Wilson & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1944

56 N.L.R.B. 1229 (N.L.R.B. 1944)

In the Matter Of WILSON & CO., INC. andUNITED PACKINGHOUSE WORK-
ERS OF AMERICA, LOCAL #3, CIO
Cases Nos. 18-R-985 to 18-R-987 inclusive.-Decided June 6, 1944
Mr. Richard' C. Winkler and Mr. M. R. Swanson, of Chicago, Ill.,
for the Company. .
Mr. Harold J. Smith and Mr. E. R. Fitzpatrick, of Cedar Rapids,
Iowa, for the Union.
Mr. William Strong, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
11
STATEMENT,OF THE CASE
Upon petitions duly filed by United Packinghouse Workers of
America, Local #3, CIO, herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Wilson & Co., Inc., Cedar Rapids, Iowa, herein called
the Company, the National Labor Relations Board, having ordered
that the cases be consolidated, provided for an, appropriate hearing
upon due notice before Stephen M. Reynolds, Trial-Examiner. Said
hearing was held at Cedar Rapids, Iowa, on May 5, 1944. The Com-
pany and the Union appeared and participated. All parties were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. The Company moved for dismissal of
the petition on various grounds. The Trial Examiner reserved ruling
for the, Board. The motions are denied. All parties were afforded
an opportunity to file briefs with the Board. '
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a Delaware corporation with principal offices in
Chicago, Illinois. The Company operates a plant at Cedar Rapids,
56 N. L. R B ., No 220.
557784-45-vol' 56-79 1229
1230, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iowa, where it is engaged in slaughtering livestock and processing
and distributing meats. About 3 percent of the livestock slaughtered
annually originates outside the State of Iowa,' and about 75 percent
of the finished products is shipped to points outside that State.
The Company also operates a wholesale market at Cedar Rapids,
Iowa, contiguous to the main plant., The market is under the direct
supervision of the "branch'house department" at Chicago, which con-
trols similar sales units throughout the United States.
We find that the Company, both with, respect to its plant and whole-
sale market operations, is engaged, in commerce within the meaning of
the National Labor Relations Act.
II. THE ORGANIZATION . INVOLVED
United Packinghouse Workers of America, Local *3, affiliated with
tht"Congress of Industrial Organizations, is -a labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of certain, of the Company's
employees.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the, Union represents a substantial number of
employees in the units hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and. (7) of the Act.
IV. THE APPROPRIATE UNITS
The Union filed three separate petitions , one in each ofthe cases
herein, in which it requested separate units, respectively, of plant,
clerks and scalers, . watchmen and patrolmen, and wholesale market
employees. At the hearing the Union stated that it desires the inclu-
sion of these groups of employees in an existing unit of production
and maintenance employees, in which the Union is the recognized exclu-
sive"bargaining agent, and from which the categories of employees
under consideration here were.excluded,'among others. The Company
opposes the desired inclusion of these employees in, the production and
' The Regional Director reported that-the Union submitted 49 application cards in Case
No 18-R.-985 , 15 cards in Case No 18-R-986, and 4 cards in Case No 18-R-987. At the
hearing it developed that there are about 63 employees in the unit petitioned for in Case
No 18-R-985, about 18 employees in the unit petitioned for in Case No 18-R-986, and
about 5 employees in the unit petitioned for in Case No 18-R-987.
WILSON & CO., INC. 1231%
maintenance unit, and further contends that these employees are man-
agement representatives, are ineligible for membership in the Union,
that the categories of employees in question "should not be affiliated
with any organization with members that work in the plant," and
should not be constituted into appropriate units for collective bargain-
ing purposes.
The plant clerks and scalers involved are salaried employees .2 The",
scalers weigh the production of production employees, and record the
weights. The plant clerks check the production claimed by the pro-
duction employees and the applicable pay rates, and engage in various
inventory taking functions. The actual computation of wages is per-
formed by time office employees. We find nothing in' the record to
support the Company's contention that, the plant clerks and scalers
are a part of management or that their duties are of such a nature as
to require the denial to them of rights under the Act.3
The plant police and watchmen are engaged in the protection of
Company property against fire, theft, and'other destructive or, illegal
acts and situations. Some appear to be, or were, uniformed and
members of the auxiliary military police, while others are not. All
are paid on a weekly salary basis. We have heretofore considered
the problem of the relationship of watchmen, guards, and other
types of plant-protection employees to management, and have con-
cluded that they are "employees" within the meaning of the Act and,
entitled to exercise rights under it.' Nothing in the instant case
compels a departure from that conclusion. Moreover, we see no
cogent reason for denying to these employees, if they so desire, repre-
sentation for collective bargaining purposes under the Act iby the
labor organization which represents other employees of the Com-
pany for similar purposes. Nothing in our experience leads us to
conclude that the exercise of rights under the Act by employees is
incompatible with their loyal, full, and honest performance of duties.
The remedy for inefficiency, disregard or neglect of duty, collusion
or other improper practices by employees lies implicitly in the power
of the employer to discipline and discharge.
The wholesale market employees whom the Union,seeks to repre-
sent pack-orders for local meat markets. In addition they receive
2 The Company also has hourly paid scalers, who are already in the production and
maintenance unit
3 There is some testimony to the effect that plant clerks "inform the employees as to
what rate is" for work performed and "the employment department" may ask a clerk to
"check up on an employee to find out when lie started to work, and if his work was satis-
factory, and if he has any complaints that they know of, of the work," and may perform
similar 'functions _ It is cleat, nevertheless, that these plant clerks do not have access to
such personnel or labor relations records or participate in such activities of that type as
to require the denial to them of collective bargaining rights under the Act
4 See, e g , Matter of Maryland Drr/dock Corp , 50 N L R B 363 , Matter of Drat 'o Corp
52 N L R B. 322.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stock from the plant, place it in coolers, and perform other general
functions.5 These packers work in the market 8 hours daily. After
4 p.' m. each day most of the packers work in the plant, performing,
production duties. They are paid, separately, and', on different bases,
for the work performed in the market and in the plant. The sole
objection to their participation in the selection of a collective bar
gaining agent, is on jurisdictional grounds. The wholesale' market
employees, clearly fall within our' ^ jurisdiction under the Act."
As we have stated, the-Union would add all of, these categories of
employees to the unit of production and maintenance employees;
while the, Company would deny to then collective bargaining rights
altogether.' , '
The production and maintenance employees are hourly paid, while
those under consideration here.:are on a weekly. salary basis. The
Company and different locals of the Union are parties to a contract
covering the production and maintenance employees at five plants
of the company, including the instant plant. The unit definitions,
under that contract for all plants except that here involved, exclude,
from the production and maintenance units employees in the cate-
ories which the Union here seeks to' add to its production and
maintenance unit.? We are of the opinion that in the light of all
considerations before us, the plant clerks and scalers, the plant police
and watchmen, and the wholesale market employees constitute sep-
arate appropriate units .8
The record is ambiguous as to the militarized status of all the plant
police and watchmen. "Since it appears that some of them may be
militarized, we shall find separate appropriate units of the mili-
tarized and the non-militarized plant -police and watchmen.
We find that all salaried plant clerks and scalers at the Cedar,
Rapids plant, excluding all supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes ' of , collective bargaining
within the meaning of Section 9 (b) of the Act.
We find that all Cedar Rapids wholesale market employees, ex-
cluding salesmen, 'office employees, and, all supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
'The , Union does not ask to represent the office employees , supervisors , and salesmen of
the wholesale market.
O See Section I, supra.
7 The unit for the instant plant is merely described as composed of all production and
maintenance employees."
8 The wholesale market employees who are employed by the Company in its main plant on
a part-time basis at production or other work, in addition to constituting a part of the
wholesale market employees which we find appropriate, may also be included within the
production and maintenance unit if their part-time employ at the plant is regular.
WILSON & CO., INC. 1233
such action , constitute a, unit appropriate for the purposes of - col-
lective,bargaining within the meaning of Section 9 (b) of tl_Ie Act.
We find ' that ' all militarized plant police and watchmen, at the
Cedar Rapids plant , excluding all supervisory employees with au-
thority to hire, prorimote , discharge , discipline ,- or otherwise effect
changes in the status of employees , or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
We find that ; all non militarized plant police and' watchmen, at
the- Cedar Rapids plant, 'excluding all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend 'such
action, constitute a unit appropriate for the purpose' s of collective'
bargaining within the meaning of Section 9 (b) of the Act.
V. THE - DETERMINATION OF REPRESENTATIVES
The Union would include Rex Liens among the employees in the
plant police and watchmen's unit., The Company asserts that he
should be excluded because he is the "assistant chief" of police. The
Company's .pay roll fails to"list ' Liens as "assistant chief." He is a
uniformed' patrolman, receiving the same rate of pay as the other
patrolmen. Until about 3'weeks preceding the hearing herein, Liens
was assigned to the night shift: While on- that .assignment he was
in charge of the other patrolmen and watchmen on the same shift;
however, he performed the functions of a regular patrolman. At the
time of the hearing, Liens was no longer on 'the night shift. It ap-
pears that most\of the watchmen .and patrolmen periodically change
shifts. The record fails to reveal who 'acts, as supervisor over the night
shift when Liens is not on it, nor does it reveal how often or how-long
Liens performed that function, nor whether he will be assigned that
function in the future. While there is also testimony that Liens
"did our fingerprint work in checking up on employees, and other,
confidential matters," it is not shown whether such work was assigned
exclusively to Liens, what the precise nature of the work was, and
whether it related to such matters and was of such a nature as to
place Liens in a supervisory or managerial category . "Sometimes"
Liens has substituted for the police chief during the latter's absence.
We are not persuaded from this state of the record that Liens is a
supervisory employee within the meaning of our definition. We
shall, therefore , include Liens in the militarized patrolmen's unit.
We shall direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot among the em-
ployees in the appropriate units who were employed during the
1234 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
pay-roll period immediately preceding the date, of the Direction of
Election herein, subject' to the limitations and additions set forth
in, the Direction.'
DIRECTION OF ELECTIONS
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 9, of National Labor
Relations Board Rules a"nd Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Wilson & Co.,
Inc., Cedar Rapids, Iowa, elections 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 Eighteenth Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III,
,Sections 10 and 11, of said Rules and Regulations, among the em-
ployees in the units found appropriate in Section IV, above, who
were employed"during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work during
said pay-roll period, because they were ill or on vacation or tempo-
rarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but
excluding any who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the elections,
to determine whether or not they desire to be represented by United
Packinghouse Workers of America, Local #3, affiliated with the Con-
gress of Industrial Organizations, for the purposes of collective
bargaining. '
1.
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