Wilson & Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1945

64 N.L.R.B. 1124 (N.L.R.B. 1945)

In the Matter of WILSON & COMPANY, INC. and UNITED PACKINGHOUSE
WORKERS of AMERICA, DISTRICT 8 (C. I. 0.), LOCAL 227
In the Matter Of WILSON & COMPANY, INC. and INTERNATIONAL BROTH-
ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, LOCAL UNION No. 886, A. F. L.
Cases Nos. 16-R-1406 and 16-R-1411, respectively.Decided Novem-
ber 30, 1945
Mr. R. C. Winkler, of Chicago, Ill., and Mr. Frank G. Anderson,
of Oklahoma City, Okla., for the Company.
Messrs. Joe Dernoncourt, Horace Gates, and Buck Whitaker, of
Oklahoma City, Okla., and Mr. A. J. Pittman, of Fort Worth, Tex., for
the C. 1. 0.
Mr. A. J. Moore, of Oklahoma City, Okla., for the Teamsters.
Messrs. William. L. Murphy and Roy Decker, of Oklahoma City,
Okla., for the E. R. C.
Mr. Stanley B. Korengold, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petitions duly filed by United Packinghouse Workers of Amer-
ica, District 8 (C. I. 0.), Local 227, herein called the C. I. 0., and
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No. 886, A. F. L., herein called
the Teamsters, each alleging that a question affecting commerce had
arisen concerning the representation of employees of Wilson & Com-
pany, Inc., Oklahoma City, Oklahoma, herein called the Company,
the National Labor Relations Board consolidated the cases arid pro-
vided for an appropriate hearing upon due notice before Glenn L.
Moller, Trial Examiner. The hearing was held at Oklahoma City,
Oklahoma, on August 15, 1945. At the hearing, the Employees Rep-
resentative Committee, herein called the E. R. C., filed a motion to
intervene in the proceedings. The Trial Examiner granted the mo-
64 N. L. R. B., No. 189.
1124
WILSON & COMPANY, INC. 1125
tion.1 The Company, the C. I. 0., the Teamsters, and the E. R. C.
appeared and participated. All parties were afforded full opportu-
nity to be heard, to examine and cross-examine witnesses, and to in-
troduce evidence bearing on the issues.
During the course of the proceedings, the Company and the E. R. C.
moved to dismiss the petitions filed by the C. I. O. and the Teamsters.
Ruling on the motions was reserved for the Board. For reasons here-
inafter stated, the motions are hereby denied. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. 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
L THE BUSINESS OF THE COMPANY
Wilson & Company, Inc., is a Delaware corporation with its prin-
cipal office and place of business in Chicago, Illinois. It is engaged in
the operation of 9 meat packing plants and 85 branch houses located
in the various States of the United States. Only the Company's Okla-
homa City plant is involved in this proceeding. The Company an-
nually receives at its Oklahoma City plant raw materials consisting
chiefly of livestock valued in excess of $1,000,000, of which approxi-
mately 10 percent is shipped to the Oklahoma City plant from points
outside the State of Oklahoma. The Company annually produces at
its Oklahoma City plant finished products valued in excess of $1,000,-
000, of which 80 percent is sold and shipped to points outside the State
of Oklahoma.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Packinghouse Workers of America, District 8, Local 227,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local Union No. 886, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the Company.
1 Subsequent to the lieaiing, the Boaid found that the E R C. was a company-dominated
union and, therefore, an illegal labor organization under the Act Matter of Wtilson h
Co Inc., et at., 63 N. L. It. B. 636. Inasmuch as the Company is thereby precluded from
recognizing the E It. C as a collective bargaining representative, the E. It. C. can have
no interest in or claim to representation justifiable in these proceedings.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE QUESTIONS CONCERNING REPRESENTATION
On or about June 15, 1945, the Teamsters informed the Company
that it desired recognition as the exclusive bargaining representative
of the Company's cross-country truck drivers. On June 23, 1945, the
C. I. O. filed a petition with the Board requesting certification as the
bargaining representative of the Company's hourly paid and piece-
work production and maintenance employees. The Company has re-
fused to accord recognition to either the Teamsters or the C. I. O. on
the ground that it has an existing contract with the E. R. C. which it
now urges as a bar to both petitions. However. as stated above, the
Board issued a Decision and Order on August 30, 1945, disestablish-
ing the E. R. C. for reasons of company domination and rendering in-
effectual its contract with the. Company. The contract, therefore, af-
fords no bar to a present determination of represelitatives.2
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Teamsters and the C. I. O. each represents a
substantial number of employees in the unit each alleges to be
i ppropriate.3
'We find that questions affecting commerce have arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the A t.
IV. THE APPROPRIATE UNITS
The C. 1. 0. seeks a unit of all hourly paid and piece-work production
and maintenance employees, including gang leaders and city truck
drivers, but excluding salaried production and maintenance employees,
office and clerical employees, cafeteria employees, wholesale market
employees, timekeepers, sectional timekeepers, all produce employees,
technical employees, plant-protection employees, firemen,4 salesmen
and stock buyers, cross-country truck drivers, and supervisory em-
ployees. The Teamsters desires to represent only the Company's cross-
country truck drivers. The Company contends that the Board should
adhere to the unit established by the Company's bargaining history
with the E. R. C., and urges the Board to find appropriate a single
unit which would include all production and maintenance employees,
whether hourly paid or salaried, both city and cross-country truck
2 see footnote 1, supra
3 The Field Examiner ieported that the Teamsters submitted S authorization cards out
of the 14 employees in the unit petitioned for Of the'.e S cards, 7 were dated May 1945,
and 1 was dated June 1945
The C I. 0 submitted 655 authorization cards out of the 1100 employees in the unit
petitioned for Of these 655 cards, 324 were dated between January and December 1944,
and 331 were dated between January and July 1945.
4 The Company states that it has no separate classification of firemen but that its plant-
protection employees are watchmen who also act as firemen.
WILSON & COMPANY, INC. 1127
drivers, firemen, and plant-protection employees. With exception of
the foregoing categories, the Company agrees to the exclusions desired
by the C. I. 0.
While we normally give considerable weight to the past bargaining
history of a company, we have refused to do so where, as here, the
company has been found to have dominated the union with which it
has carried on its collective bargaining, since such a bargaining history
cannot be said to reflect the true representation desires of the em-
ployees.' We shall, therefore, make our determination of the appro-
priate bargaining units without regard to the bargaining pattern
which previously existed between the E. R. C. and the Company.
As indicated above, the Teamsters seeks a unit of cross-country truck
drivers, excluding city truck drivers, inside plant-workers, clerical em-
ployees, and supervisory personnel. The Company takes the position
that, because of the close integration between the duties and interests
of the city drivers and the cross-country drivers, all truck drivers
should be placed in the same bargaining unit; further, it would include
both the cross-country truck drivers and the city truck drivers in the
broad unit of production and maintenance employees. The C. I. 0.,
however, which is the only bona fide union desiring to represent the
production and maintenance employees, seeks also to represent the city,
but not the cross-country drivers.
The record indicates that the cross-country and city truck drivers
receive the same rate of pay, are paid on the same weekly basis, and
get the same overtime compensation. The drivers frequently inter-
change duties, the cross-country drivers making city deliveries, and the
city drivers taking long distance trips. All drivers ring in at the
same place, share the same locker room, and take the physical examina-
tion required by the Interstate Commerce Commission for driving in
interstate commerce. The two groups are under the same supervision,
being subject to the direction of a single foreman.
From the foregoing, it appears that the cross-country truck drivers
and the city truck drivers are closely integrated in their functions
and enjoy a community of interest. We are, therefore, of the opinion
that all the truck drivers should be represented in the same bargain-
ing unit. We have frequently stated that truck drivers are a skilled
and functionally coherent group entitled to be represented in a
separate' bargaining unit,6 and since the C. I. 0. has not indicated
that it desires to include both the cross-country and the city truck
drivers in the production and maintenance unit, we shall exclude all
5 See Matter of Johnson Bronze Company, 59 N. L. R B. 957; Matter of New Idea, Inc.,
25 N L R B 265
0 See Matter-of Sutherland Paper Company, 55 N. L. R. B 38.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck drivers from such unit and place them in a separate bargaining
unit.
The C. I. 0. requests that the Board include within the production
and maintenance unit only employees who are paid by the hour or by
piece work; it would exclude from the unit any production and main-
tenance employee who receives a regular salary. The desire of the
C. I. 0. conflicts, however, with the Board's established policy of
refusing to delineate a bargaining unit by the manner in which the
employees are paid. The Board has repeatedly held that in deter-
mining the appropriate bargaining unit it will not distinguish between
employees paid on a salary basis and those paid on an hourly basis
solely on the ground of the difference in mode of payment; the method
of compensation must have a direct relation to the functions, skill, or
status of the employees before it may operate as a demarcation factor.7
In the instant case, the record presents no evidence affording a reason-
able basis for distinguishing between the salaried and the hourly paid
or piece-work production and maintenance employees. We are, there-
fore, of the opinion that all production and maintenance employees,
whether they are salaried, hourly paid, or compensated by piece work,
should be included in the production and maintenance units
The Company would include its plant-protection personnel in the
unit of production and maintenance employees, whereas the C. I. 0.
would exclude them. The Company has several employees who act
both as watchmen and firemen and are responsible for the protection
of the plant. Although they bear arms, they are neither militarized,
uniformed, nor deputized; nor does the record show that they perform
any monitorial duties. We shall include these employees in the pro-
duction and maintenance unit.'
We find that each of the following groups constitutes a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section,9 (b) of the Act:
1. All production and maintenance employees, including gang
leaders and plant-protection employees, but excluding office and
clerical employees, cafeteria employees, wholesale market employees,
timekeepers, sectional timekeepers, produce employees, technical em-
ployees, salesmen and stock buyers, truck drivers, and all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively
recommend such action.
4 See bratte> of Jones and Laughlin Steel Cot pot at ion , Pittsburgh Works, 57 N. L. R B.
357, Matter of Edgeu,ater Steel Conipaniy, 556 N L It 11 1778
8 The only reference in the record to salaried production and maintenance employees con-
cern the scalers, pact of whom the C I 0 contends are salary paid. We shall include
all scalers , whether hourly or salary paid , in the bargaining unit
° See Hatter of Congoleum Nairn, Inc, 64 N L It B 95, and cases cited therein. Cf.
Matter of Kelsey -Hayes Wheel Company, 62 N L R B 421.
WILSON & COMPANY, INC. 1129
2. All city truck drivers and cross -country truck drivers , excluding
the foreman , the assistant foreman, and all other supervisory em-
ployees with authority to hire, promote , discharge, discipline , or other-
wise effect changes in the status of employees , or effectively recom-
nlend such action.
V. THE DETERMINATION OF REPRESENTATIVES
Inasmuch as the C. I. O. has given no indication that it wishes to
represent the cross-country and city truck drivers in the bargaining
unit which we have heretofore found appropriate, we shall not place
its name on the ballot in the election to determine a bargaining repre-
sentative for such employees. Should the C. I. 0., however, desire to
appear on the ballot, it may do so by notifying the Regional Director
within five (5) clays of the date of the issuance of the Decision and
Direction of Election herein, that it desires to participate in such
election.
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 pay-
roll period immediately preceding the date of the Direction of Elec-
tions 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 Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Wilson & Com-
pany, Inc., Oklahoma City, Oklahoma, elections by secret ballot shall
be conducted as early as possible, but not later than sixty (60) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Sixteenth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and It, of said Rules and Regulations,
among the following employees who were employed during the pay-
roll period immediately preceding the date of this Direction, includ-
ing employees who did not work during said pay-roll period because
they were ill or on vacation or temporarily laid off, and including
employees in the armed forces of the United States who present them-
selves 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:
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. All production and maintenance employees, including gang
leaders, and plant-protection employees , but excluding office and
clerical employees , cafeteria employees , wholesale market employees,
timekeepers , sectional timekeepers , produce employees , technical em-
ployees, salesmen and stock buyers, truck drivers, and all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively rec-
ommend such action, to determine whether or not they desire to be
represented by United Packinghouse Workers of America, District 8,
Local 227, C. I. 0., for the purposes of collective bargaining.
2. All city truck drivers and cross -country truck drivers , excluding
the foreman , the assistant foreman, and all other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees , or effectively recommend
such action , to determine whether or not they desire to be represented
by International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, Local Union No. 886, A. F. L., for the
purposes of collective bargaining.
MR. GERARD D. REiLIY took no part in the consideration of the above
Decision and Direction of Elections.