any right
to object to an election held in the instant proceeding on the basis of any acts alleged as
unfair labor practices in its charges . See Matter of New England Itetinning , Inc., 74
N L R. B. 938, 939.
The Employer also contends that the Board is required, under the amended Act , to con-
duct an investigation for the purpose of determining whether the Packinghouse Workers is,
in fact, in compliance with the provisions of Section 9 (h), notwithstanding the filing of
non-Communist affidavits by the union ' s officers under this section . We find no merit in
this contention . In Matter of Craddock -Terry Shoe Corporation , 76 N. L. It. B. 842, it was
stated :
It is not the purpose of the statute to require the Board to investigate the authen-
ticity of truth of the affidavits which have been filed . Persons desiring to establish
falsification or fraud have recourse to the Department of Justice for a prosecution
under Section 35 (a) of the Criminal Code.
Since 1942, the Packinghouse Workers has represented the employees involved herein
pursuant to collective bargaining agreements . The most recent contract expired on
August 11 , 1948, and neither the Employer nor the Packinghouse Workers urged it as a
bar to this proceeding.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
function as a separate collective bargaining Unit .4 We believe that
they may, if they so desire, constitute a separate unit. They may also
continue as part of the production and maintenance unit in which
they have been included for more than 6 years .5
The parties are in disagreement as to the following categories and
classifications of employees, whom the Amalgamated and the Pack-
inghouse Workers would include in the production and maintenance
unit, and the Employer would exclude :
Scalers; checkers: There are approximately 10 or 12 employees in
each of these classifications. The scalers perform the customary
duties of their occupation. Some of them, however, in addition to
their usual duties, record the weights of meat products processed by
production employees for piece-work payment purposes and maintain
the time records of the latter. The checkers keep records of the
product in its final stage from plant to shipment. As the scalers and
checkers have been bargained for as part of the plant-wide unit at this
plant and have been included in production units at other similar
plants of the Employer, we shall include them in the production and
maintenance units Although the Amalgamated and the Packing-
house Workers seek to include only the hourly paid scalers, the record
shows that there are also weekly paid scalers performing the same
functions and duties as those who are hourly paid. As the difference
in manner of payment appears to arise from administrative reasons
rather than from a difference in functions, we perceive no reason
to distinguish between the hourly paid scalers and those who are paid
on a weekly basis. Accordingly, we shall also include the weekly
paid scalers in the production and maintenance unit.'
Yard drivers; restaurant employees; garage employees, and truck
drivers: There are approximately 17 employees classified as yard
drivers, or livestock handlers. The duties of these employees are
primarily concerned with the caring and feeding of livestock on the
hoof. There are approximately 10 restaurant or cafeteria employees,
and 20 garage employees, including truck drivers. The restaurant
and garage employees and truck drivers perform the customary
duties of their occupations. As all these employees have been bar-
gained for as part of the plant-wide unit at the 27th and Y Streets
4 Matter of General Motors Corporation, 76 N. L. R. B. 879; Matter of The Standard
Steel Spring Company, 75 N L. R. B. 471 ; Matter of E. I. duPont de Nemours & Company,
Inc, 66 N. L. R. B. 631; and Matter of Swift d Company, 59 N. L. R. B. 1417.
5 Matter of E I. duPont de Nemours & Company, Inc., Neoprene Plant, 73 N. L. R. B. 439.
6 Matter of Memphis Packing Company, 56 N. L. R. B. 1120, 1123.
7 Matter of Agar Packing and Provision Corporation, 62 N. L. R. B. 858, 861.
WILSON AND CO., INC. 1469
plant and, with the exception of garage employees and truck drivers,
have been included in production units at other similar plants of the
Employer, we shall include them within the production and mainte-
nance unit .8
Although the yard drivers located at the Stockyard Exchange are
paid on a weekly basis , they perform the same functions and duties
as those located at the plant. As in the case of the scalers, we per-
ceive no basis to distinguish between the hourly paid yard drivers
and those who are paid on a weekly basis. Accordingly, we shall
include the weekly as well as the hourly paid yard drivers within the
unit .9
We shall direct that elections be held in the following voting groups
at the Employer's 27th and Y Streets, Omaha, Nebraska, plant :
(a) All employees in the boiler and engine room, including engi-
neers , firemen, temperature men, and oilers, but excluding all salaried
and clerical employees, watchmen, guards, production employees, and
all supervisors as defined in the Act;
(b) All production and maintenance employees, including weekly
and hourly paid scalers, checkers, gang leaders, weekly and hourly
paid yard drivers, restaurant employees, garage employees and truck
drivers, but excluding office and clerical employees, wholesale market
employees, watchmen, assistant foremen, foremen, superintendents,
and all other supervisors as defined in the Act.
Pending the outcome of the election hereinafter directed, we shall
make no final unit determination.
DIRECTION OF ELECTIONS 10
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, separate elections
by secret ballot shall be conducted as early as possible, but not later
than 30 days from the date of this Direction, under the direction and
supervision of the Regional Director for the Seventeenth Region, and
subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations-Series 5, as amended, among the em-
ployees in the voting groups described in paragraph 4, above, who were
employed during the pay-roll period immediately preceding the date
8 Matter of Gerber Products Company, 59 N. L it. B . 1362 , 1365; Matter of Memphis
Packing Company, supra; and Matter of Agar Packing and Provision Corporation, supra.
On November 2, 1943, the Board certified the Packinghouse Workers as the bargaining
representative in a separate unit of restaurant employees . Since that date, however, the
parties have included these employees within the coverage of the contract embracing the
production and maintenance employees at this plant.
8 See Matter of Agar Packing and Provision Corporation, supra.
10 Any participant in the elections herein may , upon its prompt request to , and ap-
proval thereof by, the Regional Director , have its name removed from the ballot.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this Direction of Elections, including employees who did not work
during said pay-roll period because they were ill or on vacation or tem-
porarily laid off, but excluding those employees who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the elections, and also excluding employees on
strike who are not entitled to reinstatement, to determine whether
the employees in voting group (a) desire to be represented, for pur-
poses of collective bargaining, by International Union of Operating
Engineers, Locals 38-38A, A. F. of L., or by Local 62, United Pack-
inghouse Workers of America, C. I. 0., or by neither; and whether
the employees in voting group (b) desire to be represented, for pur-
poses of collective bargaining, by Amalgamated Meat Cutters &
Butcher Workmen of North America, A. F. of L., or by Local 62,
United Packinghouse Workers of America, C. I. 0., or by neither.