Wilson Packing Co.

National Labor Relations Board - Board Decisions

Apr 28, 1942

40 N.L.R.B. 916 (N.L.R.B. 1942)

In the Matter Of WILSON PACKING COMPANY and LOCAL No. 38,
INTERNATIONAL UNION OF OPERATING ENGINEERS , AFFILIATED WITH
THE AMERICAN FEDERATION OF LABOR
Case No. R 3663.Decided April 08, 19142
Jurisdiction : meat packing industry
Investigation and Certification of Representatives : existence of question.
refusal to accord petitioner recognition ; election necessary
Unit Appropriate for Collective Bargaining : determination of whether power-
house employees shall constitute a separate bargaining unit held dependent
upon desires of employees, election to determine
Mr. R. C. Winkler, of Chicago, Ill., for the Company.
Mr. Roy M. Brewer, of Grand Island, Nebr., and Mr. B. A. Eaton,
of Omaha, Nebr., for the Engineers.
Mr. Herbert Vogt, of Chicago, Ill., for the P. W. O. C.
Mr. Charles W. Schneider, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 25, 1941, Local No. 38, International Union of Oper-
ating Engineers, affiliated with the American Federation of Labor,
herein called the Engineers, filed with the Regional Director for the
Seventeenth Region (Kansas City, Missouri) a petition alleging
that a• question affecting commerce had arisen concerning the repre-
sentation of employees of Wilson & Company, Inc., Omaha, Ne-
braska,' herein called the Company, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On February 24, 1942, 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 Relations Board Rules
and Regulations-Series 2, as amended, ordered an investigation and
i The name of the Company is , apparently incorrectly stated in the petition and
the notice * of hearing, as well as the caption , above, as Wilson Packing Company. Counsel
for the Company entered into a stipulation concerning its operations in 'which it Is
referred to as Wilson & Company , Inc. We assume that that is its correct name.
40 N. L. R. B., No. 161
916
WILSON PACKING COMPANY 917
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
On March 10, 1942, the Regional Director issued a notice of hear-
ing, and on March 17, 1942, a notice postponing hearing, copies of
which were duly served upon the Company and the Engineers, and
upon the Congress of Industrial Organizations, and the Packinghouse
Workers Organizing Committee, herein called the P. W. O. C., labor
organizations claiming to represent employees directly affected by
the investigation. Pursuant to notice, a hearing was held on March
24, 1942, ,at Omaha, Nebraska, before Paul, Nachtman, the Trial
Examiner duly designated by the Chief Trial Examiner. The Com-
pany, the Engineers, and the P. W. O. C. were represented at and
participated in 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 made several rulings on motions and on objections
to the admission of evidence. The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors -we're corn-
mnitted. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Wilson & Company, Inc.. is a Delaware corporation organized in
1925 and having its principal office and place of business in Chicago,
Illinois. It is engaged in- the purchase and slaughter of livestock,
and the processing, sale, and distribution of meat and meat products.
It operates plants at Los Angeles, California; Columbus, Georgia ;
Albert Lea, Minnesota; New York City, New York; Oklahoma City,
Oklahoma; Cedar Rapids, Iowa; and Kansas City, Kansas. It has a
subsidiary selling company, Wilson and Company, organized under
the laws of the State of New Jersey, which operates about 90 whole-
sale warehouses throughout the United States from which it sells
meat. products of Wilson & Company, Inc. The Company also
operates a plant at Omaha, Nebraska, which is the plant here involved.
For the fiscal year ending October 31, 1941, the volume of business
at the Omaha plant exceeded 100 million pounds, with a value in
excess of $15,000,000. During the same period the Company pur-
chased approximately 80 percent of the livestock handled ate its
Omaha plant within the State of Nebraska and in excess of 17 per-
cent of such livestock outside the State of Nebraska. Of the total
volume of meat and meat products slaughtered and processed, as
aforesaid, in excess of 50 percent was sold and distributed by the'
- 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Omaha plant to, into, and through States of the United States other
than the State of Nebraska. The Company, employs approximately
1,100 production and maintenance employees at the Omaha plant.
II. THE ORGANIZATIONS INVOLVED
Local No. 38, International Union of Operating Engineers, is a
labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
United Packinghouse Workers of America is a labor organization
affiliated with the Congress of Industrial Organizations. Through
its Local No. 62, it admits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 6, 1941, the Engineers notified the Company that
it represented a majority of the employees in the Company's "en
gineering unit" and requested bargaining conferences. The Com-
pany did not grant the requested recognition. The Engineers repre-
sents a substantial number of employees in the unit which it alleges
to be appropriate.2 The P. W. O. C., according to testimony adduced
at the hearing, also represents employees in the alleged appropriate
unit. Since February 1939 the Company has negotiated with the
P. W. O. C. on a plant-wide basis, including 'the group claimed by
the Engineers. No contracts have resulted, however.
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REI'RESENTA'IION 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 Engineers contends that the engineers, firemen, oilers, and
temperature men employed at the Company's Omaha plant constitute
an appropriate unit. The Company and the P. W. O. C. contend
2 A report of a field examiner for the Board , introduced in evidence , discloses that
the Engineers submitted to the field examiner 14 membership cards of persons employed
by the Company within the alleged appropriate unit. There are approximately 17
persons employed in that unit.
WILSON PACKING COMPANY 919
that the unit-requested by the Engineers is inappropriate for the
reason that the appropriate unit is plant-wide.
The group claimed by the Engineers constitutes the staff of the
plant's powerhouse.3 Although there is some slight conflict in the
testimony, the group appears to consist of 1 chief engineer and 16
other men under his supervision : 4 engineers; 4 firemen, 3 oilers, 1
boiler room maintenance, man, 3 temperature men, and 1 swing man.
The powerhouse furnishes power (apparently both steam and electri-
cal) to operate all the plant machinery. It is in operation 24 hours
a day. Gas is used for fuel. The work of the group claimed by the
Engineers appears to be connected exclusively with the operation of
the powerhouse machinery, the generation of steam and electricity,
and the operation and maintenance of machinery for refrigeration.
Some of this work is performed in the plant in checking various in-
struments, valves, and equipment under the care of the powerhouse
employees. The work is of a skilled and technical character. The
four engineers are required by municipal ordinance to be licensed.
The wage rate of the group is higher than that of the plant average,
although it appears that some of the most highly skilled production
employees may be higher paid.
The Company and the P. W. 0. C. contend that the employees in
the proposed unit are closely associated with the production and
maintenance group and that the bargaining history makes the pro-
posed unit inappropriate. The 'Company has negotiated with the
P. W. 0. C. on a plant-wide basis over a period of several years. No
written agreements have resulted however. Although a grievance
committee of the P. W. O. C. has functioned since June 1938 it has
handled no grievances for the powerhouse group.4
We are of the opinion that, under the circumstances, the power-
house employees could function either as a separate unit or as part
of a single industrial unit. Accordingly, we shall direct an election
8 Variously referred to in the record , but "powerhouse" appears to be the correct
designation
'The P. W. O. C. notified the Company about June 1938 that it represented a majority
of the Company's employees On February 16, 1939, the Regional Office of the Board, in
a letter to the Company , requested a statement of the lattei 's position with respect to (1)
the appropriateness of a bargaining unit of hourly paid and piece -work production and main-
tenance employees , exclusive of supervisory employees having the right to hire or fire, office
forces, salesmen , and truck drivers , and (2 ) recognition of the P W 0 C within such unit
On February 22, 1939 , the Company replied that it had bargained with the P W 0 C
as plant-wide representative , had never questioned either the unit or the P W. O C.'s
majority , expected to continue that bargaining, and stated that no question concerning
representation of its employees had arisen The P W 0 C representative stated at the
hearing that on the basis of this letter the P W 0 C withdrew a petition for certification
which it had filed Counsel for the Company stated at the heaung that since February
1939 the Company has recognized the P W 0 C as the exclusive representative of its
employees on a plant -wide basis About March 5, 1940, the P W 0 C submitted a con-
tract. Negotiations followed but no written contract was entered into The testimony
indicates that since June 1938 there have been from 60 to 75 conferences between the Com-
pany and the P. W O. C with respect to bargaining negotiations and grievances
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the employees in this group to determine whether they desire
to be represented by the Engineers or by the P. W. O. C. or by neither.
If the majority choose the Engineers, they will constitute a separate
unit for bargaining purposes; otherwise the petition will be dismissed.
The Engineers apparently desires to include the chief engineer in
the bargaining unit. Inasmuch as he is in charge of the powerhouse
and has supervision over the remaining employees in,the proposed
unit, we shall exclude him from the voting group.
VI. THE DETERMINATION OF REPRESENTATIVES
0
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. We shall
direct that the employees of the Company eligible to vote in the elec-
tion shall be the engineers, firemen, oilers, and temperature men, in-
cluding the swing man and the boiler room maintenance man, but ex-
cluding the chief engineer, employed by the Company 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.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following : `
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the represen-
tation of employees of Wilson & Company, Inc., Omaha, Nebraska,
within the meaning of Section 9 (c) and Section 2 (6) and (7) 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 Relations
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 DIRECTED that, as part of the investigation authorized
by the Board to ascertain representatives for the purposes of collective
bargaining with Wilson & Company, Inc., Omaha, Nebraska, and
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 Election,
under the direction and supervision of the Regional Director for the
Seventeenth Region , Kansas City, Missouri, 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 engineers,
WILSON PACKING COMPANY 921
firemen, oilers, and temperature men, including the swing man and
the boiler- room maintenance man, who were employed by the, Com-
pany during the pay-roll period immediately preceding the date of
this Direction of Election, including 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 tem-
porarily laid off, but excluding the chief engineer and employees who
have since quit or been discharged for cause, to determine whether
they desire to be represented by Local 38, International Union of Op-
erating Engineers, affiliated with the American Federation of Labor,
or by Local 62, United Packinghouse Workers of America, affiliated
with the Congress of Industrial Organizations, for the purposes of
collective bargaining, or by neither.