Wilson & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 24, 1941

37 N.L.R.B. 944 (N.L.R.B. 1941)

In the Matter of WILSON & CO., INC. and PACKINGHOUSE WORKERS
ORGANIZING COMMITTEE, LOCAL No. 20, AFFILIATED WITH THE
C..I.O.
Case No. R-323-5.-Decided December 24, 1941
Jurisdiction : meat packing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal of Company to accord union recognition ; conflicting claims of rival
representatives;, stipulation by the parties at the hearing that question con-
cerning representation has arisen ; prior practice of "mail balloting" by em-
ployees in active military service discontinued in view of administrative diffi-
culties, resulting delays, issues raised concerning conduct of elections, and
relatively small returns ; eligibility provisions in Directions of Elections to
be construed to provide only that those employees who appear in person at
the polls are entitled to vote; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees of the Company at its Kansas plant, including plant checkers, but
excluding plant clerks, supervisors, foremen, assistant, foremen, watchmen,
superintendents, office workers, department clerks, wholesale market em-
ployees, and truck drivers.
Mr. James D. Cooney, of Chicago, Ill., for the Company.
Mr. Harry C. Clark, of Kansas City, Mo., for P. W. O. C.
Mr. Hugh Brownfield, of Kansas City, Kans., for E. R. C.
Mr. Herman J. De Koven, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 2, 1941, and September 30, 1941, respectively, Pack-
inghouse Workers Organizing Committee, Local No. 20, affiliated with
the Congress of Industrial Organizations, herein called P. W. O. C.,
filed with the Regional Director for the Seventeenth Region (Kansas
City, Missouri) a petition and an amended petition alleging that a
question affecting commerce had arisen concerning the representation
37 N. L. R. B., No. 157.
944
WILSON & CO., INC. 945
of employees of Wilson & Co., Inc.,1 herein called the Company, at its
plant at Kansas City, Kansas, herein called the Kansas plant, and
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On October 20, 1941, 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 Rela-
tions Board Rules and Regulations-Series 2, as amended, ordered an
investigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
On October 24, 1941, the Acting Regional Director issued a notice
of hearing, copies of which were duly served upon the Company,
P. W. O. C., and upon Employees' Representative Committee, unaf-
filiated, herein called E. R. C., and International Union of Operating
Engineers, Local 6 and 6-A, affiliated with the American Federation-
of Labor, labor organizations claiming to represent employees di-
rectly affected by the investigation. Pursuant to notice, a hearing
was held on November 3, 1941, at Kansas City, Missouri, before Clar-
ence D. Musser, the Trial Examiner duly designated by the Chief
Trial Examiner. The Company, P. W. O. C., and E. R. C. were rep-
resented by counsel and participated in the hearing. International
Union of Operating Engineers, Local 6' and 6-A, did not appear
at 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 the Trial
Examiner granted a motion of P. W. O. C. to amend the amended
petition so as to exclude general office workers from the unit which
P. W. O. C. alleged therein to be appropriate. This ruling is hereby
affirmed. On November 7, 1941, E. R. C. filed a brief, which the
Board has considered.2
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Wilson & Co., Inc. is a Delaware corporation, with its principal
place of business in Chicago, Illinois. It operates meat-packing
1 The Company is designated "Wilson and Company" in the formal documents ; however,
the parties agreed that they be amended to show the name of the Company as "Wilson &
Co., Inc " and they are hereby so amended.
2A stipulation was entered into by the parties, which was approved by the Trial
Examiner, for the correction of the transcript of the testimony with respect to the
eligibility date requested by P. W 0 1C, and with respect to various comments by the
Trial Examiner regarding the Board's policy with respect to an eligibility date ; the
parties agreed that this stipulation be made a part of the record It is hereby ordered
that this stipulation be made a part of the record and that the transcript be corrected in
accordance with the stipulation.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plants at Los Angeles, California; Columbus, Georgia; Albert Lea,
Minnesota; Omaha, Nebraska; New York, New York; Oklahoma
City, Oklahoma, and Cedar Rapids, Iowa. It also maintains a pack-
ing house at Kalisas City, Kansas, which is the plant involved herein,
where it purchases and slaughters livestock and processes and manu-
factures various meat products and byproducts. The Company also
has a subsidiary selling company, Wilson & Co., a New Jersey
corporation, which operates approximately 90 wholesale warehouses
throughout the United States from which it sells meat products of
the Company.
During the fiscal year ending October 30, 1940, over $10,000,000
worth of livestock and other products were received at the Kansas
plant, over 50 percent of which was shipped from points outside the
State of Kansas. During the same period, over $12,000,000 worth
of products were shipped from the Kansas plant, over 70 percent of
which was shipped to points outside the State of Kansas. These
figures reflect substantially the Company's operations for 1941.
The Company admits that it is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Packinghouse Workers Organizing Committee, Local No. 20, is
a labor organization affiliated with the Congress of Industrial Organ-
izations and admits to membership employees of the Company at the
Kansas plait.
Employees' Representative Committee.is an unaffiliated labor or-
ganization and admits to membership employees Of. the Company
at the Kansas plant.
III. THE QUESTION CONCERNING REPRESENTATION
P. W. O. C. alleges in its original and amended petitions that on
or about August 20, 1941, if forwarded a registered letter to the
Company advising it-that P. W. O. C. "now claimed a majority of
the production and maintenance employees and requesting recogni-
tion as a collective bargaining agency" and that no reply has been
received from the Company. The amended petition further alleges
that E. R. C. claims to represent employees in the unit which P. W.
O. C. claims is appropriate. , The parties stipulated at the hearing
that a question concerning representation has arisen and agreed that.
P. W. O. C. and E. R. C. each has a substantial interest in, or repre-
sents a substantial number of, employees at the' Kansas plant. State-
ments, of the Field Examiner introduced in evidence disclose that.
WILSON & CO., INC. 947
P. W. O. C. and E. R. C. each represents a substantial number of
employees in the unit hereinafter found to be appropriate.3
We find that a question has arisen concerning the representation
of employees of the Company at the Kansas plant.
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 I 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
The Company and P. W. O. C. agreed that all production and main-
tenance employees at the Kansas plant, including plant checkers,
should be included in the appropriate unit, and all the parties agreed
that plant clerks, supervisors, foremen, assistant foremen, watchmen,
superintendents, and office workers should be excluded therefrom 4
The Company believes that "department clerks" should be excluded
from the appropriate unit. These were described by it as clerks who
work with the killing gangs but act as supervisors and do no work
in the gangs, keep records, make tests, are paid on an hourly or
weekly basis, and act in no different capacity than steady time clerks
who work a definite nuinber of hours per week. ,
P. W. O. C. ,stated that, in reliance on the Company's description
of "department clerks," it agrees to the exclusion of the latter on the
ground that they -exercise supervisory, control. • E. R. C. -expressed
no opinion on this matter. In vied- of the clerical and supervisory
3 The Company stated that in September 1941 it had approximately 2,000 employees at
they Kansas plant.
The Field Examiner repotted that P W. 0. C presented 1274 authorization cards, 973
of winch bore apparently genuine signatures . that these 973 cards bore the signatures of
persons appearing on the Company ' s production and maintenance pay ioll of September
6, 1941 , that , of these 973 cards , 139 were variously dated between 1937 and 1940, 821
were variously dated between January and October 1941, and 13 were inaccurate or
incomplete as to date The Field Examiner further reported that E R C presented 1136
authorization cards, 823 of which bore apparently genuine signatures; that these 823 cards
bore the signatures of persons appearing on the Company ' s production and maintenance
pay roll of September 6, 1941 ; that, of these 823 cards, 495 were variously dated in
November and December 1940, 255 were vaiiously dated between January and October
1941, and 73 were incomplete as to date
4E R C expressly agreed to the stated exclusions .' Although not expressly asked if it
agreed to those included , IS. R C made no objection to the latter ; further, it was a party
to the stipulation that a question concerning representation has arisen , which includes
production and maintenance employees among those whose representation is in question
E. R. C is therefore apparently in agreement with the Company and P. W. 0. C. on those
included
'948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
functions of "department clerks" as described by the Company, we
shall exclude them from the appropriate unit.
While no mention of wholesale market employees was made at the
hearing in the discussion on the appropriate unit, such employees
were, in the amended petition, expressly excluded by P. W. O. C.
-from the unit claimed by it to be appropriate and were expressly
excluded, in the stipulation of the parties that a question concerning
representation _has arisen, from the group of employees whose repre-
sentation is in question. Under these circumstances we shall exclude
wholesale market employees from the appropriate unit.
The parties are in disagreement as to the inclusion of "truck
drivers," which term was used by the parties at the hearing and will
herein be used to describe the persons appearing on the Company's
garage-department pay roll, which, as of the week ending September
,6, 1941, was composed of 30 individuals, 25 or 26 of whom are truck
drivers proper and 4 or 5 of whom are garagemen or mechanics.
The parties agreed that the truck drivers proper and the garagemen
or mechanics should be treated alike.
E. R. C. and the Company wish the truck drivers included in the
appropriate unit, urging that they would otherwise not be repre-
sented at all because they do not want to join "the A. F. of L. team-'
sters' union." The Company points to the fact that sometime ago,
when the teamsters' union attempted to organize the truck drivers
by obtaining a few members and calling a strike,' only four drivers
struck, "which was some evidence that that was all of the members
that belonged to the Teamsters," and that this union, agreed with
the Company at that time that if it would reinstate these four men
economic pressure would not be used to force the truck drivers to
join the union. The 'Company also states that the truck drivers in
question are local delivery men, not making deliveries beyond what is
considered "the metropolitan area of Kansas City," and therefore
report directly to the superintendent of the plant, as all other em-
ployees do, unlike over-the-road truck drivers in other plants of the
Company, who haul to other cities and who must report to the motor
vehicle or transportation department. The Company further points,
out that probably all the truck drivers at the Kansas plant at one'
time worked in the plant and were promoted to their present posi-
tions, and that when the, business shifts and there is less work
for them, they are sent back to work in the- plant. The Company
believes that the truck drivers at the Kansas plant "have always been
a part of the unit for bargaining purposes"; however, the Company
has no agreement with any labor organization covering the truck
drivers or any other employees at the Kansas plant.
5 While the record does not disclose when this sti ike occurred , It appears from the brief
of E R C. that it took place within the past year.
WILSON & CO., INC. 949
P. W. O. C. urges that the truck drivers be excluded from the
emit, pointing out that they are not a part of the plant proper and
do not work in the plant to any extent. It further states that its
basic reason for not wanting them as part of the bargaining unit is
that there is "a present controversy" among such drivers ; that there
seems to be "some organization in there" that has made attempts to
bargain with the Company; and that the A. F. of L.'s meeting with
the Company sometime ago during the strike indicates that it has
been bargaining or making attempts to bargain. The Company de-
nies that the A. F. of L. has been attempting to bargain with it and
contends that it met with the Company merely to get their four
striking members reinstated.
It appears that four of the truck drivers in question may be mem-
bers of the teamsters' union. However, the latter union was not
served with notice of hearing and consequently did not appear at
the hearing. As for representation among the truck drivers by
E. R. C., the latter's counsel stated at the hearing that he does not
know whether E. R. C. "has been recognized in so far as bargaining
rights with the garagemen is concerned," though it is his understand-
ing that such is the case, and that "if there has been any bargaining
between the Company and the E. R. C., there has been bargaining for
the rights of these garagemen and truck drivers." The Company
stated that for many years E. R. C. "has had a representative of the
truck drivers at this plant [meaning the Kansas plant] and they have
been represented by a man who claimed that he represented the
truck drivers." It appears from the record that E. R. C. has some
representation among the truck drivers.6
Under all the circumstances of this case, including the differences
between the functions of the truck drivers and those of other em-
ployees at the Kansas plant, the traditional form which organization
of truck drivers has taken, and the fact that we have excluded such
employees from production and manitenaiice units in other plants
of the Company,' we are of the opinion and find that the truck drivers
in question should be excluded from the appropriate unit.
U It appears that the president of E •R C is one of the truck drivers in question Also,
one of the afore-mentioned statements of the Field Examiner indicates that 18 authoriza-
tion cards of "Garage Emplol ees" were submitted to him by E R. C , though the record
does not definitely disclose whether these cards bore the signatures of persons,appearing
on the Company's garage-department pay roll
See Matter of Wilson it Co, Inc. and Local 12209, District 50, United Mine Workers
of America, 36 N. L R B 570; Matter of Wilson & Co , Inc and International
Itrotherhood of Teamsters, Cliaaffears, Stablemen and Helpers of America, Local #202,
A I" of L, 2.5 N L R B 938, Matter of Wilson & Co, Inc and Local No 25,
United Packinghouse Worl,ei s of Amer ica, of P. IV 0. C , C 1 0 , 18 N L R I: 958 ,
Matter of Wilson it Company and L U #6, United Pact, nyhonse Workers of America of
Pacliiiglioase Workers 0ryrni inq Committee, C 1 0, 14 N L R B 283. Matter of
Wilson it Co and United Meat IVorl,ers Local Industrial Union No 635, C I 0 , 12
N I. It B. 319 Cf ,l[atter of Wilson it Co and United Meat Worheis Local Industrial
433257-42-voi, 37 61
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all production and maintenance employees of the
Company at the -Kansas plant, including plant checkers, but excluding
plant clerks, supervisors, foremen, assistant foremen, watchmen, su-
perintendents, office workers, department clerks, wholesale market
employees, and truck drivers, constitute a unit appropriate for the
purposes of collective bargaining, and that said unit will insure to
employees of the Company at the Kansas plant the full benefit of their
right to self-organization and to collective bargaining and otherwise
will effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The parties agreed at the hearing that an election should be held.
In a letter dated November 6, 1941, to the Board, counsel for P. W.
O. C. stated that all parties wish an election regardless of the Board's
decision on the inclusion of the truck drivers, and E. R. C. stated at
the hearing that it wishes to be on the ballot even if the Board
excludes the truck drivers from the, appropriate unit.
We find that the question which has arisen concerning representa-
tion can best be resolved by, and we shall accordingly direct, an
election by secret ballot, and we shall accord a place on the ballot
to both P. W. O. C. and E. R. C.
P. W. O. C. requests that the pay-roll period ending September
6 be used to determine eligibility to vote because of the uncer-
tainty as to what may happen in the future and because it knows
that this pay-roll period is representative. The Company states that
this pay-roll period would not be representative inasmuch as it is
the "wind-up" of the selling season and the plant pay roll is probably
as low at that time as at any time of the year; however, the Company
takes no affirmative position on the date for determining eligibility
to vote. E. R. C. stated at the hearing that the pay-roll period
should be one between the date of the hearing and the date of election
and that it should not be one selected by an interested party; in its
brief, E. R. C. requests that the pay-roll date be fixed as that imme-
diately preceding the date of the Direction of Election.
P. W. O. C. further requests that persons who have not been em-
ployed by the Company for 60 days prior to the date of the election
should not be permitted to vote. This request appears to be grounded
upon the apprehension that the Company may pad its pay roll just
before the election. The 60-day requirement urged by P. W. O. C.
is based upon the Company's, policy of according seniority status,
for the purposes of lay-off and rehiring, to employees who have been
Union A TO 635, C I 0, 9 N L R B 650, modified in Matter of Wilson & Co and United
Meat Workers Local Industrial Union No. 635 , C 1 0, supra , and in Matter of Wilson
& Go, Inc and International Brotherhood of Teamsters , Chauffeurs , Stablemen, and Helpers
- of-America , Local #202 , A. F of L, supra
WILSON & CO., INC. 951,
on the pay roll for 60 days, and denying such status to those who
have been off the pay roll continuously for 60 days, P. W. 0. C. con-
tending that those with seniority are more or less permanent or
regular employees and should be the only ones permitted to vote.
The Company believes that all employees appearing on the pay
roll to be used should be permitted to vote and states that the cost
to the Company of adding additional people is in itself a sufficient
deterrent against the padding of its pay roll. The Company further
states that those who appear on any pay roll designated by the Board
will be regular employees, even though they may not have worked
for the Company for 60 days; that it is assumed that an individual
who appears on the. pay roll will work for the Company for an-in-
definite period; that the Company does not "pick up floaters and just
work them a few days," though it sometimes has special employees
who load hides. The Company.also points out that one may be a
regular employee and yet, by reason of his transfer from one depart-
ment to another, for example, not have seniority. E. R. C. does not
agree that a person should be required to have been in the Company's
employ for 60 days in order to be permitted to vote.
We do not believe that the record discloses any reason for a depar-
ture from our usual practice of using a current pay-roll date. Nor
do we perceive, any reason for denying the right to vote to persons
who have not been employed by the Company for 60 days prior to the
date of election. Accordingly, we shall direct that the employees
eligible to vote shall be those in the appropriate unit who were em-
ployed 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. _
In Matter of Cudahy Packing Company and Local 55, United
Packinghouse Workers of America, of Packinghouse Workers Or-
ganizing Committee, C. I. 0.,8 we decided for reasons therein stated
that employees in the active military service or training of the United
States, should be eligible to vote even though such employees were
not working during the pay-roll period selected as determinative
of eligibility. Since eligibility was extended to such employees, we
have afforded them an opportunity to vote in elections principally
by mail ballots because in the majority of instances, the persons in
the group affected were at the time of the election no longer located
in the vicinity of the plant. While the reasons which impelled our
adoption of the policy of extending eligibility to this group of em-
ployees are equally valid today, administrative experience in the
ensuing months has demonstrated conclusively that it is impracticable
to provide for mail balloting by this group. Administrative difl'i-
8 29 N. L R B , No. 132.
`952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
culties in determining the present location of men in military service
have constantly increased with , concomitant delays in arrangements
for elections. The actual voting of the group by mail has seriously
retarded the completion of elections in many cases , since substantial
time has had to be allowed for receipt and return of mail ballots by
eligibles in remote sections of the country. In addition, this form
of balloting has frequently raised material and substantial issues
relating to the conduct of the ballot and the election. On the other
hand, actual returns from such mail ballots have been relatively
small. Since time is of the essence in finally determining a collective
bargaining agent when 'questions concerning representation affecting
commerce arise , we are of the opinion that the policies and purposes
of the Act will be best effectuated by continuing to recognize the
eligibility of this group of employees but by discontinuing the prac-
tice of mail balloting. Accordingly, we are construing the eligibility
provision in our directions of election relating to this group of em-
ployees to provide only that those employees in the group who-appear
in person at the polls to cast a ballot are entitled to vote, and we
have administratively instructed our Regional Directors to that
effect.
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 Wilson & Co ., Inc., at its Kansas City,
Kansas, plant , within the meaning of Section 9 ( c) and section 2
( 6) and (7) of the National Labor Relations Act.
2. All production and maintenance employees of the Company at
its Kansas City, Kansas, plant, including plant checkers, but exclud-
ing plant clerks , supervisors , foremen, assistant foremen, watchmen,
superintendents , office workers , department clerks, wholesale market
employees, and truck drivers, constitute a unit appropriate for the
purposes of collective bargaining, within the meaning 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 Rela-
tions Act, 49 Stat . 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended , it is hereby
WILSON & CO., INC. 953
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Wilson & Co., Inc., at its Kansas City, Kansas, plant, 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 of Elec-
tion, under the direction and supervision of the Regional Director
for the Seventeenth Region, acting in this matter as agent for the
National Labor Relations Board and subject to Article III, Section
9, of said Rules 'and Regulations, among all production and mainten-
ance employees of the Company at its Kansas City, Kansas, plant,
who were employed during the pay-roll period immediately preced-
ing the date of this Direction, including plant checkers and employees
who did not work during such pay-roll period because they were
ill or on vacation or in the active military service or training of the
United States, or temporarily laid off, but excluding plant clerks,
supervisors, foremen, assistant foremen, watchmen, superintendents,
office workers, department clerks, wholesale market employees, and
truck drivers, and employees who have since quit or been discharged
for cause, to determine whether or not they desire to be represented
by Packinghouse Workers Organizing Committee, Local No. 20,
affiliated with the Congress of Industrial Organizations, or by Em-
ployees' Representative Committee, for the purposes of collective
bargaining, or by neither.